Vishwanath Tomar vs Virendra Singh Chouhan

K.L. Shrivastava, J.

This revision petition u/s 23-E of the M. P. Accommodation Control Act 1961 (for short ''the Act'' or ''the Principal Act'') is directed against the order dated 21-8-1984 passed by the Rent Controlling Authority, Dewas (for short ''the Authority'') whereby the non-applicant''s application u/s 23-A of the Act for eviction of the petitioner stands allowed.

Circumstances giving rise to the petition are these. On the application u/s 23-A of the Principal Act filed on 12-2-1984 by the non-applicant who had retired on 31-10-1983 from the post of Principal, Higher Secondary School, Singlana, Dist. Dhar for eviction of the present petitioner from the accommodation in question situate at Dewas, summons in relation to the said application was issued for 1-4-1984. It was returned unserved. Ultimately summons for 5-5-1984 was served on him on 3-5-1984 by affixure as ordered by the Authority describing as Sub-Divisional Officer. Service was held good and the case was adjourned to 18-5-1984.

According to the petitioner, he was out of station and came to know about the summons on 15-5-1984 on return. He filed an application through a counsel on 17-5-1984 before the Authority along with an affidavit stating that the ground of bona fide requirement of the landlord for residence is a pretence and he is already in possession of his own accommodation in Dewas for his residence and praying for him to engage a counsel. The learned Authority not treating the application which contained a prayer for permission to engage a counsel as one for leave to contest the application for eviction rejected it by its order dated 29-5-1984.

On 30-5-1984 the petitioner filed another application for leave to contest the prayer for eviction. An affidavit was also filed in support thereof. The application also contained a prayer for condontion of delay in filing the application.

The learned Authority by its composite order dated 21-8-1984 rejected the application for leave to contest the application u/s 23-A of the Act as improper and barred by time and ordered eviction of the petitioner.

The contention of the petitioner''s learned counsel is that the learned Authority did not properly bear in mind the relevant provisions regarding service of summons in relation to the application u/s 23-A of the Act as provided u/s 23-B(1) and (2) ibid and erred in dismissing the application u/s 23-C filed on 30-5-1984 for leave to contest the non-applicant''s prayer for eviction.

The contention of the non-applicant''s learned counsel is that the applicant having himself failed to proceed according to law, cannot be permitted to urge with my measure of success that the impugned order is bad in law.

The relevant provision regarding leave to contest the prayer for eviction embodied in section 23-C of the Act is in these terms : -

S. 23-C. Tenant not entitled to contest except under certain circumstances (1) The tenant on whom the summons is served in the form specified in the second schedule shall not contest the prayer for eviction from the accommodation unless he files within fifteen days from the date of service of the summons, an application supported by an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Rent Controlling Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or in default of his obtaining such leave, or if such leave is refused, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant. The Rent Controlling Authority shall in such a case pass an order of eviction of the tenant from the accommodation:

Provided that the Rent Controlling Authority may for sufficient cause shown by the tenant, Excuse the dealy of the tenant in entering appearance or in applying for leave to defend the application for eviction and where ex parte order has been passed, may set it aside.

The contention of the petitioner''s learned counsel is that there was no personal service on the petitioner and it is only by fiction that it is held that he is served. Relying on the decisions in Sobhagmal''s case 1986 MPWN 198 and Dhal Singh Kushal Singh Vs. Anandrao Kakde, the learned counsel rightly contends that his client is entitled to contend that he was not ''duly served'' with the summons by showing that the substituted service was neither properly ordered nor properly effected. According to the learned counsel, in the circumstances, the petitioner is also entitled to show that he actually got knowledge of the summons on a later date. In support of this submission as to the date of knowledge of summons he sought support from Mohanlal''s case 1983 MPWN 24 and the explanation appended to Article 123 of the Limitation Act 1963. The article with the explanation is as under : -

Description of the suit Period of limitation Time from which period begins to run To set aside a decree passed -ex parte or to rehear an appeal decreed or heard ex parte 30 days The date of the decree or where the summons or notice was not duly served when the applicant had knowledge of the decree.

On a careful consideration of the totality of the facts and circumstances of this case, I find that there is force in the petitioner''s contention that for the first time he got knowledge of the summons on 15-5-1984 when he returned to Dewas. It. is pertinent to point out that beside the serving officer''s endorsement dated 3-5-1984 on the summons, there is a note by one Rameshchandra to the effect that the petitioner would be back on 15-5-1985 and in the order sheet dated 5-5-1984 the learned Authority has also recorded that as service has been by affixure the case be posted on 18-5-1984 after a period of 15 days for further proceedings. In his application u/s 23-C of the Act filed on 30-5-1984 and in the affidavit filed in its support, the petitioner did make an averment that he got knowldge of the summons on 15-5-1984. The non-applicant denied that averment in his reply to the application but did not file any counter-affidavit. In the absence of counter affidavit, in the circumstances of the case, the petitioner''s averment as to the date of knowledge of the summons deserves to be relied upon.

From a combined reading of section 29(2) and Section 12(1) of the Limitation Act it is clear that in computing the period of 15 days limitation u/s 23-C of the Act for the application for leave to contest the prayer for eviction the day from which the period is to be reckoned has to be excluded. Therefore, in the instant case the date of knowledge of summons has to be excluded in computing the period of limitation. Assuming that the application was barred by a few days, there was sufficient cause to excuse the delay as contemplated under the proviso to section 23-C(1) of the Act. In this connection the decision in Tara Prasan Singh''s case 1985 MPWN 110, may usefully be persued. Therein it has been pointed out that delay if not deliberate should be condoned. It may also be observed ignoring technicalities the petitioner''s first application and the affidavit filed in its support when construed together in their entirety make out a case for grant of leave. The prayer for leave to engage a counsel could reasonably be for the purpose of contesting the application u/s 23 of the Act and for no other purpose.

From what has been discussed above in paragraphs 10 and 11 of this order, the irresistible conclusion is that the second application filed on 30-5-1985 being within 15 days from the date of knowledge of the summons was clearly within the period of limitation prescribed for it in section 23-C of the Act and the learned Authority clearly erred in dismissing it as time-barred.

It may also be pointed out that in the impugned order the learned Authority, in the context of the earlier application filed by the petitioner on 17-5-1984, has characterised the second application dated 30-5-1984 as improper. As it had not treated the earlier application as one u/s 23-C of the Act, the said observation is clearly unwarranted.

In the instant case, the Authority has by a composite order refused the leave prayed for and has passed an order of the petitioner''s eviction from the accommodation in question. This was not proper. Such an order creates an impression that there was predetermination to order eviction and this undermines public faith in the dispensation of justice. In the decision in Jyoti Swaroop''s case (1985 MPWN 566) it has been pointed out that issue of leave to contest the prayer for eviction and the issue of eviction from the premises are separate issues and separate procedures for the determination of the same have been made. Question of eviction becomes determinable only when no leave is prayed or when it is refused and not before that as pointed out in Jyoti Swaroop''s case (supra). The decisions in Jamma vs. Virjha 1986 MPRCJ Note 22, and Rajendrakumar Sethi''s case 1985 MPRCJ Note 142 are also pertinent.

It is also pertinent to point out that the revisional power u/s 115 of the Code is restricted to the correction of jurisdictional errors alone but the one conferred by section 23-E of the Act has a wider ambit though as observed in the Division Bench decision in B. Johnson Vs. C.S. Naidu, , the power is not wide enough to make the revisional Authority a second Court of first appeal. The correct position is that in exercising the power of superintendence u/s 23-E of the Act the revisional Authority should not interfere with the finding of fact merely because it does not agree with it. Further merely holding that a question is a mixed one of fact and law does not warrant exercise of the revisional power. To warrant interference with the finding it must further be shown that it suffers from a taint of such unreasonableness as occasions miscarriage of justice. The impugned order is in-correct and improper and occasions failure of justice. It is clearly amenable to the revisional jurisdiction under the said section of the Act,.

Before parting with the case I consider it worthwhile to point out that the Legislature has made necessary provisions to safeguard the interest of the tenants and they should not be lightly deprived of their valuable legal right of leave to contest the prayer for eviction unless by their conduct they disentitle themselves to the same. The proviso to Section 23-C(i) of the Act providing for case of delay and ex parte order is indicative of the Legislature''s concern for the interest of the tenants and the subsection (2) of the said section points out that disclosure of such facts as would disentitle the landlord from obtaining an order for recovery of possession of the accommodation on the ground specified in Section 23-A ibid is sufficient for the grant of leave to contest the prayer for eviction so that the issue between the parties is tried on merits. It must also be remembered that in determining the question of grant of leave the substance and not the form of the application must govern the verdict. In the decision in Chand Mohammad''s case 1985 M.P. W. No. 269, it has been pointed out that the Authority should also have asked the tenant to file an application as required by Section 23-C of the Act. It cannot also be over-emphasised that all efforts must be made to effect personal service and the Authority has a duty to pay personal attention to matters connected with issue and service of process in. terms of the relevant provisions by the serving officer and the Rent Controlling Authorities tends to occasion delay and thereby defeat the very object of speedy relief to ensure which the Authorities have been constituted.

It may be noted that Order 5 Rule 12 of the Code provides that whenever it is practicable, service shall be made on the defendant in person. Order 5 Rule 17 ibid lays down the procedure of affixture of copy of the summons where the defendant refuses to accept service or cannot be found. Rules 18 and 19 respectively provide for endorsement of time and manner of service and examination of serving officer. It may be noted that affixture under Order 5 Rule 17 of the Code can be resorted to by the serving officer without any order for the purpose by the Court. Such order by the Court is, however, necessary for substituted service under Order 5 Rule 20 ibid which is to be resorted to under specified conditions. In case of substituted service by affixture a copy of the summons has to be affixed in some conspicuous place in the Court house and also upon some conspicuous part of the defendant''s house. By the M. P. Amendment to Rule 17 a proviso has been added which, in the event of special service and refusal by the defendant to sign the acknowledgment, dispenses with the affixture of the copy of the summons. In the decision in Mst. Parwatibai''s case 1970 MPLJ Note 95, it has been pointed out that it is the duty of the process server to make specific inquiry about the whereabouts of the defendant before affixture. Where the defendant is only temporarily absent and there is sufficient time before the date of hearing, affixation of the summons to the defendant''s house under Order 5 Rule 17 of the Code is not sufficient service. In the event of service by affixture Order 5 Rule 19 requires the serving officer to vouch for his return by an affidavit and if it has not been done so the Court is required to examine the serving officer on oath touching the service of summons. In this connection the decision in Matadeen''s case 1984 MPWN 453, and Sita Ram''s case 1986 MPRCJ 113, may usefully be perused.

In. the uiltimate analysis the revision petition succeeds and is allowed. The impugned order is set aside. There being triable issue, the application for leave to contest the non-applicant''s application u/s 23-A of the Act is granted. The case is remanded to the learned Authority for expeditious disposal according to law. In view of the fact that a period of 32 months has already elapsed since the making of the application u/s 23-A of the Act, the disposal must be expeditious.

Parties are directed to appear before the learned Authority on 24-11-1986. The record be sent back within three days.