Shri Sham Lal vs S. Bhagat Singh

M.S. Liberhan, J.—This revision petition arises out of an order declining to set aside an ex-parte order of ejectment against the petitioner.

The landlord filed an application for the ejectment of the petitioner inter alia on the ground that the rent at the rate of Rs. 180/- per month with respect to the booth rented out to the petitioner-respondent was not paid from April 1, 1985 to October 1, 1986. The application was filed on October 15, 1986 The case fixed for hearing on December 12. 1986 when the summons was served upon the petitioner on November 26, 1986.

It is an admitted case that on December 12, 1986 the Rent Controller was on leave. It was ordered that the service be effected on the tenant by registered post, but no process was issued by the Rent Controller by registered post, though it was observed by the Rent Controller that some receipt had been produced by the landlord showing some Registered pest booked by the postal authorities The Rent Controller feeling satisfied that the tenant was avoiding service, ordered substituted service by beat of drum The tenant failed to appear in spite of that, and ex-parte ejectment order was passed on January 9, 1987.

The Petitioner''s claim in the application for setting aside the ex-parte order is that there was no service effected by beat of drum. The demised premises are in the market. Had there been heat of drum, the process Server would have got the endorsement on the summons from any witness in the market. There is no evidence that there was any attempt made to serve the tenant by registered post. The appllcation for setting aside the ex-parte order was made promptly i.e. within limitation from the date of knowledge. No independent witness with respect to beat of drum was examined by the landlord from the market or otherwise.

The trial Court declined to set aside the ex-parte order inter alia observing that the Process Server in his statement on oath had stated that he went to the spot and summons was duly saved on Sham Lal. Thus, Sham Lal was served for December 12, 1986 when the Rent Controller was on leave.

I have gone through the judgment and heard the arguments addressed by the counsel for the parties.

It emerges from the contentions urged by the counsel for the petitioner that no attempt was made to serve the petitioner personally after November 22, 1988 when he was served for December 12, 1986 when the Rent Controller was on leave. There is no finding nor there is any reliable evidence on record to infer that con-appearance of tenant was intentional and was mala fide. The amount of rent which is Rs. 3,240/ is not substantial in nature, which in ordinary course a person running a both in Chandigarh in Sector 7 would not be possessed of. It was nobody''s case that the respondent tenant was financially unsound. It is not believable in ordinary course of human conduct that while the service was being effected by beat of drum in the market, the process Server was not able to get the signatures of even a single witness in order to support his report. No witness has been examined from the locality that the service was effected by beat of drum in the locality.

I find no force in the contention raised by the learned counsel for the respondent to the effect that since the respondent was served personally for December 12, 1986, it was his duty to find out the next date of hearing when the Rent Controller was on leave on December 12, 1986 The respondent was under no law enjoined to keep track of the proceedings No Registered Notice was served by the Court. The receipt of the Registered Cover sent does not prove that the notice was issued or served by Registered post when the same was never issued by the Court. It is averred that it is the counsel who had sent the Registered Notice. The counsel has not appeared in witness-box to prove this fact. In view of the evidence on record, no finding can be returned that the petitioner was duly served for the date fixed when he was proceeded against ex parte.

The learned counsel has relied on Order IX, Rule 13, as amended by the Code of Civil Procedure, and contended that in view of the amended provisions of the Proviso to the effect that no ex-parte decree could be set aside merely on the ground that there was merely any irregularity in the service of summons, if the Court is satisfied that the defendant had a notice of the date of hearing and had sufficient time to appear and answer the plaintiff''s claim. 1 find no force in the contention, as it is nobody''s case that there was any irregularity in the service of summons. It is a case of total absence of service of the summons for the date fixed There is nothing on the record to show that the petitioner had notice of the date of hearing and had sufficient time to appear and answer the plaintiff''s claim.

The learned counsel for the petitioner relied on Union of India v. Shrimati Har Kaur (1978) 1 R.G.R. 250, Jagat Ram v. Shanti Sarup (1965) 67 P.L.R. 45 and Kishan Chand v. Gian Chand Kohli 1979 (1) R.L.R. 647. There is no dispute with the proposition of law laid down therein, but I find no parity with the facts of the case in hand.

In view of the observations made above, 1 find that there was a sufficient cause for non-appearance of the petitioner before the Rent Controller on the date fixed, as no service was effected on the petitioner in accordance with law. The order of the Rent Controller Chandigarh, refusing to set aside the order of ejectment dated October 9, 1987. cannot be sustained. Even if there was some negligence on the part of the petitioner, the cost was the panacea.

Resultantly, the ex-parte order of ejectment dated October 9, 1987, passed by the Rant Controller is set aside on payment of Rupees one Thousand as costs

The Revision petition stands disposed of.

The parties are directed to appear before the trial court on August 31, 1990.