Smt. Krishana vs Smt. Vimal Chopra and Another

P.K. Palli, J.—With the consent of the learned counsel for the parties. the case is taken up for final decision on merits at the admission stage itself.

This civil revision petition is directed against the order passed by the learned trial Court refusing to set aside the ex parte order of eviction dated 20th August, 1988 and which order on appeal by the petitioner-tenant stands affirmed by the learned Appellate Authority. The parties hereinafter would be referred to as the "landlady'' and the ''tenant''.

The landlady filed an ejectment petition against the tenant seeking her ejectment on the ground of non-payment of rent with effect from 1.7.1984 to 31.3.1988. The petition was filed on 3.5.1988. When the matter came up before the Court on 9th may. 1988, notice was ordered to be issued to the tenant by registered post as well as by ordinary process for 23rd June, 1988.

When the matter was taken up by the Court on 23rd June, 1988, the landlord. was present in person and the tenant was said to have been served by registered AD a. well as by summons. She somehow did not care to put in presence and was proceeded ex parte and the case was listed for ex-parte evidence for 27th July, 1988 on which date, one witness was examined and case was closed. On 20th August. 1988, an ex-parte order of ejectment was passed.

On 9th may, 1989, an application was filed under Order IX, Rule 13 of the CPC for setting aside the ex parte order of ejectment on the ground that the tenant has not been served in the ejectment petition and having come to know of the, order of ejectment passed against her, the application was moved. The application seeking to set aside the ex-parte order was dismissed by the learned Rent Controller and appeal filed by the tenant stands dismissed by the learned Appellate Authority and the tenant is in revision before this Court.

The learned Rent Controller on appreciation of evidence has found that the tenant was duly served as summons sent to her were duly received by hers on and she too has received the summons which were sent through the registered post.

The case put up by the tenant that her son had no authority to accept service and had colluded with the landlady was found false. She had of course made a statement that the registered letter was never received by her. It was found that no evidence had been led by the tenant to prove any collusion with the landlady. In her statement before the learned Court, she had admitted that her son was residing in the premises in question and thus there was valid service and in the absence of any evidence, no inference of collusion could be arrived at. Nothing, however, was said in the application in respect of the summons received by her through registered AD In addition to her own statement, the brother of her husband was also examined and it was found that he too did not advance the case of the tenant in respect of the service of summons. The learned Rent Controller further found that the application was filed much after the expiry of limitation and the delay in filing the application has not been explained. The application was consequently ordered to be dismissed.

The learned Appellate Authority on appreciation of evidence has found that there was acknowledgment placed on record on which the tenant disputed her signatures. As per report of the Examiner of Questioned Documents, the word ''Krishna'' appearing at A-2 to A-4 and S-l to S-22 were common, the Appellate Court, however, found that the repot was only an opinion. Having found that the son was residing with the tenant and had received the summons at the given address, the tenant is supposed to know about the fate of the case. In her application for setting aside the ex parte order, there was no denial that she never received any summons by registered post. It was tried to project before the learned Appellate Court that the tenant had come to know about the ejectment order from Satish Kumar but surprisingly, he has not been examined. The learned Appellate Court thus found that she had been properly served as it had been established that Pawan Kumar her son who had received the summons was admittedly residing with her and the service rendered by him would be deemed to be valid service on the tenant. The appeal was consequently ordered to be dismissed

Learned counsel appearing for the tenant contends that service has not been affected in accordance with the procedure laid down under Order V, Rule 15 of the Code of Civil Procedure. It is next contended that the tenant is a simpleton illiterate lady and had she known about the ejectment petition, she would have contested it and would not have allowed valuable rights of tenancy to be taken away from her. It is further contended by the learned counsel that the tenant never received any summons by registered post. The son is said to have colluded with the landlady and was not on good terms with the tenant and the summons received by him could not be taken to be a valid service on the tenant.

Learned counsel appearing for the respondent-landlady has tried to support the orders passed by the learned Courts below on the reasonings given in the said orders and has further highlighted the contents as projected by the tenant in her application for setting aside the ex parte order of ejectment and also the discrepancies made by her in the statement.

After hearing the learned counsel for the parties at length and after careful perusal of the record and the impugned orders, I find that there is no merit in this revision petition and the same is liable to be dismissed.

Order V, Rule 15 deals with the service on an adult member of the defendants'' family, the provision requires that where the defendant is absent from his residence at the time when the service of summons is sought to be affected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, the service maybe made on any adult member of the family, whether the male or female, who is residing with him.

To the aforesaid provision, an amendment has been made by the Punjab and Haryana High Court which has also been accepted by this Court and after the words "Where in any suit the defendant cannot be found", the following words have been inserted, "or is absent from his residence".

A close scrutiny of the aforesaid provision makes out that service can be affected on any of the adult member of the family of the defendant where the defendant is absent from his residence or there is no likelihood of his having found at his residence within a reasonable time and there is no agent empowered to accept service on his behalf, the insertion of the words as per amendment would mean that service can be affected on an adult member of the family where the defendant is absent from his residence. This takes me to the summons received by the son of the tenant. On the registered letter containing the summons which were addressed to the tenant at the address of the shop in question, the report is that the premises were found locked. On the acknowledgment i.e. A.D. which was sent to the tenant on her village address, her signatures are thee and are witnessed by one Brij Bhushan Gautam. The signatures are of course denied by the tenant. In the summons issued for 23rd June, 1988, the report is that the tenant was not found there and the summons were given to the son Pawan Kumar alongwith the copy of the petition who had accepted it after putting his signatures. The signatures admittedly have not been denied. The summons received by him are also not denied.

The stage is now set to have a look at the application moved by the tenant for setting aside the ex-parte order. In para 2, an averment has been made that "recently the respondent came to know from Shri...(here name is not mentioned and the space is left blank)." It further records that "a shopkeeper of the Bazar told her that her landlord had filed some petition in the Court which has been decided against her...(space has been left blank because the tenant was unable to find a person who could support her in her version)."

Further in this very para, it is said that the tenant with her husband''s brother made inquiries from the Court and having come to know from the Court officials that ex-parte order has been passed against her on 20th August, 1988, she applied for the copy of the said order on 26th April, 1989.

In para 3, the averment is that she has strained relations with her son Pawan Kumar who in collusion with the petitioner''s general attorney and their agent Shri Kasturi Lal and in greed of money, got the aforesaid petition allowed against her without her knowledge and she was never informed about it,

As noticed by the learned Courts below, no evidence has been placed on record to show any strained relations or any collusion with the landlady. The son has not been produced in the Court nor any other relation has been produced in this respect. Concededly, as admitted by the tenant, this son Pawan Kumar has been living with her in the premises in question and on which address he had received the summons. It could not thus be said that there was no proper service on the tenant or she had no notice or knowledge about the proceedings.

Ironically, no mention has been made in the application in respect of the summons which had been sent to her through the registered cover. She had applied for the copy of the order/and thereafter the present application was got drafted. In the ejectment order, a reference is made in respect of service on the tenant through registered post. It was thus necessary for her to have denying, having received the summons by registered post in the application itself. No explanation has been made and, therefore, this fact goes against the tenant. A perusal of her statement in Court where she was confronted with several signatures made by her on the documents placed on record, she even denied her signatures appearing on the affidavit Annexure R-3 and R-4 and several other places. In this view of the situation, it can safely be inferred that she had actually received the summons by registered post and from that angle also the service had been validly affected upon her.

It would be appropriate here at this stage to take notice of proviso added to Rule 13 of Order IX, wherein it is said "Provided further that no Court shall set-aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim."

the ex-parte order of ejectment is thus liable to be maintained even under this provision.

Learned counsel appearing for the petitioner-tenant has cited a number of authorities that Courts of law should be liberal in dealing with question of limitation and delay and where injustice has been caused to the person against whom the order has been made, the order proceeding ex-parte be set aside and case should be heard on merits.

There is no quarrel with this proposition of law that stands settled in various judgments. This has of course to be where the other side can be compensated with costs and no prejudice would be caused to that party. In the present case, a valuable right has accrued in favour of the landlady. Laws relating to landlord and tenant have to be interpreted literally in the language employed in the statute and once it is proved that there was due service, the tenant has to face the consequences that flow from the order. It is in view of this situation that the matter has to be examined by having a look on the petition itself. No date or any mention is given as to when the tenant came to know of the ejectment order and from whom. At the stage of trial, efforts were made to produce one Ashok Kumar possibly to fill up a lacuna. He too was not examined and the case was closed. One more opportunity was allowed by this Court in Civil Revision between the parties but no witness was examined, yet another Civil Revision was filed out of the proceedings between the parties and that too was dismissed on 8.7.1992 by this Court and the order is at page 83 of the record. There is yet another fault with the tenant that the rent was never deposited by her within 30 days from the order of ejectment. Section 14 of the H.P. Urban Rent Control Act, 1987 deals with the eviction of the tenants. The order of ejectment against the tenant as to be passed when the tenant ha snot paid or tendered the rent due from him within 15 days after the expiry of the term specified or in the absence of any agreement by the last day of the month next following. A proviso is added to this provision that if the rent and interest are tendered in Court in an ejectment petition and that too after due service, the tenant shall be deemed to have duly paid or tendered the rent within the time specified.

Yet there is another proviso added to this provision under which the tenant against whom eviction order has been made on the ground of non-payment of the rent due from him, shall not be evicted as a result of the order, if the tenant pays the amount due within a period of 30 days from the date of the order. Admittedly, no amount of rent was ever tendered or deposited with the Rent Controller during the proceedings in the present case. The rent was ordered to be paid under the orders of this Court in revision petition. Even on that ground, the tenant cannot save herself from ejectment order and the consequences that flow therefrom as the tenant has failed to project her bonafides.

Section 24(4) lays down that the decision of the Appellate Authority and subject only to such decision, an order, of the Rent Controller shall be final and shall not be liable to be called in question in any Court of law except as provided in sub-Section (5) of this Section. Sub-Section (5) gives the power to this Court to call for and examine the records relating to an order passed or the proceedings taken under the Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings.

Under the limited scope of revision as given in the aforesaid provisions, the High Court as revisional Court is not expected to set-aside the view taken by the Rent Controller and the Appellate Authority simply because it thinks that the matter could be viewed from another angle also. Unless and until, some gross illegality or irregularity or error of jurisdiction is pointed out, this Court would refuse to exercise its jurisdiction on the revisional side if the impugned order appears to have taken a just and proper view of the situation.

Consequently, there is no merit in this revision petition and the same is ordered to be dismissed with no order as to costs.