Delhi District Court
Shri Jagdish Lal vs Shri Nanak Chand on 10 October, 2012
1
IN THE COURT OF SHRI O.P. GUPTA,
DJ&ASJ-In-Charge(West)/ARCT,DELHI
***
Unique ID NO. 02401C0307972012
RCT No. 53/2012
Shri Jagdish Lal
S/o Late Ishwar Dayal
R/o BG6/312 C, Paschim Vihar
New Delhi - 110 063 ..........Appellant
VERSUS
Shri Nanak Chand
S/o Shri Kirpa Ram
R/o BG6/112 B Paschim Vihar
New Delhi - 110 063 ...... Respondent
Date of institution : 11.7.2012
Arguments heard on : 03.10.2012
Date of order : 10.10.2012
ORDER
1. This order will dispose of an appeal against order dated 1.06.2012 passed by Ld. ARC dismissing application u/o 9 R 13 CPC for setting aside eviction order dated 1.12.2010 and 19.05.2011. The facts that can be gathered are that on 1.6.2009 an eviction petition u/s RCT no. 53/12 1 of 9 2 14 (1) (a), (c), (d) and (h) in respect of premises No. BG-6/301-A, Ground Floor, Paschim Vihar, New Delhi was filed. Summons thereof were issued to the appellant for 10.09.2009 on filing PF & RC. Summons by both modes were received with report of refusal and the appellant was proceeded ex-parte on the very first date i.e. 10.09.2009.
2. After recording ex-parte evidence, petition u/s 14(1)
(d) (c) and (h) was allowed vide order dated 1.12.2010. On the same date order u/s 15(1) was passed directing the appellant to pay rent @ Rs. 2640/- per month w.e.f. 2.6.2006 within one month. Copy of order was directed to be sent for 24.3.2011 to the appellant and simultaneously it was ordered that in case of non availability or refusal, appellant be served through affixation. Separate file for entitlement of benefit u/s 14(2) was directed to be prepared which was registered as M-61/10. The same was decided on 19.5.2011 and benefit u/s 14(2) was denied. This file shows that notice for 24.3.2011 at the suit premises was received unserved as the shop was lying locked. Notice from residential address was RCT no. 53/12 2 of 9 3 received with the report of refusal by some lady who did not tell her name. No witness met at the spot. No affixation was done as directed vide order dated 1.12.2010. Notice sent at residential address by RAD was received back with the report that appellant was not residing at the given address.
3. Notice for 23.4.2011 at the address of the suit premises was received with the report that someone present at the vegetables shop who did not tell his name and address informed the process server that the appellant was not available at the given address. Notice sent by RAD at the residential address was received with remarks that on inquiry nothing could be ascertained.
4. In application u/o 9 R 13 CPC the plea of the appellant was that he was not served at any point of time, service had been obtained by DH in collusion and connivance with the process server and post man. He was regularly paying rent to the DH but no receipt had been issued. Lastly on 9.3.2012 when he tendered rent, Decree Holder flatly refused to receive the same by RCT no. 53/12 3 of 9 4 saying that he had obtained eviction order. Thereafter he contacted to counsel who inspected the file on 14.3.2012. The report dated 17.6.2009 of the process server is most malafide which has been given at the instance and instigation of Decree Holder. Report on the postal envelop has also been obtained by Decree Holder from post man. No summons were sent at the address of the suit premises which shows malafide of the Decree Holder. Report on summons for 24.3.2011 were contradictory in as much as report on ordinary process was that premises were lying locked whereas envelop at the address of residential premises was " ISS PATE PE ISS NAAM KA NAHI REHTA". For the next date i.e. 23.4.2011 the report was "MOKE PAR POOCHA TO PAROSI NE BATAYA ISS NAAM KA KOI NAHIN HAIN. CHASPA". No photograph was taken for affixation nor any witness was taken. The application was supported by affidavit of the appellant.
5. The Decree holder filed a reply raising preliminary objection that the appellant wanted to retain the premises without paying rent. Demand notice sent by him before RCT no. 53/12 4 of 9 5 filing the petition was duly served. In execution the Bailiff reported on 24.8.2011 that JD slipped away after coming to know of the eviction order. Thus he has wrongly contended that he came to know of the eviction order on 9.3.2012.
6. After going through the material on record the Ld. ARC dismissed the application. He referred to decision in Indu Bhushan Vs Munna Lal and another 2007 III AD (SC) 634 to make out that if process sent by ordinary process and post are received back with the report of refusal, it is sufficient service.
7. I have gone through the material on record and heard the arguments. To my mind the Ld. ARC ought to have recorded the evidence of the parties to find out whether the report of refusal of process server and post man were right or procured. Cross examination would have revealed how far the witness could stand. To decide application u/o 9 R 13 CPC on the basis of pleading alone is not sufficient. Eviction order is a serious matter and it was not proper to pass the ex-parte order in haste on the RCT no. 53/12 5 of 9 6 first date.
8. The counsel for the appellant relied upon Doss and another Vs Vamanan 2009 (5) Recent Civil Reports 67 in which it was held that if process server is not examined, ex-parte decree is liable to be set-aside. Examination of process server u/o 5 R 9 CPC is mandatory and not directory. Accepting service of summons merely by verifying affidavit of process server, is not mandatory for court. The same is based upon decision of Hon'ble Supreme Court in Sushil Kumar Sabharwal Vs Gurpreet Singh (2002) 5 SCC 377 in which it was held that when defendant alleges on oath non service of summons but process server states on oath that he served the summons, ordinarily court should believe the defendant's statement.
9. The counsel for the appellant relied upon Sukhdev Singh Vs Moahorth Singh and others 2009 (1) Rent Control Reporter 130 in which the ex-parte eviction order was set-aside with the observations that a tenant cannot be evicted without affording reasonable opportunity to RCT no. 53/12 6 of 9 7 defend his case.
10. It is astonishing that the report of refusal by process server for the very first date was witnessed by none else but the Decree Holder. There is no reason why the same was not got witnessed from independent neighbourers. No prudent tenant would allow an eviction order to hang upon his head in this manner. If he had refused, he would have watched the proceeding and immediately stepped in on coming to know that he had been proceeded ex-parte.
11. There is no reason why the summons were not sent at the address of the suit premises and why the Decree Holder felt satisfied by getting the summons issued only at the residential address of the tenant.
12. Issue of notice at the second stage after allowing the petition was not necessary. So report thereupon are irrelevant. In any event to direct in the main eviction order itself that in case the appellant did not meet or refuse to receive, he should be served by affixation again shows the haste with which the Ld. ARC wanted to proceed. He should have waited for the reports to come and then pass RCT no. 53/12 7 of 9 8 the necessary order.
13. The facts of Indu Bhushan Vs Munna Lal and another are altogether different. In that case suit for specific performance was dismissed by the Trial Court. First appeal was allowed ex-parte and application to set- aside the ex-parte decree was rejected by the first appellate court as well as by Hon'ble High Court. The same was maintained in the Hon'ble Supreme Court. In para 5 of the order it has been observed that the evidence of the process server clearly established that the notice had been served. In the instant case, as has been discussed above no opportunity of evidence was given to either party for finding out whether the reports of refusal were correct or not.
14. The counsel for the DH produced copy of report of the bailiff in execution to make out that the appellant is habitual of refusing the process. Instead of being persuaded by the said report I am inclined to dis-believe the Decree Holder. The report shows that the Decree Holder is bent upon in obtaining the report of refusal RCT no. 53/12 8 of 9 9 after refusal. What is more strange is that as per said report Decree Holder called the police at the spot without any order of police aid from court. This shows how manipulative the Decree Holder is.
15. To sum up I find that the appellant was not served with summons of the eviction petition. Consequently impugned order is not sustainable. The appeal is accepted. Impugned order as well as eviction order are set-aside. The case is remanded back to the Ld. ARC to decide the same on merits after giving an opportunity to appellant to file written statement and proceed further in accordance with law. Parties are directed to appear before Ld. Trial Court on 17.10.2012. Trial Court record be sent back along with the copy of this order. File be consigned to Record Room.
Announced in the open court
on 10th October, 2012. (O.P. GUPTA)
DJ&ASJ-In-Charge(West)/ARCT
Delhi
RCT no. 53/12 9 of 9