Allahabad High Court
Shrawan @ Sarvan Gupta vs Smt. Renu Kushwaha And 3 Others on 19 August, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 5 Case :- MATTERS UNDER ARTICLE 227 No. - 6077 of 2019 Petitioner :- Shrawan @ Sarvan Gupta Respondent :- Smt. Renu Kushwaha And 3 Others Counsel for Petitioner :- Siddharth Nandan Counsel for Respondent :- Nitin Chandra Mishra Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Siddharth Nandan, learned counsel for the applicant - petitioner and Sri Anoop Trivedi, learned Senior Advocate, assisted by Sri Nitin Chandra Mishra, learned counsel for the plaintiff - opposite party no.4.
2. This petition under Article 227 of the Constitution of India has been filed praying to set aside the order dated 30.04.2019 in Misc. Case No.45 of 2018 (Shrawan Vs. Javed) under Rule 32 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to "Rules, 1972") read with Section 151 C.P.C. passed by the Civil Judge (S.D.), Court No.18, Deoria, rejecting the restoration application 4 Ga, filed by the applicant-petitioner for recall of the ex-party judgment and decree dated 07.04.2018 in P.A. Case No.01 of 2017 {Javed Ahmad Vs. Smt. Renu Kushwaha, Dipu Kushwaha, Gaurav Kushawaha (defendant 1st set) and Venketeshwar (defendant 2nd set)}.
3. Learned counsel for the petitioner has submitted at the very outset that he is not pressing the relief no.2 since the application has been decided by the impugned order.
Facts:-
4. Briefly stated facts of the present case are that the defendant 1st set/respondent nos.1, 2 and 3 are the tenants of a portion of the disputed house and the defendant no.4 Venketeshwar (defendant 2nd set) is tenant of a separate portion/shop in the disputed house No.201, Ward No.22, Abubkar Nagar, Station Road, Tappa - Deoria, Pargana - Salempur Majhauli, Tehsil & District - Deoria. The aforesaid disputed house was originally owned by one Brijish Johara, son of Farukh Chisti who had let out separate portions in the aforesaid house to the defendant 2nd set and the father of the defendant 1st set. He sold the disputed house to the plaintiff-opposite party no.4 Sri Javed Ahmad by a registered sale deed dated 10.04.2013. The aforesaid plaintiff/opposite party no.4 Javed Ahmad filed a P.A. Case No.01 of 2017, alleging that a registered notice dated 22.09.2015 and 10.02.2014 were given by him to the defendant 1st set and the defendant 2nd set to vacate the disputed house on the ground of bonafide need of the disputed accommodation. The notices were shown to be served by substituted service i.e. by the alleged publication of notice in some news paper "Jagat Asha". Thereafter the P.A. Case was proceeded ex-parte and an ex-parte judgment and decree dated 07.04.2018 was passed by Civil Judge (S.D.), Court No.18, Deoria, giving reasons and his findings as under:-
"izLrqr okn esa nkf[ky lk{; ds vk/kkj ij U;k;ky; dk ;g er gS fd oknh fookfnr edku dk Lokeh o edku ekfyd gS rFkk izfroknh izFke i{k o f}rh; i{k fdjk;snkj gSA oknh dks fookfnr edku dh ln~Hkkoh vko';drk gSA ;fn oknh lnHkkoh vko';drk ds vk/kkj ij iz'uxr edku dks mlds i{k esa voeqDr ugh fd;k x;k rks oknh dks vf/kd dfBukbZ dkfjr gksxhA i=koyh ij miyC/k ekSf[kd o nLrkosth lk{;ks ds voyksdu ds mijkUr U;k;ky; bl er dk gS fd oknh vius okni= ds dFkuksa dks lkfcr djus esa ,di{kh; :i ls lQy jgk gSA blds [k.Mu esa i=koyh ij ,slk dksbZ lk{; ugha gS ftlls oknh ds dFkuksa ij vfo'okl fd;k tk;sA vr,o oknh dk vkosnu vkKIr fd;s tkus ;ksX; gSA"
5. It was well within the knowledge of the plaintiff-opposite party no.4 Javed Ahmad that the defendant 2nd set, namely Sri Venketeshwar is missing since the year 2013. It appears that when one Sri Subhas son of the defendant 2nd set heard about the aforesaid P.A. Case No.01 of 2017, he filed an impeleadment application 28 Ga stating that the defendant no.4 is missing since the year 2013 and, therefore, he may be impleaded as defendant. The Impleadment application 28 Ga was rejected by the Civil Judge (S.D.) Court No.18, Deoria, by an order dated 16.02.2018 on the grounds firstly that the applicant - Subhash son of Venketeshwar could not file any evidence to establish that his presence is necessary in P.A. Case No.01 of 2017 for effective disposal of the case and secondly that seven years have not passed since the missing of defendant no.4 Venketeshwar, therefore, his civil death can not be assumed.
6, The aforesaid Subhash son of the defendant no.4 has filed an appeal challenging the aforesaid ex parte judgment and decree dated 07.04.2018 which is stated to be pending.
7. The defendant 1st set, namely, Renu Kushwaha and others filed an application 4 Ga under Rule 32 read with Section 22 (b) of the Rules 1972 for setting aside the aforesaid judgment and decree dated 07.04.2018, which was registered as Misc. Case No.46 of 2018 (Renu Kushwaha Vs. Javed). It was allowed by the Prescribed Authority/Civil Judge (S.D.), Court No.18, Deoria, by order dated 08.04.2019 in which the Prescribed Authority recorded a finding that the news paper in which the notice of P.A. Case No.01 of 2017 was published, had no circulation in the area. Accordingly, the service of notice upon the defendant 1st set was held to be not sufficient. Consequently the judgment dated 07.04.2018 was set aside and the P.A. Case no.01 of 2017 (Javed Ahmad Vs. Smt. Renu Kushwaha and others) was restored to its original number with respect to the defendant 1st set (defendant nos. 1 to 3). It was also observed that service of notice was not made upon the defendants as per rules and the impugned ex-parte judgment has been passed without proper service upon the defendants.
8. The applicant/petitioner is the son of the defendant 2nd set, namely, Sri Venketeshwar. He also filed an application 4 Ga, dated 14.05.2018 under Order IX Rule 13 read with Section 151 C.P.C. and Rule 22 of the Rules, 1972. The defendant 1st set and the applicant-petitioner herein both have filed the recall applications simultaneously. In his recall application the applicant petitioner has clearly stated that he came to know about the ex parte judgment dated 07.04.2018 in P.A. Case No.01 of 2017 when the plaintiff-opposite party no.4 herein threatened him for eviction on the basis of the aforesaid judgment and decree then he contacted his counsel and enquired and got inspected the file of the case on 10/11.05.2018 and came to know that fraudulently the plaintiff-opposite party no.4 had instituted the P.A. case and got it decreed ex-parte by judgment and decree dated 07.04.2018 and no notice of the aforesaid case was served. The aforesaid recall application of the applicant/petitioner was registered as Misc. Case No. 45 of 2018 (Shravan Vs. Javed) which was rejected by the impugned order dated 30.04.2019, passed by the Civil Judge (S.D.), Court No.18, Deoria, observing as under :-
"i=koyh ds lkFk ih0,0okn la0&01@17 dh i=koyh miyC/k gS] ftlds ifj'khyu ls ;g izdV gksrk gS fd mDr ekeys esa orZeku izdh.kZ okn ds dk;ehnkrk tkosn vgen dh vksj ls ,d izkFkZuk i= 28x izLrqr fd;k x;k Fkk rFkk mDr izkFkZuk i= ds ek/;e ls izkFkhZ ds }kjk ;gh rdZ fy;k x;k Fkk fd mlds firk cSdVs'oj tks fd izfri{kh la0&4@ f}rh; i{k gSA 4&5 o"kksZ ls xk;c gSA vr% mls mijksDr ekeys esa muds fof/kd izfrfuf/k ds rkSj ij i{kdkj dk;e dj fy;k tk;A ftl izkFkZuk i= ij fnukad 16-02-18 dks U;k;ky; }kjk xq.k nks"k ij vkns'k ikfjr djrs gq;s izkFkhZ dks okn dk mfpr ,oa vko';d i{kdkj gksuk ugh ekuk x;k rFkk mldk i{kdkj cuk;s tkus dk izkFkZuk i= 28x xq.k nks"k ij fujLr dj fn;k x;k gS] ftl vkns'k ds fo:) izkFkhZ@ dk;ehnkrk dh vksj ls dksbZ vihy@ fjohtu izLrqr ugh dh x;h gS rFkk mDr vkns'k vafre gks pqdk gS tks bl U;k;ky; ij Hkh ck/;dkjh gSA vkns'k&9 fu;e&13 lh0ih0lh0 esa fn;s x;s izko/kku ds vuqlkj **fdlh ,sls ekeys esa ftlrda fMdzh fdlh izfroknh ds fo:) ,di{kh; ikfjr dh x;h gS] og izfroknh vikLr djkus ds vkns'k ds fy;s vkosnu ml U;k;ky; esa dj ldsxk] ftlds }kjk og fMdzh ikfjr dh x;h Fkh vkSj ;fn og U;k;ky; dk ;g lek/kku dj nsrk gS fd lEeu dk rkehyk lE;d~ :i ls ugh dh x;h Fkh ;k ogokn dh lquokbZ ds fy;s iqdkj gksus ij mllatkr gksus ls fdlh Ik;kZIr gsrqd ls fuokfjr jgk Fkk rks [kpsZ ds ckjs esa U;k;ky; esa tek djus ds ;k vU;Fkk ,sls fuca/kuks ij tks og Bhd le>s] U;k;ky; ;g vkns'k djsxk fd tgka rd fMdzh ml izfroknh ds fo:) gS ogka rd og vikLr dj nh tk;] vkSj okn esa vkxs dk;Zokgh djus ds fy;s fnu fu;r djsxk% ijUrq tgka fMdzh ,slh gS fd dsoy ,sls izfroknh ds fo:) vikLr ugh dh tk ldrh gS ogka og vU; lHkh izfrokfn;ks ;k muesa ls fdlh ;k fdUgh ds fo:) vikLr dh tk ldsxh% ijUrq ;g vkSj fd ;fn fdlh U;k;ky; dk ;g lek/kku gks tkrk gS fd izfroknh dks lquokbZ dh rkjh[k dh lwpuk Fkh vkSj milatkr gksus ds fy;s vkSj oknh ds nkos dk mRrj nsus ds fy;s i;kZIr le; Fkk rks og ,di{kh; ikfjr fMdzh dks dsoy bl vk/kkj ij vikLr ugh djsxk fd lEeu dh rkehyk esa vfu;ferk gqbZ FkhA** vFkkZr~ tgka izfroknh dks okn dh lquokbZ dh rkjh[k dh lwpuk Fkh ogka rkehyk esa vfu;ferk ds vk/kkj ij ,di{kh; fMdzh dks vikLr ugh fd;k tk ldrk gSA izLrqr ekeys esa ,di{kh; fMdzh fnukad 07-04-18 dks ikfjr dh x;h gS tcfd fnukad 16-02-18 dks izkFkZuk i= 28 x tks fd izLrqr ekeys ds dk;ehnkrk ds }kjk izLrqr fd;k x;k gS] [kkfjt fd;k x;k Fkk vFkkZr~ dk;ehnkrk dks mDr okn dh iw.kZ :i ls tkudkjh Fkh rFkk og mDr ekeys esa mifLFkr Hkh jgk FkkA ;|fi U;k;ky; }kjk mls okn dk i{kdkj gksuk ugh ekuk x;k rFkk U;k;ky; ds mDr vkns'k ds fo:) dksbZ pkjktksbZ ugh fd;s tkus ds dkj.k ;g Hkh ekuk tk;sxk fd mlds }kjk vius i{kdkj cuus ds vf/kdkj dk ifjR;kx Hkh dj fn;k x;k gSA ;fn izLrqr ekeys esa mldk izkFkZuk i= 4x dk;eh gsrq Lohdkj fd;k tkrk gS rks bldk izHkko vkns'k&1 fu;e&10 lh0ih0lh0 esa fn;s x;s izkOk/kku ds vuq:i r`rh; i{kdkj dks i{kdkj dk;e djus tSlk gksxk rFkk vius iwoZ vkns'k fnukad 16-02-18 dks izfrdwy Hkh gksxk ftldh vuqefr fof/k iznku ugh djrh gS tSlk fd ekuuh; loksZPp U;k;ky; }kjk fof/k fu.kZ; Ram Prakash Agarwal and Another Vs. Gopi Krishnan(Dead through L.Rs.) and Others 2013(4) AWC 3856(SC) esa vo/kkfjr Hkh fd;k x;k gS fd& '' 16. ----------Permitting an application under Order IX, Rule 13, CPC by a non-party, would amount to adding a party to the case, which is provided for under Order 1, Rule 10, CPC, or setting aside the ex-parte judgment and decree, i.e., seeking a declaration that he decree is null and void for any reason, which can be sought independently such a party.
20. In view of the above, the legal issues involved herein, can be summarised as under:
(I) an application under Order IX, Rule 13, CPC cannot be filed by a person who was not initially a party to the proceedings."
dk;ehnkrk ds }kjk Hkh dk;eh izkFkZuk i= ds ek/;e ls vizR;{k :i ls vius izkFkZuk i= 28x tks ih0,0okn la0 01@17 esa [kkfjt fd;k tk pqdk gS] dks Lohdkj djk;s tkus dk iz;kl fd;k tk jgk gS] ftldk bl U;k;ky; dks {ks=kf/kdkj izkIr ugh gS D;ksafd mDr vkns'k fnukad 16-02-18 ,d vafre vkns'k gS] vr% ekuuh; loksZPp U;k;ky; dh fof/k O;oLFkk Ram Prakash Agarwal and Another Vs. Gopi Krishnan(Dead through L.Rs.) and Others (SUPRA) ds vuq:i dk;ehnkrk tks fd ih0,0okn la0&01@17 dk i{kdkj ugh Fkk mDr ih0,0okn esa ikfjr ,di{kh; fMdzh dks vikLr djkus dk vf/kdkjh ugh gSA izkFkZuk i= dk;ehnkrk iks"k.kh; ugh gS] [kkfjt fd;s tkus ;ksX; gSA"
9. Aggrieved with the aforesaid order dated 30.04.2019 in Misc. Case No.45 of 2018 (Shravan Vs. Javed), passed by the Civil Judge (S.D.), Court No.18, Deoria, the present petition under Article 227 of the Constitution of India has been filed by the applicant/petitioner.
Submissions
10. Learned counsel for the applicant-petitioner submits as under:-
(i) The P.A. Case was filed by the plaintiff-opposite party no.4, fraudulently knowing it well that the tenant defendant 2nd set (father of the applicant) is missing. The applicant-petitioner is the legal representative of the defendant 2nd set , namely, Sri Venketeshwar and is occupying the tenanted portion but he was not impleaded as defendant. As and when the ex-parte judgment in P.A. Case no.01 of 2017 came to his notice, he filed the restoration application. Almost in similar set of facts the restoration application of the defendant nos. 1, 2 and 3 (defendant/tenant 1st set) was allowed by the court below but recall application of the applicant was arbitrarily and illegally rejected by the impugned order.
(ii) The provisions of Rule 22 (b) and Rule 32 of the Rules 1972 are applicable for setting aside the ex-parte judgment and restoration of the P.A. Case.
(iii) The impugned order has been passed illegally and contrary to the provisions of Rule 22(b) read with Rule 32 of the Rules, 1972 and Section 151 C.P.C.
11. In support of his submissions he relied upon the judgments of this Court in Heera Lal Sharma Vs. XVth Addl. District Judge, Kanpur & others 1983 ARC 535 (para 11 to 14) and Tara Shankar Vs. Vinod Kumar Verma and others 1993 (2) ARC6 (paras 4 & 7).
12. Sri Anoop Trivedi, learned Senior Advocate, submits as under:-
(i) The applicant-petitioner had no locus standi to file an application 4 Ga for recall of the ex-parte judgment and decree dated 07.04.2018 in P.A. Case No.01 of 2017, since the applicant-petitioner was not party to the aforesaid P.A. Case. Under Order IX Rule 13 C.P.C. only that person who is a party in the suit can apply for recall of the ex-parte judgment and decree.
(ii) Since the impleadment application of the brother of the petitioner (paper no.28 Ga) was rejected by the court below by order dated 16.02.2018, therefore, it shall operate as res judicata. Therefore, the restoration application 4 Ga filed by the applicant - petitioner was lawfully rejected by the courts below.
(iii) Application under Rule 22 of the Rules, 1972 could be filed only when a substitution in respect of defendant no.4 is made. Since from the date of missing of the defendant no.4 seven years have not passed, therefore, no one could be substituted in place of the defendant no.4 Venketeshwar. Therefore, without substitution, no application under Rule 22 read with Rule 32 of the Rules, 1972 was maintainable. Therefore, it was rightly rejected by the court below.
13. In support of his submissions Sri Anoop Trivedi, learned Senior Advocate, has relied upon a judgment of Hon'ble Supreme Court in Ram Prakash Agarwal and another Vs. Gopi Krishan (Dead through Lrs.) and others, 2013 (4) AWC 3856.
Discussion & Findings:
14. I have carefully considered the submissions of learned counsels for the parties and with their consent this petition is being finally heard without calling for a counter affidavit.
15. Undisputedly, a composite release application was filed by the plaintiff-opposite party no.4 against two distinct tenants of separate tenanted portions which was allowed by ex-parte judgment and decree dated 07.04.2018 in P.A. Case No.01 of 2017, passed by the Civil Judge, (S.D.), Court No.18, Deoria, which neither contained any discussion to the evidence led by the plaintiff-respondent no.4 to establish his bonafide need nor the comparative hardship to be in his favour. Conclusion based on no reason was recorded and the P.A. Case was decreed. The service of notices upon the defendants were shown by substituted service by publication of notices in some newspaper "Jagat Asha" which had no circulation in the area as has been observed by the same Civil Judge/Prescribed Authority while allowing the restoration application of the defendant 1st set/opposite party nos. 1,2 and 3, thereby setting aside the ex-parte judgment and decree dated 07.04.2018 in P.A. Case No.01 of 2017 and restoring the P.A. Case to its original number.
16. It is admitted case of the plaintiff-opposite party no.4 that the defendant 2nd set, namely, Venketeshwar (father of he applicant-petitioner herein) is missing since the year 2013, which fact is evident from his own application dated 30.10.2014 (paper no.25 Ga) filed in Suit No.592 of 2013 ( Venketeshwar Vs. Javed Ahmad). Thus, at the time of giving notice dated 22.09.2015 or 10.02.2014 as well as at the time of filing P.A. Case no.01 of 2017, the plaintiff-opposite party no.4 was well aware of the fact that the defendant-2nd set, namely, Venketeshwar is missing since the year 2013 and yet he has deliberately not impleaded any of his legal representatives or his family members who were occupying the tenanted premises.
17. The application 4 Ga being Misc. Case No.45 of 2018 (Shrawan Vs. Javed) was filed by the applicant-petitioner and not by his brother Subhash. However, in the impugned order rejecting the said application the court below has proceeded with the assumption as if the applicant-petitioner Shrawan had earlier filed an Impleadment application 28 Ga. The Impleadment application 28 Ga was filed by the brother of the applicant-petitioner which was rejected by the court below by order dated 16.02.2018 for the reasons aforementioned which itself speaks about the correctness of the order. That order prima facie appears to have been passed leaving the tenants remedyless and denying them opportunity of hearing before passing the ex parte judgment dated 07.04.2018.
18. The application 4 Ga filed by the applicant-petitioner herein for recall of the ex parte judgment dated 07.04.2018 refers to the provisions of Section 151 C.P.C. and Rule 22 of the Rules 1972. The relevant provisions in rent matters under U.P. Act 13 of 1972, for restoration of cases are the provisions of Section 34 (8) of U.P. Act 13 of 1972 and Rule 22 (b) and Rule 32 of the Rules, 1972, which are reproduced below:-
"Section 34 (8) - Powers of various authorities and procedure to be followed by them - For the purposes of any proceedings under this Act and for purposes connected therewith the said authorities shall have such other powers and shall follow such procedure, principles of proof, rules of limitation and guiding principles as may be prescribed.
Rule 22 . Powers under the Code of Civil Procedure, 1908 [Section 34 (1) (g)] - The District Magistrate, the Prescribed Authority or the Appellate or revising Authority shall, for the purposes of holding any inquiry or hearing any appeal or revision under the Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely-
(a) * * * * * * *
(b) the power to proceed ex parte and to set aside, for sufficient cause, an order passed ex parte;
(c) * * * * * * *
(d) * * * * * * *
(e) * * * * * * *
(f) * * * * * * * Rule 32 - Application for setting aside an ex parte order or for restoration [Section 34(8) and 41]- The District Magistrate, the Prescribed Authority or the Appellant or Revising Authority, as the case may be, may for sufficient cause-
(a) set aside an ex parte order deciding an application for the determination of a dispute under Section 8 or for the determination of Standard rent under Section 9 or for the release of any building or specified part thereof or any land appurtenant to such building under Section 21 or for allotment of a new building under sub Section (2) of Section 24or for restoration of any amenity under sub-section (1) of Section 27 or for major repairs under sub-section (4) of Section 28 or an appeal under Section 22 or a revision under Section 18;
(b) restore an application or an appeal or revision referred to in clause (a) as well as an application , for release of any building or part thereof or any land appurtenant to such building where such application or appeal or revision has been dismissed for default of appearance of the applicant or the appellant or revisionist, as the case may be, or his counsel."
Service of Notice under the U.P. Act XIII of 1972:-
19. Section 21(3) of U.P. Act 13 of 1972 specifically mandates that "no order shall be made under sub-section (1), or sub-section (1-A) or sub-section (2) except after giving to the parties concerned a reasonable opportunity of being heard, provided that where the tenant being a servant of Government or of any local authority or any public sector corporation does not contest the application, then a reasonable opportunity of being heard shall be given to the District Magistrate, who shall have the right to oppose the application. Thus service of notice under Section 21 of the Act is sine qua non for the exercise of jurisdiction under the section 21. Section 34 provides for applicability of certain provisions of the Code of Civil Procedure Code 1908 in matters under U.P. Act 13 of 1972 for the purpose of exercising powers by various authorities and procedure to be followed by them. Rule 28 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 is referable to Section 34(8) of U.P. Act 13 of 1972 and it provides for service of notice. Rule 28 of the Rules 1972 is reproduced below:-
"Rule 28 :
Service of notice [(Section 34(8)] (1) A notice Issued by the District Magistrate, the Prescribed Authority or the Appellate or Revising Authority under the provisions of the Act shall be served on the person concerned-
(a) by giving or tendering it to such person, or his Counsel, or
(b) by giving or tendering it to any adult member of his family ; or
(c) if no such person is found, by leaving it at his last known place of abode or business or in the case of an appeal or revision at his address as given under Rule 6, or
(d) if none of the means aforesaid is available by affixing it on some conspicuous part of his last known place of abode, or business or in the case of an appeal or revision at his address as given under Rule 6.
(2) If party files a duly stamped and addressed envelope for service of any notice, then it shall be served by registered post.
(3) In the case of an appeal or revision unless the Appellant has taken action under Sub-rule (2), the Appellate or Revising Authority shall send the notices to the District Magistrate or the Prescribed Authority, as the case may be for having service effected."
20. The Rule 22, 28, and 32 have been framed in exercise of powers conferred under Section 34. Perusal of Rule 28 of the Rules 1972 shows that it does not provide for service of notice by publication. Clause (a) of Sub-section 1 of Section 34 of U.P. Act 13 of 1972 provides for "summoning and enforcing the attendance of any person and examining him on oath". It does not refer to service of notice of the proceedings under the Act to the parties against whom an action under Section 21(1) is sought to be taken. The language used in Section 34(1)(a) of the Act is plain. It refers to the procedure for procuring and enforcing attendance of a witness for being examined on oath. Rule 28 specifically provides the procedure for service of notice. It provides that a notice issued by the District Magistrate, the Prescribed Authority or the Appellate Authority or the Revising Authority under the provisions of the Act shall be served on the person concerned in the manner prescribed therein. It is as such this Rule which contains the procedure by which a notice contemplated by sub-section 3 of Section 21 of the Act had to be issued.
21. The provisions of Section 21(3), Section 34(1)(a) of the U.P. Act 13 of 1972 and Rule 28 of the Rules, 1972 have been explained by this Court in Heera lal Sharma Vs. XVth Addl. District Judge, Kanpur and others, 1983 ARC 535 (paras 8, 12 & 13) (which supports the view taken above), as under:-
"8. A copy of the order-sheet of the Court of the Prescribed Authority has been filed along with the writ petition and a certified copy thereof has been filed along with the rejoinder-affidavit. It indicates that before passing the order for the notices being published in a newspaper the Prescribed Authority was of the view that service of notice by other methods was not sufficient. If, therefore, it was not possible to serve the notice under Section 21 by publication it is a case where even on the own finding of the Prescribed Authority the notice of application under Section 21 had not been served under any of the modes provided under Rule 28 of the Rules. Sub-section (3) of Section 21 of the Act contemplates that no order shall be made under Sub-section (1) or Sub-section (1-A) or Sub-section (2) of Section 21 except after giving to the parties concerned a reasonable opportunity of being heard. The process of granting of reasonable opportunity of being heard starts by serving of notice on the person concerned to appear in order to have his say in the matter. As such, service of a notice under Section 21 of the Act is sine qua non for the exercise of jurisdiction under the said section. In Shantanu v. State {1970ALJ 1174(FB)} a Full Bench of this Court has held that service of a notice where such notice is required is preliminary to the acquisition of the jurisdiction to proceed in the matter. It was further held relying on the decision of the Supreme Court in Kiran Singh v. Chaman Paswan AIR 1954 SC 340 that it was well settled that an objection to lack of jurisdiction can be taken at any stage of the proceedings and even in collateral proceedings. It is settled law that plea of res-judicata raises a question of jurisdiction (See Joy Chand v. Kamalaksha AIR 1949 PC 239). It is again settled law that if a statute requires a particular thing to be done in a particular manner, it should be done in that manner or not at all (See Asstt. Collector C.E v. N.T. Co. of India Ltd. AIR 1972 SC 2563 and Ram Chandra v. Govind : AIR 1975 SC 915). In the case of Ramchandra (supra) it was emphasised that failure to comply with the prescribed provisions vitiate the consequential order and render it non est. As already seen above Sub-section (3) of Section 21 of the Act contemplates a notice being given in order to enable the respondent to the application to have a say in the matter. In Mathura Prasad v. Dossibai, AIR 1971 SC 2356, it was held that a question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of that Court. If by an erroneous interpretation of the statute the Court holds that it has the jurisdiction, the question would not operate as res-judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res-judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise, because, if these decisions are considered as conclusive, it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature.
12. The only clause on which reliance has been placed by Counsel for respondent No. 3 in support of his submission that recourse to service of notice by publication could be taken is Clause (a) of Sub-section (1) of Section 34 of the Act which reads:
"(a) summoning and enforcing the attendance of any person and examining him on oath."
A perusal of Rules 9 to 20 of Order V, C.P.C. indicates that all the modes of service which are prescribed in Rule 28 of the Rules are to be found in one or the other rule between these Rules 9 to 20 of Order V. If Clause (a) of Section 34(1) of the Act is interpreted in such a manner as to confer on the authorities mentioned in Section 34 of the Act the power to take recourse to the modes of service prescribed in Order V, Rules 9 to 20 C.P.C. there would have been apparently no necessity of enacting Rule 28 of the rules at all inasmuch as whatever is prescribed in Rule 28 is already to be found in one or the other rules between Rules 9 and 20 of Order V, C.P.C. Sub-clause (F) of Section 34(1) contemplates exercise of power in regard to any other matter which may be prescribed. Likewise Sub-section (8) of Section 34 contemplates prescription by rules in regard to such other powers. The expression "such other powers" obviously means what has not already been provided in any of the Sub-clauses (a) to (f). This also makes it clear that the provisions contained in Rules 9 to 20 of Order V, C.P.C. had not been made applicable to the proceedings under the Act and Clause (a) of Section 34(1) of the Act cannot therefore be interpreted in a manner to include that power.
13. Further as seen above, Clause (a) of Section 34(1) provides for summoning and enforcing the attendance of any person and examining him on oath. This obviously refers to issuing of summons requiring a person to attend and given evidence as witness. It does not refer to service of notice of the proceeding under the Act to the party against whom an action is sought to be taken. When a notice is issued to the Defendant or Respondent in a proceeding he is not required to attend for being examined on oath. Further, he is not compelled to appear. It is left to his choice whether or not to appear and contest the proceedings. In this view of the matter there is no question of enforcing his attendance. On the other hand a witness is required to attend for being examined on oath and if he fails to appear his attendance is to be enforced. On the language used in Section 34(1)(a) of the Act it is plaint that this provision refers to the procedure for procuring and enforcing attendance of a witness for being examined on oath. Rule 28 on the other hand provides that a notice issued by the District Magistrate, the Prescribed Authority or the appellate or revising authority under the provisions of the Act shall be served on the person concerned in the manner prescribed therein. It is as such this rule which contains the procedure by which a notice contemplated by the Sub-section (3) of Section 21 of the Act had to be issued."
(Emphasis supplied by me)
22. In Tara Shankar Vs. Vinod Kumar Verma and others, 1993 (2) ARC 6 (7) (paras 3 & 7), Hon'ble Single Judge considered the provisions of Order 9 Rule 13 C.P.C. while dealing in trust matter and held as under:-
"3. The brief question that falls for consideration is whether a decree passed ex parte, affecting a person, who was not a party to the decree could be set aside under Order 9 Rule 13 C.P.C.
7. In the case of Surajdeo v. Board of Revenue U.P. Allahabad and others reported in AIR 1982 All 23, this Court has observed that where a stranger who was not a party to a suit alleges that the decree passed therein is obtained by fraud and collusion, he can bring a regular suit for the reliefs claimed by him but there is no hard and fast rule that he cannot bring the correct facts to the notice of the court concerned that fraud had been practised upon the court and that the court had committed patent Illegality in passing the ex parte decree in favour of the Plaintiff in that suit specially when he was likely to be affected by the ex parte decree in favour of the Plaintiff in that suit. It was held that when a stranger is vitally interested in the subject matter of the suit decree ex parte application by him to set aside the ex parte decree under order 9 Rule 13 Code of Civil Procedure is competent. It is maintainable under Section 151 Code of Civil Procedure also. It would not be correct to say that the trial court in such circumstances had no jurisdiction to set aside the ex parte decree, which was obtained by collusion and fraud practised by the Plaintiff and the Defendants in that suit."
(Emphasis supplied by me) Inherent power to recall and set aside an order:-
23. In the case of Indian Bank vs M/S Satyam Fibres (India} Pvt.Ltd, (1996) 5 SCC 550 (Para 23), Hon'ble Supreme Court has held that the Court has inherent power to recall and set aside an order :-
(i) when fraud has been practised upon the Court
(ii) when the Court is misled by a party or
(iii) when the Court itself commits a mistake which prejudices a party
24. In A.R. Antulay Vs. R.S. Nayak & Anr. (1988) 2 SCC 602 (para para 130), Hon'ble Supreme Court noticed motions to set aside judgments being permitted where: (i) a judgment was rendered in ignorance of the fact that a party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented, (ii) a judgment was obtained by fraud, (iii) a party has had no notice and a decree was made against him and such party approaches the Court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.
25. In Corpus Juris Secundum (Vol. XIX) under the Chapter "Judgment- Opening and Vacating" (paras.265 to 284, at pp. 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actions. Invalidity of the judgment of such nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results.
26. In Budhia Swain and others Vs. Gopinath Deb and others (1999) 4 SCC 396 (paras 8 & 9) Hon'ble Supreme Court again considered the scope of power of a Tribunal or a Court to recall an order and held as under:-
"8.In our opinion a tribunal or a court may recall an order earlier made by it if
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining the judgment,
(iii) there has been a mistake of the court prejudicing a party, or
(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.
9. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. In Hira Lal Patni Vs. Sri Kali Nath AIR 1962 SC 199, it was held :-
".......The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it."
Whether ex parte judgment was liable to be recalled:-
27. The fact regarding missing of the tenant-defendant 2nd set (defendant no.4) since the year 2013, came to the notice of the Court during pendency of the P.A. Case No.16 of 2017. Order I Rule 10 sub-Rule 2 confers power upon the Court that the Court may at any stage of the proceedings, either upon or without the application of either party, and on such term as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. Thus, as per this provision, the Court may either upon or without the application of either party order that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. The original tenant Venketeshwar (defendant 2nd set) was missing. His sons were occupying the tenanted portion as tenant. The applicant-petitioner is the son of tenant-defendant 2nd set. Therefore, the Court below should have added him as party inasmuch as the original tenant was not available to contest the P.A. Case because he was missing since the year 2013. Notice as contemplated under Section 21(3) of U.P. Act 13 of 1972 was not served upon the tenant-defendant 2nd set or upon the applicant-petitioner in the manner prescribed by Rule 28 of the Rules. In the matter of the tenant-defendant 1st set the court below found that there was no valid substituted service inasmuch as the newspaper in which the publication was made, had no circulation in the area. By one and the same publication in the same alleged newspaper the notices were sought to be served upon both sets of defendants. Therefore, once the Court itself found in the matter of the tenant-defendant 1st set that there was no valid substituted service, therefore, it can be safely concluded that there was no substituted service upon the tenant-defendant 2nd set also. Thus, the judgment and decree dated 07.04.2008 in P.A. Case No.01 of 2017, was passed ex-parte without service on notice upon the tenant and in breach of Section 21(3) of the Act and Rule 28 of the Rules.
28. Perusal of the aforequoted provisions leaves no manner of doubt that for sufficient cause an ex parte order can be set aside. It is not in dispute that the applicant-petitioner is the son of the tenant-defendant 2nd set (defendant no.4), who is stated to be missing since the year 2013. The plaintiff-opposite party No.4 had filed the P.A. Case in question on 31.01.2017. It is also not in dispute that the tenanted portion is in occupation of the sons of the tenant-defendant-2nd set (defendant no.4). The court below itself has held in its order dated 8.4.2019 in Misc. Case no.46 of 2018 (Smt. Renu Kushwaha Vs. Javed) arising from the same P.A. Case No. 01 of 2017 that the substituted service of notices upon the defendants by publication of notices in the news paper was not sufficient, but it set aside the ex-parte judgment and decree only with respect to the defendant no. 1 to 3. Therefore, since the impugned judgment in P.A. Case No.01 of 2017 was passed ex-parte without any service of notices upon the defendants including the tenant-defendant no.4 (defendant 2nd set), therefore, under the peculiar facts and circumstances of the case the impugned ex- parte judgment and decree should have been set aside in respect of the defendant no.4 also and the applicant petitioner(son of the defendant no.4) in occupation of the tenanted portion as tenant, should have been afforded an opportunity of hearing.
29. The judgment in the case of Ram Prakash Agarwal (supra) relied by learned counsel for plaintiff-respondent does not support the case of the plaintiff-respondent. In paragraphs 28.2 and 28.3 of the aforesaid judgment, Hon'ble Supreme Court has observed that inherent power under Section 151 C.P.C. can be exercised by the court to redress only such grievance for which no remedy is provided under C.P.C. and that in the event such an order has been obtained from the Court by playing fraud upon it, it is always open to the court to recall the order on the application of the person aggrieved. Perusal of the release application of the plaintiff-opposite party no.4 shows that even knowing it well that the defendant no.4 is missing yet the plaintiff-opposite party No.4 has neither mentioned this fact in his application nor impleaded the defendant No.4 through his sons. This shows malafide intention of the plaintiff-opposite party no.4 to get an ex parte decree of eviction. Therefore, the principles laid down in the judgment in the case of Ram Prakash Agarwal (supra) do not support the case of the plaintiff-opposite party no.4 rather it is against him.
Conclusion:-
30. The discussion made above are briefly summarised as under:-
(a) In a case filed under Section 21(1) of U.P. Act 13 of 1972, no order can be made under sub-section 1 or sub-section (1-A) or sub-section 2 of Section 21, except after giving to the parties concerned a reasonable opportunity of being heard.
(b) Service of notice under Section 21 of the Act is sine qua non for the exercise of jurisdiction under Section 21(1)/(1-A)/(2) of the U.P. Act 13 of 1972.
(c) Rule 28 of the Rules, 1972 has been framed by the State Government in exercise of powers conferred under sub-section 8 of Section 34 of the U.P. Act 13 of 1972.
(d) Rule 28 prescribes the procedure of service of notice under the Act by the District Magistrate, the Prescribed Authority or the appellate authority or the revising authority.
(e) Notice as contemplated under Section 21(3) of the Act in the rent case under Section 21(1) of the Act was not served upon the tenant-defendant 2nd set in the manner prescribed by Rule 28 of the Rules.
(f) Service of notice required by the aforesaid provisions is preliminary to the acquisition of jurisdiction to proceed in a rent case under Section 21(1) of the Act. Since there was no service of notice upon the tenant-defendant 2nd set, therefore, the ex parte judgment and decree dated 07.04.2018 in P.A. Case No.01 of 2017 (Javed Ahmad Vs. Smt. Renu Kushwaha & others) with respect to the tenant-defendant 2nd set, is liable to be set aside and the P.A. Case is liable to be restored to its original number by setting aside the impugned order dated 30.04.2019 in Misc. Case No.45 of 2018 and allowing the application 4 G.
(g) The Court has inherent power to recall and set aside the order where:-
(i) fraud has been practised upon the Court, or
(ii) when the Court is misled by a party, or
(iii) when the Court itself commits a mistake which prejudices a party, or
(iv) judgment was rendered in ignorance of the fact that a party had not been served at all and was shown as served, or
(v) judgment was rendered in ignorance of the fact that a necessary party had died and the estate was not represented, or
(vi) a party has had no notice and a decree was made against him or
(vii) there is inherent lack of jurisdiction and such lack of jurisdiction is patent
(h) The alleged substituted service was shown with respect to the tenant-defendant 1st set and the tenant-defendant 2nd set by single publication in one and the same news paper i.e. "Jagat Asha" and the court below itself held in its order dated 08.04.2019 in Misc. Case No.46 of 2018 filed by the tenant-defendant 1st set for setting asdie the judgment and decree dated 07.04.2018, that the substituted service by publication in the news paper "Jagat Asha" is not valid. Therefore, there was no valid substituted service upon the tenant-defendant 2nd set.
(i) The principles of res judicata as argued by learned counsel for the plaintiff-respondent shall not apply on the facts and circumstances of the present case and also in view of the law laid down in judgments of this court and of Hon'ble Supreme Court as discussed above (paras 21 to 26)
31. For all the reasons aforestated, this petition is allowed. The impugned order dated 30.04.2019 in Misc. Case No.45 of 2018 (Shrawan Vs. Javed) arising from P.A. Case No.01 of 2017, passed by the Civil Judge (S.D.), Court No.18, Deoria, is hereby set aside. The application 4 Ga filed by the applicant/petitioner is allowed by setting aside the ex-parte judgment and decree dated 07.04.2018 in P.A. Case No.01 of 2017. P.A. Case No.01 of 2017 is restored to its original number with respect to the tenant-defendant No.4 also.
Order Date :- 19.8.2019/vkg