Sat Narain vs Rohit

S.S. Sudhalkar, J.—Heard the learned counsel for the petitioners. Petitioners had filed an ejectment petition u/s 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, before the Rent Controller. The petition ended in ex parte order of ejectment on 28.2.1998. The respondent filed an application for setting aside the ex parte order before the learned Civil Judge (JD) Karnal. The said application was allowed. Being aggrieved by the said order, the petitioners have filed the present revision petition.

Learned counsel for the petitioners has raised the following two points:-

1) That the learned Civil Judge (JD) was wrong in holding that it was necessary for somebody to identify the person refusing the summons.

2) That the application was filed beyond the period of limitation and the right which got vested in the petitioners cannot be taken away by setting aside the ex parte decree.

Regarding, the first point there was an endorsement on the summons that the respondent had refused and the same were affixed on the outer door of his premises and hence the order was passed for proceeding ex parte against the respondent. The provision regarding service of summons appears in Order 5 Rule 17 of the CPC (hereinafter referred to as the Code), which reads thus:-

"Procedure when defendant refused to accept service or cannot be found-where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgement. The serving Officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."

It is argued by the learned counsel for the petitioners that it is not necessary to get the person refusing the summons identified otherwise the word "if any" would not have been incorporated in the order. In support of this argument he has cited the case of Sahara Deposits and Investments (I) Ltd. Vs. Karan Singh, . It has been held therein that the service by affixation need not be in the presence of witnesses and the discretion lies with the court to accept service as sufficient or not. It has also been held in the said judgment that the underlying object behind the aforesaid provisions is to insist on the presence of one respectable person of the locality who may identify the house or property on which the process was affixed so as to eliminate the possibility of the process being affixed on a house or property with which the person sought to be served has nothing to do. It is further held that the provision of identifying the property is merely by way of caution and it is directory and not mandatory. It is also observed that the most reasonable view to be taken would be to leave the question of sufficiency of service in an individual case being determined by the Court which may before proceeding ahead with hearing of a matter on merits form its opinion whether it was satisfied on the sufficiency of service by affixation as disclosed by the report of process server and/or from the inquiry made by the Court which it may deem fit to make regarding the matter or events touching the service.

Learned counsel for the petitioners further argued that after the service of the summons by affixation, the Court has observed in his order that the summons were duly served.

However, it can be seen that when the application for setting aside the ex parte decree was filed, the parties had led evidence on issues framed. The process server was also examined by the present petitioners and I requested the learned counsel to read over the deposition of the process server. The Process Server in his deposition has not stated that he knew the respondent or that somebody had identified the respondent. Even the Process Server was not asked to identify the respondent in Court. This goes to show that in spite of the fact that Process Server could have identified the respondent, he had not done so. The question, therefore, arises whether the lower Court had erred in setting aside the ex parte decree. Under these conditions, if the summons are not duly served, the ex parte decree has to be set aside. In this case there was a chance for proving that the summons were duly served by getting the respondent identified by the Process Server. This is not done and when this is not done, the plea of the respondent that he had no knowledge of the summons can be accepted. It will not be proper for me to disturb the finding of the learned lower court in this regard.

Learned counsel for the petitioners has also argued that an application for setting aside the ex parte decree was filed by the respondent beyond the period of limitation which he would not have done, because petitioners had acquired right by the lapse of the period of limitation. He has cited before me the case of Sarpal Singh Vs. Malkiat Singh, in which it was held by this Court that when case was dismissed in default and the application for restoration was filed beyond the period of limitation and there was no application for condonation of delay, the application should be dismissed and the order upheld. There appears to be slight difference between the said case and the present case. In the present case there is a question of setting aside the ex parte decree and as per Article 123 of the Schedule of the Limitation Act, time from which the period of limitation begins to run is the date of the decree or where the notice was not duly served, the date of knowledge of the decree. In the present case, the contention of the respondent as appears from the order of the learned Civil Judge (JD) is that he had no knowledge and it was for him to prove that he acquired the knowledge of the decree on 23.5.1999. However, it is clear from the order of the lower court that this point has not been taken by the petitioner and no issue to that effect was framed.

Learned counsel for the petitioner has cited before me the case of Anup Singh and Others Vs. Smt. Bachni and Others, . It has been held therein that Section 3 of the Limitation Act is mandatory and casts a duty upon Court to dismiss a suit if it is instituted after the period of limitation. Relying on this judgment learned counsel for the petitioner argued that even if this plea was not taken by the petitioner, the Court should consider the question of limitation and dismiss the application. The question that arises in this petition is different from the question of limitation which may arise in a suit. In the case of Anup Singh (supra) it has been held that the plea of limitation being the legal plea can always be taken into consideration and it is further held that this Section is mandatory and casts a duty on the court to dismiss the suit if it is instituted after the period of limitation even if limitation has not been pleaded in defence. However from the facts on record of this case, it cannot be presumed that the application was barred by limitation. Limitation is a mixed question of law and fact. In the present case, it is a question of fact. The limitation starts from the date of the knowledge of this ex parte decree, if the notice is not duly served. This being so, this case is different from the case of Sahara Deposits and Investment (I) Limited (supra) I do not find any reason to disturb the finding of the lower court by which it has set aside the ex parte ejectment order.

There is also an opinion expressed by the learned lower court that it seems probable that in reality the process server did not offer the service of summons to respondent nor as such there was any occasion for respondent to refuse service. This is a finding of fact and calls for no interference in this revision petition.

For the reasons recorded above, this petition has no merit and the same is dismissed.