Punjab-Haryana High Court
Baldev Singh vs Jiwan Kumar Pathak on 20 September, 2004
Equivalent citations: (2005)139PLR391
JUDGMENT M.M. Kumar, J.
1. This is tenant's petition tiled under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity 'the Act') challenging concurrent findings of facts recorded by both the courts below upholding the ex parte order of ejectment passed against him. The Rent Controller had passed ex parte order of ejectment dated 3.11.1998. Thereafter the tenant-petitioner filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') which has been dismissed by the Rent Controller vide its order dated 20.8.2002 which has been upheld by the Appellate Authority vide its order dated 13.1.2003. It has been held by both the Courts that the tenant-petitioner was served with the summons on 8.8.1997 for appearance in the court on 23.8.1997 alongwith a copy of the ejectment petition. The appellate authority in para 10 of its order has categorically observed as under:-
Sushil Kumar Sabharwal v. Gurpreet Singh and Ors., (2002-2)131 P.L.R. 382 (S.C.)"...the fact remains that in the present case, it has been proved beyond reasonable doubt that alongwith copy of summon, a copy of the petition was also supplied to the appellant by the process server RW1 in the presence of respondent RW2. For this, one has to take into consideration that Ex.Rl carries the admitted signatures of the appellant beneath the endorsement which proclaims that he has also received a copy of the petition. Thus, his above said writing belies his claim made by him as AW1. Furthermore, the process server, RW1 and the petitioner RW2 have stated on oath that a copy of the petitioner was in fact supplied to the appellant at the time of his service. Ruling of Sushil Kumar Sabharwal's case is not relevant as in the above said case, the appellant had denied in his service, but, in the present case, the appellant admits his service.
2. Mr. Vipul Aggarwal, learned counsel for the petitioner has argued that as a matter of fact, a copy of the ejectment petition alongwith summons was never served on the tenant-petitioner and his rights were seriously prejudiced. According to the learned counsel, non-furnishing of a copy of the ejectment petition constitutes sufficient ground for the tenant-petitioner not to appear before the Rent Controller on 23.8.1997. Therefore, the ex parte order dated 3.11.1998 ordering his ejectment is liable to be set aside. Mr.Aggarwal has further placed reliance on Division Bench judgment of this Court in the case of Jagat Ram v. Shanti Samp,(1965)67 P.L.R. 45 to argue that within the meaning of Section 13(2)(i) of the Act, no service can be considered to be the due service unless a copy of the ejectment petition has been sent along with summons. The learned counsel has also argued that according to the judgment of Supreme Court in Rakesh Wadhawan v. M/s Jagdamba Industrial Corporation, (2002-2)131 P.L.R. 370 (S.C.), the tenant is required to be granted an opportunity for depositing the rent and the tenant-petitioner is even today prepared to deposit the rent.
3. Mr. R.K.Joshi, learned counsel for the landlord respondent has argued that firstly there are concurrent findings of facts to the effect that the copy of the plaint was supplied to the tenant-petitioner and it does not lie in his mouth to deny the receipt of copy of the ejectment petition. Learned counsel has relied upon the summons duly signed by Baldev Singh tenant-petitioner in token of receipt of copy of ejectment petition. The summon shows an endorsement stating that the tenant-petitioner had received a copy of the ejectment petition and the endorsement is duly signed by him. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Dev Karan v. Bhagwan Das, (1991-1)99 P.L.R. 206 and argued that in accordance with proviso to Rule 13 Order 9, non-furnishing of copy of the petition in any case is a mere irregularity, which would not warrant setting aside the ex parte order.
4. After hearing learned counsel for the parties and perusing the impugned order, I am of the considered view that there is no merit in this petition as it has been concurrently found by the courts below that a copy of the ejectment petition was furnished to the tenant-petitioner along with the summons. There are further findings that despite knowledge of the ejectment petition filed by the landlord-respondent acquired by service of summons, the tenant-petitioner has failed to attend the Court and allowed the ejectment order to be passed. Order IX Rule 6 of the Code provides the procedure to be followed when only plaintiff appears and one step in the aforesaid provisions is to proceed ex parte, Order IX Rule 6 of the Code reads as unden:-
"Ordcr IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE 1 to 5, xx xx xx xx
6. Procedure when only plaintiff appears.- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then -
(a) When summons duly served. - If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte,]
(b) When summons not duly served.- If it is proved that the summons was not duly served, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time.- If it is not proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
Where it is owing to the plaintiffs default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement."
5. The aforementioned provision came up for consideration of the Supreme Court in Sushil Kumar Sabharwal v. Gurpreet Singh and Ors., (2002-2)131 P.L.R. 382 (S.C.) and it was stressed that when summons is duly served then the conscience of the Court must be satisfied that there is proof of service of summons. The observations of the Supreme Court which are pertinent and apply to the instant petition read as under:-
"The provision contained in Order 9 Rule 6 CPC is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the Court depending on the given situation. The three situations arc: (i) When summons duly served, (H) when summons not duly served, and (Hi) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte, The provision casts an obligation on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being "proved" that the summons was duly served when and when alone, the Court is conferred with a discretion to make an order that the sit it be heard ex parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the court to satisfy itself on the service of summons. Any default or casual approach on the part of the court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of his. If only the trial Court would have been conscious of its obligation cast on it by Order 9 Rule 6 CPC, the case would not have proceeded ex parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation."
It is further been emphasised that if second proviso is to be applied, then defendant must have notice of the date of hearing and sufficient time to appear before the Court which provides for ignoring an irregularity in service of summons. In that regard the following observations of their Lordships deserve to be referred:-
"....The appellant has admitted in the plaint therein that he was aware of the pendency of the suit filed by the respondent in the Court of the Rent Controller, Amritsar. In fact, this admission of the appellant has weighed heavily with the High Court which has opined that even if the summons was not duly served, the appellant was aware of the pendency of the suit and, therefore, the application under Order 9 Rule 12 CPC did not have any merit.
The High Court has over-looked the second proviso to Rule 13 of Order 9 CPC added by the 1976 Amendment which provides 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. It is the knowledge of the "date of hearing" and not the knowledge of "pendency of suit" which is relevant for the purpose of the proviso above said. Then the present one is not a case of mere irregularity in service of summons; on the facts it is a case of non-service of summons. The appellant has appeared in the witness box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim which he did not avail and utilise."
6. In the present case summons along with a copy of the ejectment petition has been | duly received by the tenant-petitioner on 8.8.1997 clearly specifying the date of hearing to be 23.8.1997. The tenant-petitioner has duly signed the summons in Punjabi as Baldev Singh son of Hari Singh acknowledging receipt of a copy of the ejectment petition. The tenant-petitioner could not successfully dispute his signature before the Courts below and, therefore, categorical and concurrent findings have been recorded to that effect. Therefore, on principles, precedents and facts there is absolutely no scope to interfere with orders passed by the Courts below.
7. For the sake of argument, even if it is presumed that no copy of the ejectment petition was received by the tenant-petitioner, it would at best be a mere irregularity within the meaning of proviso to Rule 8 of Order IX of the Code because on 8.8.1997 the tenant-petitioner was appraised that the date of appearance before the Court is 23.8.1997, as has been held by this Court in Dev Koran's case (supra). Therefore, no ground is provided to set aside the impugned order.
The argument of learned counsel for the tenant-petitioner based on the judgment in the case of Rakesh Wadhawan (supra) would not be available because the question of grant of opportunity would not arise to a tenant who has refused to appear before the Court after summons have been duly served on him along with a copy of the ejectment petition. It is evident that he was aware of the date of appearance before the Court which was fixed for 23.8.1997 and the summons were served on him on 8.8.1997. There was ample opportunity given but the tenant-petitioner has failed to avail it. In such an eventuality, the principles laid down in the judgment of the Supreme Court in Rakesh Wadhawan's case (supra) would not be attracted. The argument is wild and is imaginative.
For the reasons.stated above, this petition fails and the same is dismissed.