Ramesh Pal vs Hans Raj Kapoor and another

M.S. Liberhan, J.—Relevant facts for the decision of this revision petition are that the Respondent (hereinafter referred to as the Petitioner) got an exparte decree of ejectment against the Petitioner (hereinafter referred to as the Respondent) on 14-10-1978. The Respondent applied for setting aside the exparte ejectment order on the grounds that he was not personally served and the Petitioner got a substituted service effected in collusion with the process-server and the proceedings were kept concealed, as such there was no due service.

The Petitioner controverted the said facts and contended that the Respondent had a knowledge of the proceedings pending, inasmuch as the Respondent''s mother was living in the same house in which the Respondent was living, she had received the summons by registered post and in spite of that she did not appear either in her personal capacity or as guardian of the minors The Court-guardian was appointed. The Court-guardian also informed her with respect to the pendency of the ejectment proceedings under postal certificate. In spite of that she did not appear. It was further contended that the application for setting aside the exparte ejectment order was barred by them.

The Rent Controller refused to set aside the exparte ejectment order and maintained that the Respondent had the knowledge of pendency of the proceedings and did not appear intentionally as he did not possess sufficient amount to pay the arrears of rent and further found the application to be barred by time

Learned Counsel for the Petitioner challenges the said findings. The material undisputed facts which emerge from the record as well as the oral evidence led by the parties are, that ejectment proceedings were taken out against the Respondent on 26-2-1977. Order for effecting the substituted service by publication in news paper was made on 14-9-1977 and notice was published in newspaper i.e. Hind Samachar, Jalandhar on 31-10-1977 notifying the date for appearance before the learned Rent Controller on 7-11-1977 The notice published does not carry in it the summary of allegations or any reference as to in what connection the Respondent was required to appear before the Rent Controller on the said date.

Order 5, Rule 2 of CPC makes it incumbent on the Court to see that every summons is accompenied by a copy of the plaint or, if so permitted, by a concise statement It is well settled that the provisions are mandatory. In the case of summons not accompanying the copy of plaint or summary of concise statement of claim as ordered by the Court it shall not be treated as a due service and exparte decree obtained on such defective service has to be set aside

Order 5, Rule 20 of the Code envisages that the Court can order the substituted service only on its being satisfied for the reasons to be disclosed in the order to believe that the Defendant is keeping out of the way and avoiding service, or any other reason for ordering the service to be effected by publication. It shall further order that the summons were to be affixed with a copy of plaint thereof in some conspicuous place in the court house as well as on some conspicuous part of the house in which the Defendant is known to have last resided or carried on business personally or worked for gain or in any other such manner as the Court thinks fit. Even while choosing the news paper the Court has to keep in view the circulation of the news paper in the locality. While ordering the substituted service Court shall fix a reasonable period for appearance after the service is effected.

The High Court Rules and Orders Volume IV, Chapter 7-B envisages that where the order has been passed effecting the service by substituted service, the Court shall intimate through a covering letter to the manager of the news paper to send an intimation with respect to the publication to the Court as well as send under postal certificate copy of the paper containing the notice to the party for whose perusal it is intended at the address given in the notice marking the notice in question with red ink. The manager of the press is required to send as proof of the compliance of the orders of the Court the postal certificate under which the news paper was sent to the Respondent along with his bill to the Court.

Before the Court proceeds exparte it should apply its mind consciously and proceed only if it is proved to its satisfaction that the summons to the Defendant to appear has been duly served in terms of the law and the party had a sufficient time at its disposal to appear in Court from the date of the service of the summons. It is only when it gets satisfied that in terms the provisions of law have been complied with, that an order for proceeding exparte can be passed.

In view of the undisputed fact on the record that no copy of the plaint or a concise statement of it was sent along with the news paper by which the substituted service was effected under postal certificate on the Respondent nor there is anything on the record to show that the summons were affixed on the door of the house where the Respondent last resided nor the publication in the news paper contains the concise statement of the case relating to which the Respondent is summoned in Court and there was only a time lapse of six days between the date of publication of the notice and the date when the Respondent was required to appear, the order proceeding exparte cannot be sustained. Further in view of these undisputed circumstances it cannot be assumed that the Respondent was duly served and he had been proceeded exparte in accordance with law. Reasonable opportunity to defend a case is the minimum requirement of the rule of natural justice apart from his legal rights. Mere knowledge of the pendency of the proceedings is no ground to proceed exparte against the Respondent. There is nothing on the record to show that the Respondent had knowledge of exparte decree prior to the date stated by him on oath i.e. 18-11-1978.

In view of the above observations I am of the considered view that there was no due service on the Respondent nor there was sufficient time for him to appear in Court on the date fixed, though he might have the knowledge of pendency of the proceedings. Since he had no knowledge of passing of the exparte order of ejectment, I find that there is sufficient cause to set aside the exparte order of ejectment. Exparte ejectment order dated 7-11-1977 is set aside subject to payment of Rs. 500/- as costs The ejectment petition is restored to its original number. The parties are directed to appear before the learned Rent Controller on 28-8-1989.