Punjab-Haryana High Court
Bal Kishan And Ors. vs Tara Chand Nuniwala Dharmath Trust ... on 19 May, 2005
Equivalent citations: (2005)141PLR171, 2005 A I H C 3972, (2005) 3 CIVILCOURTC 278, (2005) 3 PUN LR 171, (2005) 2 RENCR 176, (2005) 3 RECCIVR 568
JUDGMENT M.M. Kumar, J.
1. There looks to be a section of tenants, which seems to think that by not paying rent, they can force the landlord to approach the Court for recovery of rent and then allow the proceedings before the Court to go ex parte by dis-appearance during the course of proceedings or by non-appearance. The present case is an illustration of the afore-mentioned syndrome, which has been observed in a class of cases. It is a such like tenant, who has approached this Court under Section 15(6) of Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity 'the Act') challenging order dated 17.3.2005 passed by the Rent Controller dismissing their application under Order 9 Rule 13 of the Civil Procedure Code (for brevity 'the Code') for setting aside exparte order of ejectment dated 13.4.1997.
2. It would be necessary to refer to skeleton facts in order to put the controversy in its proper perspective. The landlord-respondent field rent petition No. 101-RT-1996 instituted on 13.6.1994/15.4.1996 against the tenant-petitioner under Section 13 of the Act, seeking ejectment of the tenant-petitioner from a room fully detailed in the head note of the petition, inter alia, on the plea that the tenant-petitioner had failed to pay the rent @ Rs. 100/- per month after 31.5.1993. The rent claimed was for the period from 1.6.1993 to 31.5.1994 amounting to Rs. 1200/- along with the house tax, interest and costs. Then the tenant-petitioner was sought to be served on his last known address. His family members had refused to divulge his address as is evident from endorsement on the registered cover available on the file of the rent petition. Thereafter, the Rent Controller allowed the service by publication under Order 5 Rule 20 of the Code and accordingly, notice was published in "Dainik Mewat" for 24.8.1996. Despite publication of notice, none came present and the tenant-petitioner was proceeded ex parte. The landlord-respondent in support of his case produced overwhelming evidence to show that the rate of rent was Rs. 100/- per month and the rent with effect from 1.6.1993 to 31.5.1994 amount to Rs. 1,200/- was due against the tenant-petitioner on the day of filing the rent petition. It was further held that no subsequent rent had been paid by the tenant-petitioner. On the basis of ex parte evidence produced by the landlord-respondent, the Rent Controller recorded categorical finding in his order dated 30.4.1997. The concluding part of the aforementioned order reads as under:-
"In this instant case as the respondent has not come present to contest the suit, so it prima-facie indicates that he is not paying the rent to the petitioner intentionally-Then as PW-1 and PW-2 have stated that a rent w.e.f. 1.6.1993 to 31.5.1994 amounting to Rs. 1,200/- was due against the respondent on the day of filing of the present rent petition and no subsequent rent had been paid by the respondent, so in such circumstances the rent petition is hereby accepted ex parte alongwith costs of the petition. Consequently the respondent is hereby directed to vacate the room in question within 60 days from today failing which the petitioner would be entitled to get the possession of the disputed room after filing execution petition in the Court. Memo of cost be prepared accordingly and file be consigned to the record room."
3. When the order dated 30.4.1997 was sought to be executed, the tenant-petitioner filed an application under Order 9 Rule 13 read with Section 151 of the Code on 18.8.2000 in which prayer was made for setting aside the ex parte ejectment order. It was claimed that the tenant-petitioner had no knowledge of the filing of the ejectment petition as he was never served neither they came to know about ex parte order dated 24.8.1996. The tenant-petitioner asserted that the ejectment order has been passed on the basis of service presumed by publication of notice in the newspaper "Dainik Mewat" Gurgaon, whereas the tenant-petitioner was working as Munim in the Firm Mohar Singh Daulat Ram in village Ram Nagar, District Nainital. It is claimed that the newspaper "Dainik Mewat" had no circulation in that area of Nainital. It was further claimed that no Munadi nor arty affixation was made on the house of the tenant-petitioner and the report from the postman on the registered cover has been obtained in collusion by the landlord-respondent.
4. The application was contested by the landlord by specifically denying the allegation of collusion and other assertions by the tenant petitioner. It was asserted that the tenant-petitioner was aware of the ejectment, right from the very beginning.
5. The Rent Controller framed issues as to whether the ex parte order of ejectment dated 30.4.1997 was liable to be set aside and whether the application was barred by time.
6. After recording evidence on both the issues, the Rent Controller concluded that there was no evidence on record to show that the tenant was not residing at Narnaul or he was residing at village Ram Nagar, District Nainital. The view of the Rent Controller rejecting the aforementioned plea of the tenant-petitioner, based on the judgment of this Court in the case of Kuldeep Rai v. Sharan Singh, I.L.R. (1989)2 P&H 175, reads as under:
"The perusal of the evidence of the parties shows that there is no cogent or probable evidence to bring home the fact that the tenant was not residing at Narnaul and he was residing at Ram Nagar in U.P. There is bald statement of AW-2. His self serving statement does not cut any ice. Applicant should have produced some evidence that he was in fact working as Munim with some firm. The documentary evidence in this connection would have clinched the issued. The R.C. available on the summoned file shows that Ved Parkash was serving somewhere and his family members had refused to divulge his address. This fact shows that they had the knowledge about the pendency of the eviction petition. Out of the three persons residing in the house only one has stated that the postman did not bother him to know the address of his father. Probably in the absence of AW-2. other family members might have refused to divulge the address as alleged. Report on summons dated 6.9.1994 shows that Ved Parkash was working as Munim somewhere. If Ved Parkash was working as a Munim and his family members refused to divulge the identity, it is simply not understandable as to what option was left with the landlord to effect service upon the tenant except by way of publication. After all the landlord could not be expected take a dream in this. In the circumstances of the case, the Court was also helpless and court had also only one option i.e. of issuing publication. It was held in the case of Kuldeep Rai (supra) that it is obligatory on the part of the petitioner to prove that it is that newspapers through which the substituted service was ordered was in daily circulation in the locality in which the defendant was last known to have actually and voluntarily resided, carried on business or worked for personal gain. The last known address of the tenant was that of Narnaul. Thus, nothing can be said to be wrong with the publication effected in the newspaper. It is not the case of the applicant that newspaper "Dainik Mewat" has no circulation in the area of Narnaul. It was held by the Hon'ble Apex Court in the case of Mst. Bhabai v. Parmanand, A.I.R. 1997 S.C. 1919, that refusal to accept notice from the Process Server warrants passing of ex parte decree when the R.C. was not taken by the family members and also the address of Ved Parkash was not disclosed to the postman, it almost amounted to refusal to accept. It was held by the Hon'ble Apex Court in 2002(3) R.C.R. Civil page 431 S.C. and in the case of Baldev Singh v. Jeevan Kumar Pathak, 2004(4) R.C.R. Civil 719, that the non supply of copy of plaint to the defendant was no ground to set aside the ex parte order. The non mention of substance of plaint in the publication can be at the best deemed to be non supply of copy of plaint.":
7. On the issue of limitation also, the Rent Controller found that the tenant had the knowledge since from the beginning and, therefore, the petition for setting aside ex parte order dated 30.4.1997 could not be regarded within limitation. The observation in this regard reads as under: -
"In view of the findings of this Court that the tenant had the knowledge since the very beginning about the pendency of the eviction petition, the application for setting aside the ex parte order of ejectment dated 30.4.1997 cannot be said to be within limitation. Therefore, this issue is decided in favour of the respondent and against the applicant."
8. When the case came up for consideration before this Court on 24.5.2005, learned counsel for the petitioner was asked to produce evidence furnishing the proof of payment of rent up-to-date. Thereafter, the tenant-petitioner produced the receipt to show that a sum of Rs. 4,800/- was sought to be paid @ Rs. 100/- per month with effect from 1.5.2001 to 30.4.2005 by money order which was refused and not accepted by the landlord-respondent. The aforementioned amount was sought to be sent by money order and the refusal report has been given by the postal authority, which has been appended as Annexure-A. It was further asserted that the tenant-petitioner had deposited a sum of Rs. 2,500/- on 28.5.2001 vide challan No. 19351 towards rent of the demised premises till 30.4.2001. It is pertinent to mention that ejectment of the tenant-petitioner was ordered on the ground that the tenant-petitioner had failed to pay rent with effect from 1.6.1993 to 31.5.1994. No evidence was produced on the record that the rent from 1.6.1993 to 1999 stood paid. So it shows that the tenant-petitioner was still indulging in a game of hide and seek, which could not be approved by any judicial Forum.
9. Mr. Jaswant Jain, learned counsel for the tenant-petitioner has argued that it is mandatory for any Court to record satisfaction that it was not possible to serve the tenant-petitioner in the ordinary course. It is only after recording such a satisfaction that the Trial Court could have proceeded against the tenant-petitioner under Order 5 Rule 20 of the code by directing service of summons by publication. In support of his submission, learned counsel has placed reliance on a judgment of this case in the case of Subedar Amar Singh v. Avtar Singh, (2003-3) ??? P.L.R. 562. He has also relied upon a judgment of the Supreme Court in the case of Yallawva v. Shantavva, . Referring to the facts of the present case, learned counsel has submitted that the Rent Controller has neither recorded any such satisfaction nor it could have been presumed that the sons of the tenant-petitioner had refused to divulge the address of the tenant-petitioner, who in fact, was working at village Ram Nagar in Nainital District at the relevant time. It is claimed that the Court was under obligation to serve the tenant-petitioner at his address or publish the notice in a newspaper, which has circulation in the area of Nainital.
10. After hearing the learned counsel and perusing the impugned order as well as the order of ejectment dated 30.4.1997, I am of the considered view that there is no merit in this petition. The Rent Controller has categorically recorded the finding that the tenant-petitioner wanted to avoid service. So with that object in view, the Rent controller had ordered substituted service by invoking the provisions of Order 5 Rule 20 of the Code. Moreover, the Rent Controller has recorded the finding that there was ho cogent or probable evidence to conclude that the tenant-petitioner was not residing at Narnaul or that he was residing at village Ram Nagar at Nainital District. The bald statement made by AW-2. the son of the tenant-petitioner and self serving statement of the tenant-petitioner have not been considered sufficient. It is because of the fact that proving by documentary evidence the fact of working as Munim by the tenant-petitioner with some Firm in Ram Nagar was absolutely easy and simple affair. He could have produced some evidence from the Firm showing the payment of salary to him. The report on the summons further shows that the tenant-petitioner was working somewhere as Munim but his address was not divulged by his son. In the case of the report of the postal authority, there was no option left with the Court except to serve the present petitioner by publication of a notice in the newspaper. It has been held by the Supreme Court in Mst. Bhabai's case A.I.R. 1997 S.C. 1919 (supra). on which reliance has been placed by the learned counsel for the petitioner that the refusal to accept of notice from the Process Server, would justify passing of an ex parte decree. When the adult members of the family, who were available to accept notice had refused to accept service and also failed to divulge the address of the tenant-petitioner, then it amounted to refusal of service. Even otherwise, the application filed under Order 9 Rule 13 of the Code has been considered to be time barred.
11. Even otherwise, the bona fide of the tenant-petitioner are doubtful because despite the time given on 24.5.2005 to prove the payment of rent up-to-date, no receipt was produced showing that the rent was paid for the period w.e.f. 1.6.1993 to 31.5.1994 and thereafter. All that has been produced before me is a receipt of Rs. 2,500/- which amount has been deposited in the treasury on 28.5.2001 and the receipt of Rs. 4,800/-with effect from 1.5.2001 to 30.4.2005. The remaining amount of Rs. 2,500/- for 25 months would only show that the tenant-petitioner has paid the rent from 1.3.1999 to 30.4.2001. However, nothing has been proved on record showing the payment of rent from 1.6.1993 to 31.1.1999. The tenant-petitioner is labouring under misconception that the process of law can be misused for an ulterior motive. The bona fide of the tenant-petitioners have not been established. He wishes to continue in possession of the demised premises without payment of rent, which is impossible to accept.
12. The reliance on the judgment of the Supreme Court in Yallawwa's case (supra) of the learned counsel for the tenant-petitioner does not advance the case of the tenant-petitioner because in that case the view taken by the Supreme Court is that substituted service should not be allowed in a mechanical manner. Such is not the situation in the present case. There is a report of the postal authority showing that the tenant-petitioner was working as Munim elsewhere and the only way left to serve the tenant-petitioner was to serve him by publication of a notice in the newspaper in the area of his last known address. Even the adult members of his family had refused to divulge his address, which would amount to refusal of service. The judgment of this Court in the Subedar Amar Singh 's case (supra) would also not be applicable to the facts of the present case. In that case substituted service was ordered when the address on which the defendant was sought to be served was found to be incomplete. There could not have any satisfaction of the Court that the summons sought to be served on the defendant were defective. It was in those circumstances that invocation of substituted service on the defendant was considered illegal and improper.
For the reasons stated above, this petition fails and the same is dismissed with costs.