Mohan Lal vs Mahendra Pratap Singh on 21 September, 2017

[Cites 7, Cited by 0]

Uttarakhand High Court

Mohan Lal vs Mahendra Pratap Singh on 21 September, 2017

Bench: Servesh Kumar Gupta

   IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                  Civil Revision No. 126 of 2017


Smt. Meena
                                                      .... Appellant

                                   Versus

Mahendra Pratap
                                                    .... Respondent

Mr. Tapan Singh, Advocate for the appellant.
Mr. Nagesh Aggarwal, Advocate for the respondent.


                               With
                  Civil Revision No. 127 of 2017


Mohan Lal
                                                      .... Appellant

                                   Versus

Mahendra Pratap Singh
                                                    .... Respondent

Mr. Tapan Singh, Advocate for the appellant.
Mr. Nagesh Aggarwal, Advocate for the respondent.


Hon'ble Servesh Kumar Gupta, J.

As the controversy as well as relief, institution of the suits claiming rent and eviction, proceeding the litigation ex parte, moving an application under Order IX Rule 13 of the CPC along with moving an application under section 17 of the Provincial Small Causes Courts Act are identical hence, both the matters titled above have been taken together for passing this common order.

Having heard it transpires that the landlord is Mahendra Pratap while Smt. Meena and Mohan Lal, the revisionists herein, are the tenants in their respective residential portions and there were three other co-tenants in other parts of the same building. Mr. Mahendra Pratap launched the JSCC proceedings way back in mid 2012 seeking the arrears of rent and eviction. All the five tenants moved an application under Section 30 of the Rent Control Act for deposit of rents through the same advocates Mr. Arvind Kumar Sharma in the district court.

It appears that the three tenants had contested the litigation but Smt. Meena and Shri Mohan Lal, the revisionists herein, did not put their appearance in the court below to contest the eviction proceedings (as it appears from the impugned order dated 25.8.2017). Several times the Process Server was sent to their respective dwelling, the dates whereof have been enumerated by the court below as 07.8.2012, 12.3.2013, 02.5.2013, 05.7.2013, 15.7.2013 & 24.9.2013. All the times Process Server reported the absence of the tenants at the place. So, he was constrained to affect the service by mode of pasting as contemplated Under Order V Rule 17 of the CPC. Even then the tenants did not appear to contest. So, at the instance of the plaintiff, the publication mode was adopted in the local newspaper. Although, such newspapers were recognized in the Judgeship for the purpose but of course cannot be accepted to have wide circulation in the District or even in the City.

Cumulatively in the light of all the above facts as have been indicated above, the Trial Court deemed the service sufficient and proceeded ex parte. Thus decree was passed on 28.9.2015 for eviction. When such decree was put into execution, the tenants immediately appeared and 3 moved an application under Order IX Rule 13 of CPC along with an application under section 5 of the Limitation Act as well as application under Order 17 of the Provincial Small Causes Courts, but the court below was not satisfied and have passed the impugned order dated 25.8.2017 which has been under challenge in these revisions.

The learned counsel of the revisionists have relied upon the judgment of the Hon'ble Apex Court G.P. Srivastava vs. R.K. Raizada and Others reported in (2000) 3 Supreme Court Cases, Page 54. The learned counsel has read the paragraph-7 of such judgment before the court which also deals the controversy to be dealt with under Order IX Rule 13 CPC and it has been held that unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree.

So, it is evident that the ex parte decree can be set aside only if the court is satisfied for the sufficient cause of the non appearance of the defendant. He has also relied upon another judgment Yallawwa vs. Shantavva reported in (1997) 11 Supreme Court Cases, Page 159. Paragraph-5 of such judgment has been relied wherein it has been laid down that the trial court could not have almost automatically granted the application for substituted service without taking steps for serving the respondent by ordinary procedure as laid down by Order V Rules 12, 15 and 17 CPC.

So, the contention of the learned counsel of the revisionist is that the substituted service by way of making a publication service in the ordinary local newspaper, which too was not having sufficient circulation in the city, could not have been opted by the court at the instance of the landlord.

I think this precedent is not applicable because before opting for the substituted service, the court sent the notice through Process Server under Order V Rules 12, 15 & 17 inasmuch as five times and every time the Process Server was constrained to affix the notice on the door of the demised premises in the absence of tenants. Besides, all these tenants/revisionists were well aware about the pending litigation launched by the landlord for the reason that they were defending their tenancy/deposit of rent etc. through the same advocate Mr. Arvind Kumar Sharma as well as they were next door neighbours to rest of the three tenants against whom the eviction proceedings were also launched together.

I think the tenants wanted to protract the litigation, frustrating the very purpose of the Provincial Small Causes Courts Act. There is no reason for me, as it appears, to set aside the impugned judgment.

Both the revisions hereby dismissed.

Stay applications (CLMA Nos. 12260/12262 of 2017) also rejects accordingly.

(Servesh Kumar Gupta, J.) 21.9.2017 Pooja

Unlock Advanced Research with PRISMAI

Uttarakhand High Court