Swami Keshwacharya Shishya Swami Rangacharya vs Jagdish Shukla

Sharad Kumar Sharma, J

The petitioner, in the present Writ Petition, has challenged the revisional Court's order dated 24.02.2016, as rendered by the 1st Additional District Judge, Haridwar, by virtue of which, the Revision, being SCC Revision No. 33 of 2012, Swami Keshwacharya Vs. Jagdish Shukla, which the petitioner/revisionist, has preferred against the order dated 18th September, 2012, rendered by Judge Small Causes Courts in Misc. Case No. 16 of 2012, which the respondent had preferred for setting the ex parte judgment and decree dated 21st September, 2011, which was rendered in SCC Suit No. 7 of 2010, Swami Keshwacharya Vs. Jagdish Shukla, has been allowed, consequently, the SCC Suit No. 7 of 2010 was restored and was directed to be decided on merits.

This Writ Petition, when it was entertained, notices were issued to the respondent, in compliance thereto, the petitioner has taken steps and, thereafter, a report has been submitted by the Registry on 11th October, 2018, that the respondent has refused to accept the notice. Consequently, the Coordinate Bench of this Court, vide its order dated 14th May, 2019, has held that the respondent has been sufficiently served by the petitioner. In such an eventuality, where the respondent, despite of having knowledge and service of the pending proceedings before this Court has not participated in the writ petition, this Court has no option except to proceeds to hear the petitioner's counsel ex parte on merits of the matter.

The brief facts, which are involved in the present case are that the petitioner being the landlord of the property, more particularly, described at the foot of the plaint, which constituted two first floor, situated at Sri Ramanuj Sri Vashnav Sanskrit Mahavidhyalaya, Bhopatwala, Haridwar, the boundaries of which, have been detailed in the plaint itself.

The plaint, which was instituted on 15th January, 2010, after issuance of the notices under Section 106 of Transfer of Property Act, had terminated the tenancy on 17.07.2009, on the ground of commission of a default by the tenant/respondent in remittance of the rent for the period from 1st March, 2009 to 30th June, 2009, when despite of service of the notice under Section 106 of the Transfer of Property Act on 17.07.2009, when the tenement, in question, was not vacated, the suit was instituted by the petitioner landlord and, ultimately, the suit was decided by the Judge Small Causes by the judgment dated 21st September, 2011. Apparently after going through the order / judgment dated 21st September, 2011, the Court has recorded a finding regarding satisfaction of service on respondent that despite of notice has been sent by the Court under the normal mode of service as well as through publication but, yet the defendant had not put in appearance, due to which, the Court has proceeded to hear the case ex parte on 24th May, 2011, and, ultimately, after hearing the plaintiff, the suit was decree ex parte on 21st September, 2011, thereby directing the defendant to vacate the premises and to pay the rent and other taxes due to be paid towards the tenement, in question, to the plaintiff, as was demanded by the plaintiff in the notice.

Taking advantage of the fact that the judgment being ex parte, as the defendant had despite of service through publication has not put in appearance nor has sought to recall the order dated 24th September, 2011, directing to proceed ex parte against him, he had voluntarily permitted the suit to be decided on merits in his absence. Ultimately, taking advantage of his deliberate actions of his non appearance, he has filed an application under Order 9 Rule 13 of the C.P.C. on 17th April, 2012, contending thereof that the judgment and decree dated 21st September, 2011, was ex parte and hence, the same deserves to be recalled.

This application, preferred by the respondents under Order 9 Rule 13 of the C.P.C. read with Section 151 of the C.P.C., was objected by the petitioner on 24th May, 2012, by filing the objection, but, the Court of Judge Small Causes, i.e. Civil Judge (Senior Division), Haridwar, while allowing the application, paper No. 4-A, preferred under Section 5 of the Limitation Act and paper No. 5-B, preferred under Order 9 Rule 13 of the C.P.C. by the respondent and holding that the judgment dated 21st September, 2011, was ex parte, though a finding has been recorded by the court below that the defendant though was served through publication on 25th November, 2010, had proceeded to recall the order and the ex parte judgement and decree dated 21st September, 2011, consequently, the same was set aside by the judgment dated 18th September, 2012. It is this order of allowing of Order 9 Rule 13 C.P.C. against which the petitioner has preferred the Revision before the Revisional Court under Section 25 of the Provincial Small Causes Court Act, which was numbered as SCC Revision No. 33 of 2012, Swami Keshwacharya Shishya Vs. Jagdish Shukla and the revision too has met with the same destiny as the same was dismissed by the order dated 24th June, 2016. Consequent thereto, affirming the order dated 18th September, 2012, by which, the ex parte judgment was recorded and suit was restored to be decided on merits, against which the present Writ Petition has been preferred.

Apparently, looking to the conduct of the respondent right from the stage, when the Trial Court was ceased with the proceedings at the stage under Section 15 of the Act and even upto the stage of the Writ Petition, the act of the respondent has been deliberate and intentional by not participating in the proceedings and letting the suit and the revision be decided ex parte against him was intentional and deliberate so that he may succeed in buying time because taking advantage of the pendency of the proceedings before the Court of law.

This nefarious act of the respondent deserves to be curbed and curtained, though apparently looking to the findings which has been recorded in the judgment dated 24th June, 2016, this Court is also of the view that it might be a strong possibility that the respondent was served by publication but still he has not participated in the proceedings, which was decided ex parte on 25th September, 2011, while setting aside the order, the Court holding the judgment dated 21st September, 2011, as to be ex parte, has allowed order 9 Rule 13 and the revision of the petitioner was also dismissed.

Considering the circumstances of the case and while dismissing the Writ Petition, the Trial Court is directed to get service effected on the respondent through Special Messenger and, thereafter, to decide the suit as expeditiously as possible preferably within a period of six months from the date of service of the report of Special Messenger regarding the services on the respondent.

However, there would be no order as to costs.