Shiv Dayal vs Ishwar Dass

J.V. Gupta, J.—This petition is directed against the order of the Rent Controller, Fazilka, dated 20th October, 1981, whereby the application for setting aside the ex parte ejectment order was dismissed.

The landlord-respondent filed an application on 7th May, 1976 for the ejectment of the tenant-petitioner inter alia on the ground of non-payment of arrears of rent and change of user. Summons were issued to the tenant-petitioner for the first time for 7th June, 1976. On that date it was reported by the process server that the tenant refused to accept the service. Consequently, he was proceeded against ex parte, and ultimately, after recording the ex pane evidence, order of ejectment was passed in favour of the landlord and against the tenant on 2nd March, 1977. Warrants of possession were sought to be executed on 29th March, 1978, when according to the tenant, he came to know of the ex parte ejectment order passed against him. Immediately on the next date i.e. 30th March, 1978, the tenant'' moved an application for setting aside the ex parte order of ejectment It was alleged in the application that he was never served and he never refused to accept the service. As soon as he came to know of the ex parte ejectment order passed against him, he moved the application under Order 9 Rule 13, Code of Civil Procedure.

The application was contested inter alia on the ground that the tenant was well in the knowledge of the ejectment order passed against him and he intentionally refused to accept the service of the summons.

After the evidence Was recorded, the learned Rent Controller found that the tenant came to know regarding the institution of the ejectment petition on 1st June, 1976, when he refused to accept the service and, therefore, neither the application was within limitation nor there was any sufficient reason for letting aside the ex parte order Dissatisfied with the same, the tenant to as filed this petition in this Court:

The Learned Counsel far the Petitioner contended that there was no compliance with the provisions of Order 5 Rule 17 of the Code of Civil Procedure, as no copy of the ejectment application was ever affixed at the door of the Petitioner, nor the report submitted by the bailiff refusing service had the address of any person who identified or in whose presence the copy was affixed. It was further contended that the conduct of the landlord speaks for itself. He remained silent for about a year before he sought the execution of the ejectment order. Thus, argued the Learned Counsel, the report made by the process server on 1st June, 1976 being not in accordance with the provisions of Order 5 Rule 17, Code of Civil Procedure, no ex pane proceedings could be taken against the tenant.

After hearing the Learned Counsel for the parties and going through the relevant evidence on the record, I find force in the contentions raised on behalf of the Petitioner. On the summons issued for 7th June, 1976 (Exhibit RW 3/A), there is an endorsement Exhibit RW 3/B. The endorsement thereon shows that one Ram Bakhsh son of Munshi Ram has signed it as a witness. His address has not been given thereon. When the process server, who had become bailiff later on by promotion, appeared in the witness box, admitted that he did not know Ram Bakhsh nor did he record the address of Ram Bakhsh. If it is so, then he did not comply with the mandatory provisions of Order 5 Rule 17, Code of Civil Procedure, and therefore, the tenant could not proceeded against ex parte on such a report of the process server. The approach of the learned Bent Controller in this behalf is wrong and, illegal. Thus, keeping in view the totality of the circumstances, this petition succeeds, the ex parte ejectment order dated 2nd March, 1977 is set aside on the condition that the tenant will deposit the arrears of rent, as claimed in the ejectment application with interest with effect from 1st December, 1965 to 29th February, 1984 on or before 19th March, 1984 with the Rent Controller, failing which this petition will stand dismissed with costs. The parties have been directed to appear in the Court of the Rent Controller, Fazilka on 19th March, 1984. The records of the case be sent back forthwith.

Revision petition allowed.