Allahabad High Court
Subhash Chandra Chaturvedi vs Ivth Addl.Session ... on 28 September, 2022
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW) Reserved on 12.05.2022 Delivered on 28.09.2022 AFR Case :- MATTERS UNDER ARTICLE 227 No. - 34234 of 2019 Petitioner :- Subhash Chandra Chaturvedi Respondent :- Ivth Addl.Session Judge/Spl.Judge/E.C. Act Lko. And Ors. Counsel for Petitioner :- Ram Kumar Srivastava,Mohammad Aslam Khan,Rajeev Singh Counsel for Respondent :- Gaurav Tripathi,Manoj Kumar,Sridhar Awasthi Hon'ble Mrs. Sangeeta Chandra,J.
1. This petition under Article 227 has been filed challenging the order dated 22 May 2006 which is an ex-parte decree in Regular Suit No.294 of 2013: Smt. Shashi Mishra and others versus Subhash Chandra Chaturvedi, and also the Order passed on application under Order IX Rule 13 dated 27.05.2009 rejecting the same, and the order passed in Appeal thereafter dated 27.11.2019; with a further prayer directing the Trial Court not to proceed in Execution Case No. 15/2007.
2. It is the case of the petitioner in his petition that his father was residing in Khasra No. 2188/2/3 Village Kanausi by raising a hut over it. Later on the petitioner built a two room house in 1986 and when the land came under Nagar Nigam it was allotted House No. 561/234 New Sindhu Nagar, P.S. Krishnanagar, Lucknow and he has been paying house tax to the Nagar Nigam since August 1986. One Rajendra Malviya filed Regular Suit No.49/1994 against Om Prakash Mishra the predecessor in interest of the private respondents, for possession and demolition, alleging therein that land of Khasra No. 2188/2/3 Village Kanausi belonged to him, and that Om Prakash Mishra had forcibly built his house over it. During the pendency of the Suit Rajendra Malviya executed a sale deed of the land in dispute in favour of Om Prakash Mishra on 09.11.1995. Consequently, the Suit was dismissed on 06.02.2009.
3. Om Prakash Mishra constructed a house adjacent to the house of the petitioner and the Nagar Nigam allotted House No. 561/232 in New Sindhu Nagar, PS Krishna Nagar, Lucknow. Om Prakash Mishra and others started creating disturbance in the peaceful possession of the petitioner over his House No. 561/234 and therefore the petitioner filed Regular Suit No. 144/1999 in the Court of Civil Judge (Havali) Lucknow. When Om Prakash Mishra could not succeed in his design, Shashi Misra his daughter in law and his sons filed Regular Suit No. 294/2003 praying for a decree of eviction and damages to the tune of Rs.32,000/- with interest on 28.07.2003, in the Court of Civil Judge (Senior Division) Malihabad, Lucknow. In the said Suit the petitioner was arrayed as a defendant and a wrong house number was mentioned namely House No. 561/232 - A , New Sindhu Nagar. The opposite parties managed to get an ex-parte decree on 22.05.2006 on the ground that summons were served on the defendant through publication and he had not appeared nor filed his written statement.
4. On coming to know of the ex-parte decree the petitioner filed paper number 60 C Application under Order IX Rule 13 CPC along with affidavit for setting aside ex parte decree dated 22.05.2006. In the affidavit the petitioner stated that he was the owner of House No. 561/234 New Sindhu Nagar, Lucknow and that the Respondents with a view to usurp the house had mentioned the wrong address and no service of summons was affected upon him. The petitioner had never refused to take notice/summons and if there was any evidence of receiving such notice the same was forged. The newspaper in which allegedly the notice was published was also not circulated in the area he resided.
5. The Learned Trial Court rejected the application on the ground that knowledge of the Suit was derived by the petitioner through another Suit and on such presumption treated notice to be served on the petitioner.
6. It has been submitted that Rule 17, Rule 19 -A and Rule 20 of Order V CPC were violated.
7. Against the order 27.05.2009 the petitioner preferred Miscellaneous Civil Appeal No. 81 of 2009: Subhash Chandra Chaturvedi versus Shashi Misra and others, in the Court of District Judge which was also rejected on 7.11.2009 by the Appellate Court. The Appellate Court observed that under Proviso to Order IX Rule 13 C.P.C., since the petitioner had knowledge about the pendency of Regular Suit No. 294 of 2003 in the Court of Civil Judge (Senior Division), Malihabad, Lucknow, the ex-parte decree could not be set aside even on the ground of any irregularity in the service of summons. The petitioner could not show any title to the property in dispute. Moreover, the Petitioner was still residing in House No. 561/232A and not in House No.561/234.
8. In the Short Counter Affidavit filed by the Opposite Parties No. 2 to 7, it is the case of the private respondents that Om Prakash Misra the respondent no. 6, and the predecessor in interest of all the other private respondents, had constructed a house adjacent to the property of Malviyas and it was numbered 561/232, New Sindhu Nagar, and he entered into negotiations with Rajendra Malviya for transfer of 3200 ft.² of Khasra Plot No.2188/ 2/3 of land towards the front of house constructed by Om Prakash Misra. Om Prakash Mishra had already been in possession of such part of land and had constructed two rooms, one tin shed covered kitchen, one small bathroom and one small latrine on the said land belonging to the Malviyas. Rajendra Malviya however filed a Suit for Declaration, Demolition and Injunction before the Court of Munsif Lucknow namely R.S. no. 81/1994 against Om Prakash Mishra in respect of such land. During pendency of the said suit the plaintiff, Rajendra Malviya, approached Om Prakash Mishra for settlement of the matter and obtained permission from the Court to transfer 3200 ft.² of land in favour of Om Prakash Mishra by executing a sale deed in his favour. The Court of X Addl District Judge allowed such Application on 20.05.1995, in MCA No. 81/1994. The Sale deed was executed on 04.11.1995 for 3200 ft.² of land, part of Khasra No. 2188/2/3 in Village Kanausi which was already in occupation of Om Prakash Mishra since 1984 and on which he had raised constructions. There were certain mistakes / inaccuracies in the Sale deed dated 04.11.1995 and a Supplementary Sale deed dated 19.09.1996 was executed by Shri Rajendra Malviya later on. The constructions made on such 3200 ft.² of land were assessed by the Nagar Nigam Lucknow on 10.06.1996 and given New No. 561/232-A. The answering respondents have been depositing House Tax and other taxes as required by the Nagar Nigam with regard to House No. 561/232 and House No. 561/232A.
9. It has been further stated that the petitioner is a distant relative of the private respondents and in the 1980s he had approached the Respondent No.6 for a place to live. Initially he was accommodated with the private respondents in their own House No. 561/232. Later on Om Prakash Mishra had constructed the two-room set on part of Khasra 2188/2/3 belonging to Malviyas and the petitioner was given license to live in the said premises. The petitioner in order to usurp the property of the answering Respondents had filed Regular Suit No. 144 of 1999 claiming to be the owner in possession of House No. 561/234, New Sindhu Nagar, Lucknow and praying for Permanent Injunction to restrain Om Prakash Mishra the defendant from dispossessing the petitioner.
10. A Written Statement was filed by Om Prakash Mishra to the effect that the plaintitff was living as a licensee in the house of Om Prakash Mishra and in paragraph 10 it was categorically mentioned that the petitioner had no title whereas the sons of Om Prakash Mishra had title and had filed the suit for possession against the plaintiff in the court of Civil Judge, Malihabad, Lucknow as a Regular Suit No. 294/2003 which was fixed for hearing on 08.08.2003. A Replication was filed by the plaintiff/ petitioner where in paragraph 5 he had admitted to having knowledge of such Suit for eviction being filed against him and pending in the Court of Civil Judge, Malihabad Lucknow. Later on the petitioner moved an application for withdrawal of Regular Suit No. 144 of 1999, and by an order dated 16.11.2017 the Court of Additional Civil Judge (Senior Division) Lucknow, allowed such application with special cost of Rs.10,000. Om Prakash Mishra had revoked the license of the plaintiff/ petitioner but the petitioner failed to vacate the house and Smt. Shashi Misra widow of Vimal Kishore Mishra along with other sons of late Om Prakash Mishra had filed the Suit for eviction and in the Plaint in Regular Suit No. 294 of 2003 in paragraph 16 a mention was made of Regular Suit No. 144 of 1999 being filed by the petitioner against them.
11. In Regular Suit No. 294 of 2003 the Trial Court passed an order on 28.07.2003 for registration of the suit and fixed the date of 24.09.2003 for filing of written statement and the date of 01.10.2003 for framing of issues. Summons were issued. On 01.10.2003 the plaintiffs were directed to take steps both ways within seven days. The Process Server had tried to serve summons upon the petitioner on 19.10.2003. He was not available in the house. His wife read the summons and returned the same to the Process Server saying that she cannot accept it as her husband was not in the house. She refused to let the Process Server affix the summons on the main door of the house. The Process Server recorded these developments in the presence of two witnesses of the locality SarvaShri Shiv Shankar Shukla and Radheshyam Shukla. Thus summons were duly served under Order V Rule 15 CPC. A Copy of the report of the Process Server is annexed as C.A. 11 to the Short Counter Affidavit.
12. Even Notice by Registered Post was offered by the Postman to the family member of the petitioner who refused to take the envelope and the Postman returned the same with the endorsement "Lene Se Inkar kiya Preshak Ko wapas ho". A copy of the endorsement on the envelope written by the Postman is annexed as annexed C.A. 12 to the Short Counter Affidavit.
13. On 18.12.2003 the plaintiffs filed application under Order V Rule 20 C.P.C. numbered as paper No.C-19. The Court allowed the said application and directed steps to be taken for publication within seven days. It is the case of the private respondents that there was no option with the plaintiffs to select a newspaper. The office of the concerned court gets the summons published in a newspaper in a routine manner at the cost of the plaintiffs. Cost was deposited by the plaintiffs and the summons were accordingly published in the daily newspaper "Aaj ki report" published from Lucknow on 11.01.2004. It is a newspaper circulating in the locality of the petitioner.
By an order dated 17.02.2004 in Regular Suit No. 294 of 2003, the Trial Court treated the summons to be duly served upon the defendant through publication under Order V Rule 20 CPC, and directed the matter to proceed ex parte.
14. Thereafter the matter was heard and evidence taken ex parte, and decreed on 22.05.2006, directing the petitioner to vacate the property in dispute within two months and to hand over possession to the plaintiffs and to pay cost / damages of Rs.32,000/- for illegal occupation thereof along with interest at the rate of 8% till actual handing over of possession.
15. Being aggrieved by the ex-parte judgement and order dated 22.05.2006, the petitioner filed an application under Order IX Rule 13 C.P.C. on 26.07.2006 by saying that the summons were not served upon him. The answering respondents filed their objections on 04.11.2006 wherein mention was made of paragraph 10 of the Written Statement filed in Regular Suit No. 144 of 1999 and paragraph 5 of the Replication where the petitioner had admitted that he had knowledge of Regular Suit No. 294 of 2003 having been filed and being fixed for hearing on 08.08.2003 in the court of Civil Judge (Senior Division) Lucknow. The objections of the private respondents also relied upon the report of the Process Server paper No. D - 17 /1 and publication of summons in the newspaper on 11 January 2004.
16. It has been submitted that the petitioner had made manipulation in the record of Regular Suit No. 144 of 1999 pertaining to the Court of Civil Judge (Havali) Lucknow by interpolating the word "not" in paragraph 5 of the Replication and he applied for certified copy of the Replication on 10.10.2007 and filed the certified copy of the interpolated Replication in the Court of Trial judge through covering application dated 24.10.2007. However, even before such interpolation could be made the private respondents had already obtained a certified copy of the Replication on 13.07.2006. The private respondents filed their Objections on 29.10.2007 specifically mentioning manipulation made by the petitioner in the Replication.
17. The Court of Civil Judge (Senior Division) Malihabad, Lucknow rejected the application under Order IX Rule 13 CPC on 27.05.2009, by observing that the petitioner had knowledge of the pendency of Regular Suit No. 294 of 2003, through Written Statement filed by the answering respondents in Regular Suit No. 144 of 1999 as was admitted by the petitioner in the Replication filed in Regular Suit No. 144 of 1999. The Trial Court also categorically recorded at internal page 3 of the order that the counsel for the petitioner had made submissions that in paragraph 5 of the Replication the word "not" had been mentioned so as to buttress the point that he did not have knowledge of the pendency of Regular Suit No. 294 of 2003, but the Trial Court rejected such argument by saying that the petitioner had full knowledge about the pendency of Regular Suit No. 294 of 2003, but he chose wilfully not to participate in the proceedings which indicated gross negligence on his part.
18. In the Rejoinder Affidavit filed by the petitioner is is stated that he is the owner of House No.561/234 New Sindhu Nagar since 1981 which is built upon Gram Sabha land Khasra No.2193/3(sa) and not upon Khasra No.2188/2/3 Village Kanausi. The house was assessed for the first time on 21.08.1986 and he has been paying House Tax ever since. The respondents had sent notice of Regular Suit No.294 of 2003 at the wrong address mentioning the same as House No.561/232 -A. In fact House No.561/232 and House No.561/232 - A are both one and the same where the private respondents reside and therefore they were able to manage the report of the Process Server and the Postman. Since incorrect address of his house was shown it cannot be said that the petitioner was ever served in accordance with Order V CPC. Also, the publication in ''Aaj Ki Report' which is not a widely circulated newspaper in the area where the petitioner is residing did not comply with the provisions of Order V Rule 20 CPC.
19. It has also been stated that Rajendra Malviya had filed Suit for Declaration, Demarcation and Injunction against Daya Shankar Agnihotri and Om Prakash Mishra in respect of 3200 Sqft. of land of Khasra No.2188/2/3 Village Kanausi in collusion with the defendants, and the Regular Suit No.49 of 1994 has been dismissed by the Civil Judge (Junior Division), South, Lucknow on 06.02.2009 as Rajendra Malviya failed to prove his ownership over the land in dispute. In case Rajendra Malviya had no ownership over the land in dispute, then subsequent purchaser that is the private Respondent Nos.2 to 7 also have no right. The house of the petitioner exists over Gram Sabha Land No.2193/3-(sa) and the private respondents are trying to dispossess the petitioner in the garb of sale deed of land Khasra No.2188/2/3.
20. It has also been mentioned in Paragraph-10 of the Rejoinder that when the private respondents had filed Caveat Application to oppose the present petition they had shown House No. 561/234 New Sindhu Nagar, as the address of the petitioner which makes it evident that the private respondents know the correct address of the petitioner and had deliberately mentioned incorrect address in Regular Suit No.294 of 2003 so that notice could not be served upon the petitioner and the petitioner was unable to oppose the said suit which was decreed ex parte.
21. In the Supplementary Counter Affidavit filed by the private respondents it has been mentioned that the petitioner has failed to file any copy of any Sale Deed or Title Deed to indicate the ownership of House No.561/234. In the Khatauni of 1383-1388 Fasli of Khasra No.2193/3-(sa) there is no mention of the petitioners' name as the land belongs to the Gram Sabha/Nagar Nigam. Khasra No.2193/3 - (sa) has no concern with the dispute as the house in dispute is situated on Khasra No.2188/2/3. The petitioner had fraudulently shown an incorrect House Number in the self assessment of House tax and this fact has been found in the enquiry made by the Nagar Nigam Lucknow on the complaint made by the private respondents. It has come out in the proceedings initiated by Nagar Nigam Lucknow that there is no House No.561/234. In fact it is House No. 561/232 where the private respondents reside and House No.561/232-A, where the petitioner resides. House No.561/232 has been given a new number later on by the Nagar Nigam as House No.561/389, which is recorded in the name of sons of Om Prakash Mishra. The petitioner is still residing in House No. 561/232-A, belonging to the private respondents.
22. In the Supplementary Rejoinder Affidavit filed by the petitioner on 27.01.2020, the facts as mentioned in the Rejoinder Affidavit earlier have been reitereated and it has been stated that the house of the petitioner is situated on Gram Sabha Land 2193/3-(sa) in Village Kanausi and was assessed in the year 1986 while the so-called Sale Deed of land purchased from Malviya brothers by the private respondents is of the year 1995 for part of Plot No. 2188/2/3 at Kanausi . It is clear from the same that the property purchased by the Respondents is some other property and has no concern with the house of the petitioner which is numbered as 561/234. True copies of House Tax bills of various years of House No. 561/234 in the name of Subhash Chandra Chaturvedi have been filed as Annexures to the Supplementary Rejoinder Affidavit.
23. The parties have filed second supplementary counter affidvait and second supplementary rejoinder affidavit, but this Court finds it unnecessary to refer to the same as they merely reiterate whatever has been said in their pleadings earlier.
24. It has been argued by the learned Senior Counsel appearing for the petitioner that the notice that was published in newspaper "Aaj ki Report" cannot be said to be a proper notice as it relates to date of filing objections on the application for Interim Injunction in Regular Suit No. 294 of 2003 as 10.02.2004, and date of disposal of such objections as 17.02.2004, and only mentioned that in case of failure to appear and file Objections, the application for Interim Injunction shall be heard and decided ex parte.
25. It has been argued by Sri Mohammed Arif Khan that the newspaper Aaj ki Report is an evening newspaper which is not known to be circulated in the locality where the disputed house is situated, hence it cannot be said that due compliance had been made of Order V Rule 20. He has referred to C.A. 11 which is the Process Server's Report which states that he had gone to the House No. 561/232-A, New Sindhu Nagar, where he found Usha Chaturvedi wife of the defendant/petitioner and tried to serve a copy of the application for stay upon her on 19.10.2003, but after reading the same it was returned by her saying that her husband was not in the house and when the Process Server tried to affix it she did not allow him to do so and such refusal was in the presence of two witnesses.
26. The Learned counsel for the petitioner has also placed reliance upon a Coordinate Bench decision in Lawyers Cooperative Housing Society Limited Agra Vs. Shri Krishna Grah Nirman Samiti Limited and others reported in 2002 (2) Allahabad Rent Cases 415; where the Coordinate Bench considered the provisions of Order V Rule 20 and Order IX Rule 13 and the Second Proviso added by way of amendment in 1976. The Court considered the fact that the Second Proviso to Rule 13 of Order IX C.P.C. was added by U.P. Amendment in C.P.C. by a notification dated 24.07.1976, prior to the C.P.C. Amendment Act of 1976, and it provided that "no such decree shall be set aside merely on the ground of irregularity in service of summons, if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiffs claim." This Court observed that when the Second Proviso was added by the Allahabad notification prior to the C.P.C. Amendment Act 1976 and the Second Proviso added by the C.P.C. Amendment Act 1976 are compared, it would appear that the words "or but for his wilful conduct would have known the date of hearing", occurring in the Allahabad Amendment were purposely omitted by the C.P.C. Amendment Act of 1976. In the Proviso added by the C.P.C. Amendment Act of 1976, the satisfaction of the Court should be that the defendant had the notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. The said words added in the newly added Second Proviso clearly indicates that the Court should satisfy itself that the defendant had notice of the date of hearing and sufficient time to appear and answer the plaintiff's claim. The Second Proviso added by the Allahabad Amendment prior to the 1976 Amendment Act only required satisfaction of the Court about the knowledge of the defendant regarding the pendency of the Suit and then the defendant had to satisfy that but for his wilful conduct, he could not have known the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim. It appeared that the absolute right conferred upon the defendant by the main Rule to have the ex-parte decree set aside in a case where the summons were not duly served, in the State of U.P., had been curtailed. According to the law prevailing in this State this right ceased to be available to the defendant where the defendant knew or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim. Accordingly, this Court in the case of Raja Ram Gupta Vs. Firm Jaiswal Iron and Steel Works and Others, 1980 AWC 110; had observed that in a case where summons have not been duly served upon the defendant and the exact date of hearing is not known to the defendant but he comes to know of the proceeding well in time and he can easily find out the date and put in appearance and answer the plaintiff's claim, but without any justification fails to take steps to find out the date of hearing, the only conclusion which can be drawn would be that but for his wilful conduct he would have known the date of hearing in sufficient time so as to enable him to appear and answer the plaintiff's claim. However, with the amendment in the C.P.C. notified by Act No. 104 of 1976 the legislative intent is clear.
27. The plaintiff had argued that the objection of the Applicant in a proceeding before the Assistant Housing Commissioner simply indicated that Suit No. 103 of 1983 between the parties in respect of the land in Suit was pending in the Court of Civil Judge Agra. There was nothing in the other side's objection to indicate about the date of hearing of the Suit. This showed that by receiving the above objection the defendant had "no notice of the date of hearing of the Suit". Moreover irregularity in the service of summons is a condition precedent for the applicability of the above Second Proviso to Order IX Rule 13. It meant that for the applicability of the Proviso it must be proved that there was service of summons, but the summons were not duly served. The Coordinate Bench observed that Irregularity is something different from illegality. Irregularity contemplates defective procedure and non-compliance of the prescribed formalities which cannot be of substantial nature. Illegality on the other hand connotes contravention of the Statute which may in some cases result in the action becoming void. Illegality contemplates an action forbidden by law while irregularity is mere defect in the procedure. If this basic difference in the two expressions is kept in mind the expression "irregularity" in the service of summons occurring in the Proviso added to Order IX Rule 13 would mean the defect in following the procedure prescribed for service of summons, such as, non-fixation of the copy of the summons at the outer door of the defendants' house in case of his refusing to take the summons. However, if the Court finds that the defendant was not served at all then it would be another case altogether. The Court observed that the newspaper "Aaj ka Hungama" in which the summons were allegedly published was not a daily newspaper, and had no circulation in the locality in which the defendant was last known to have actually and voluntarily resided or carried on business or personally worked for gain. As such, for taking the benefit of Rule 20 Subrule 1-A Order V C.P.C., the plaintiff had to prove that service by advertisement was affected in a daily newspaper. If the newspaper was not "daily newspaper" it was against the provisions of the above Rule and amounted to illegality in the service of summons. Therefore service by advertisement in the newspaper was not in accordance with the law and therefore illegal.
28. The Coordinate Bench of this Court had held that there was no service of summons on the defendant at all and it was not the case of irregularity in service of summons. Consequently, the Second Proviso added by the C.P.C. Amendment Act 1976 was not applicable to the case. The trial Court having found that there was no service at all was justified in allowing the application under Order IX Rule 13 C.P.C. and setting aside the ex parte decree.
29. The learned counsel for the petitioner has also placed reliance upon Smt. Vinod Rani Lamba and Another Vs. Baburam Yadav by a Coordinate Bench of this Court reported in 2017 (135) RD 427; where in almost in similar circumstances, an application under Order IX Rule 13 C.P.C. was rejected by the Trial Court. The petitioner filed Appeal which was also rejected by the Additional District Judge and then writ petition was filed in this Court challenging the two orders. The Court observed that it was admitted that there was no personal service of summons and service of summons had been effected through publication, which is a substituted service. Within the meaning of Explanation to Article 123 of the Limitation Act, it is not a due service. On the basis of publication, the presumption regarding service was made.
30. The learned counsel for the petitioner has also placed reliance upon a Coordinate Bench decision is Smt. Sudesh and Others Vs. Additional District Judge and Others, 2006 (1) ARC 387, where this Court observed that merely because in some other case against the husband of one of the petitioners, some mention of the pendency of the present Suit was made in a written statement, the same would not amount to sufficient service of summons on the petitioners and that the Trial Court and the Appellate Court had taken a very technical view of the matter. The endeavour of the Court of law should be to decide the case on merits after giving sufficient opportunity to the parties and hearing them.
31. The Counsel for the petitioner has also placed reliance upon G.P. Srivastava Vs. R K Raizada and others reported in 2000 (3) SCC 54, where the Supreme Court observed that an ex-parte decree passed against the defendant can be set aside upon satisfaction of the Court that the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the Suit was called on for hearing. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. It was observed that for the absence of a party in the case the other side can be compensated by adequate costs and on such other terms and conditions as were deemed proper by the Trial Court and the lis decided on merit.
32. Learned counsel for the petitioner has also placed reliance upon Ashraf Vs. Kailash Prasad and Another, 2016 (34) LCD 3096, where a Coordinate Bench of this Court observed that the Trial Court had erred in law in drawing a presumption of service merely on the basis of address mentioned in the carbon copy of the notice. The plaintiff had stated that notice upon the defendant had being served by registered post, a copy whereof was placed on record. Such copy showed only the name of the addressee and there was no address mentioned in the said receipt. Service of notice was denied by the defendant but the Court below had drawn a presumption on the basis that the letter was sent by Registered Post with the correct address mentioned on the Registered letter by the plaintiff. This Court observed that no doubt once registered letter has been sent which mentioned the correct address of the addressee, the Court will be entitled to draw a presumption regarding due service of that notice vide Illustration (E) and (F) of Section 114 of the Indian Evidence Act 1872; but the presumption of service of a letter sent by Registered Post can be drawn only when it is shown that the Registered letter contains a complete and correct address of the addressee, and unless this much is shown the question of presumption even in respect to a letter sent by Registered Post would not arise. Once the addressee denies the receipt/service of Registered letter the plaintiff has the onus to show that it was sent mentioning the correct and complete address of the addressee and actually served upon or received by the addressee or he refused to receive the same though sought to be served upon him by the postal agent. The Court observed that if a notice has been sent by the landlord by Registered Post and it is received back with an endorsement made by an official of the Post Office namely Postman that it was refused by the addressee, presumption of service upon the addressee shall be drawn unless the tenant proves that the letter was never offered to him by the Postman and endorsement made thereon is not correct. The tenant's mere denial would not be sufficient in such a case and he will have to prove his case by adducing relevant evidence. Such denial can be done by making a statement on affidavit and in such a case onus would then shift on the landlord to prove that refusal was by the tenant which he can show by summoning the Postman and adducing his oral evidence. However the Court observed that sometimes from the conduct of the tenant or other circumstances his denial even if on oath, can justifiably be disproved by the Court without having the Postman examined as was observed by the Supreme Court in the case of Anil Kumar Vs. Nanak Chandra Verma AIR 1990 Supreme Court 1215.
33. A Bench of three judges of the Supreme Court in Puwada Venkateswara Rao Vs. Chidamna Venkata Ramana AIR 1976 Supreme Court 869, had held that the presumption stood rebutted on its denial. In this case the petitioner had denied the service of summons or knowledge of the Suit, thus on denial, the presumption stood rebutted and burden shifted upon the plaintiff/ respondent to prove that the summons were served upon them but the plaintiff/ respondent could not lead any evidence in this respect. This judgement has been followed subsequently in a Rama Rao Vs. Raghunath Patnaik 2007 (68) ALR 464, State of West Bengal Vs. EITA India Ltd AIR 2003 Supreme Court 4126, VS Krishnan and others Vs. Messers Westfort High-Tech Hospital Limited 2008 (3) SCC 363, and M.S. Madhusudhanan and Another Vs. Kerala Kaumudi Private Limited and Others 2004 (9) SCC 204.
34. The learned counsel for the petitioner has also relied upon judgement rendered by the Supreme Court in Auto Cars Vs. Trimurti Cargo Movers (Private) Limited reported in 2018 (140) RD 411; where the Supreme Court considered Section 27 of the CPC which deals with issuance of summons to defendants. It requires summons to be issued to the defendants in the manner prescribed. It referred to the Appendix-B Process No.1 issued by the Trial Court and the Supreme Court observed that:-
"there is a specific column in the summons where "day, date, year and time" for the defendant''s appearance is required to be mentioned. The legislature while prescribing the format for summons in the CPC wished to enable the defendant to answer the suit filed against him/her on specific information being given to him. Under Order V Rule 20 (3) when service is affected by way of publication by the orders of the Court, the Court has to fix "time for appearance of the defendant", as the case may require. In our opinion this does not dispense with the requirement of mentioning the actual day, date, year and time for the defendant's appearance in the court, because it is prescribed in format........being a statutory requirement prescribed in law (Code) it cannot be said to be an empty formality. It is essentially meant for the benefit of the defendant because it enables the defendant to know the exact date, time and place to appear in the particular court, in answer to the suit filed by the plaintiff against him. If the specific day, date, year and time for the defendant's appearance in the court concerned is not mentioned in it the summons, though validly served on the defendant by any mode of service prescribed under Order V, it will not be possible for him/her to attend the court for want of any fixed date given for his/her appearance".
The Court observed in Paragraph 27 -
"27. The object behind sending the summons is essentially threefold - first, it is to apprise the defendant about the filing of case by the plaintiff against him; second, to serve the defendant with the copy of the plaint filed against him; and third, to inform the defendant about the actual day, date, year, time and the particular Court so that he is able to appear in the court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer".
35. The Court observed that the service of summons on the defendant without mentioning there in a specific day, date, year and time cannot be held as "summons duly served" on the defendants within the meaning of Order IX Rule 13 of the Code. In other words, such summons and the service affected pursuant thereto cannot be held to be in conformity with Section 27 read with the statutory format prescribed in Appendix-B (Process 1 and 1A) and Order V, Rule 20 (3) of the Code.
The Supreme Court further observed in paragraph 34 and 35 :-
"34. It is for this reason we are of the considered opinion that the appellant (Defendant No.1) was able to make out a ground contemplated under Order IX Rule 13 of the Code for setting aside the ex parte decree.
35. Once the appellant (Defendant No.1) is able to show that "Summons were not duly served on him "as prescribed under Section 27 read with Appendix-B (Process 1A) and Order V, Rule 20 (3) of the Code then it is one of the grounds for setting aside the ex parte decree under Order IX Rule 13 of the Code. In our view, the appellant (Defendant No.1) is able to make out the ground."
36. On the basis of aforesaid judgements rendered by this Court and Supreme Court, the learned counsel for the petitioner has argued that as is evident from the plaint itself, the House number of the petitioner had been wrongly mentioned. Since the House number had been wrongly mentioned the Process Server could not have approached the correct House for delivery of summons. The Process Server in his report has mentioned the name of the wife of the petitioner and also of two witnesses i.e. the neighbours of the petitioner belonging to the same locality but but such report has been managed by the respondents through extraneous means. It has also been argued that the alleged registered letter tried to be served upon the petitioner by the Postman cannot be said to be duly served even though repeated endorsements have been made thereon by the Postman that he had gone to the House of the defendant but he could not meet the defendant who had gone out on duty and that on one occasion there was a clear refusal to accept notice/summon, have also been managed. Since incorrect address was shown on the Registered letter it cannot be said that the petitioner was duly served.
37. It has also been argued by Shri Mohammed Arif Khan that the publication in a newspaper which is published in the evening and which is not widely circulated in the locality in which he resides does not conform to Order V Rule 20 of the C.P.C. Moreover, such notice was published only indicating the date time and place for appearance of the defendant for filing objections against the application for temporary injunction. Such publication cannot be said to have given definite information to the defendant to enable him to appear and plead his case before the court concerned. There was not only an Irregularity in service of notice but also an illegality which cannot be condoned and the Learned Trial Court as well as the appellate court failed to appreciate the difference between irregularity and illegality when they relied upon the Second Proviso to Order IX Rule 13 of the Code (as amended in the State of UP.).
38. It has also been argued by the learned counsel for the petitioner that the averments made in the counter affidavit by the respondents regarding the correct House number and whether it was 561/234 or 561/232 - A , could only be decided after the application for Condonation of Delay in filing the Recall application was allowed and the matter was heard on merits by giving proper opportunity of hearing to the defendant by the Trial Court. The Trial Court prejudged the whole issue when it observed that the applicant had no right to be heard as he could not produce any documentary evidence regarding the title of the House in dispute.
39. It has also been argued on the basis of paragraph 5 of the Replication that it is evident from the language used that the word ''not' was missed out and it was a typographical error which was corrected by hand and the sentence would not be complete or make sense at all without the addition of the word "not" and bare reading of Paragraph 5 of the replication would show that there was a denial of any notice having been received with regard to the pendency of Regular Suit No. 294 of 2013.
40. In response to the arguments made by Sri Mohd. Arif Khan, learned Senior Advocate, on merits of this case and on the law as stated hereinabove, the learned senior counsel for the respondent Sri Sudeep Seth has pointed out the limited jurisdiction that this Court exercises under Article 227 of the Constitution. He has referred to the Coordinate Bench decision in the case of Smt. Sahzavin Vs. Additional District Judge Allahabad, 2013 SCC online Allahabad 13500. This Court observed in a similar matter that when both the Courts below have recorded concurrent findings of fact, unless the findings are shown to be perverse or contrary to record resulting in grave injustice to the petitioner, the High Court exercising a restricted and narrow jurisdiction under Article 226/227 would not be justified in interfering with the same. Under Article 227 of the Constitution the scope of judicial review is limited only to remove manifest and patent errors of law and jurisdiction. The Court does not act as an Appellate Authority. It is the duty of the High Court to keep the inferior Courts and Tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner, but this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It is restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice where grave injustice would be done unless the High Court interferes.
41. The Supreme Court in the case of D.N. Banerjee Vs. PR Mukherjee, AIR 1953 SC 58; and in the case of Waryam Singh Vs. Amarnath AIR 1954 SC 215; and several other decisions rendered thereafter, were referred to by the Coordinate Bench to say that it is well settled that the power under Article 227 is one of judicial superintendence which cannot be used to upset conclusions of facts, however erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could have ever reached them. The Supreme Court in the case of Ajaib versus Sirhind Cooperative Marketing cum Processing Service Society Limited, observed that there is no justification for the High Court to substitute its view for the opinion of the Authorities /Courts below as the same is not permissible in proceedings under Article 226/227 of the Constitution. This Court cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support the findings or the findings are totally perverse. As long as they are based upon some material which is relevant for the purpose, no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken, the High Court cannot interfere. In Union of India versus Rajendra Prabhu, the Supreme Court held that the High Court in exercise of its extraordinary powers under Article 227 of the Constitution cannot reappreciate the evidence nor it can substitute its subjective opinion in place of the findings of the authorities below.
42. In Shalini Shyam Shetty Vs. Rajendra Shankar Patil 2010 (8) SCC 329, the Supreme Court said that the power of interference under Article 227 is to be kept to the minimum to ensure that the wheels of justice do not come to a halt and the fountain of justice remains pure and unpolluted. In order to maintain public confidence in the functioning of the Tribunal/ Courts subordinate to the High Court, it should be exercised only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority.
43. The learned counsel for the respondent has also placed reliance upon Garment Craft Vs. Prakash Chand Goel 2022 SCC Online Supreme Court 29 where the Supreme Court observed in paragraph 18 that the High Court while exercising supervisory jurisdiction does not act as a Court of First Appeal to re-appreciate, reweigh all the evidence or facts upon which the determination and the challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusions, for that of the inferior Court or Tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set aside grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The relief under Article 227 should be given sparingly and only to ensure that there is no miscarriage of justice.
44. The learned counsel for the Respondents has also placed reliance upon judgement of the Supreme Court rendered in Gurcharan Singh Vs. Sujit Singh 2014 (2) SCC 140, where it observed that if both the Courts below have placed reliance upon cogent facts, there is no reason to set aside such concurrent findings.
45. Shri Sudeep Seth Learned Senior Advocate has emphasised that this Court while sitting in limited jurisdiction under Article 227 of the Constitution cannot overturn findings of fact recorded by two learned Court's below unless they are found to be perverse. He has also pointed out that the petitioner has alleged that the Process Server's report and that of the Postman were obtained by the private respondents through collusion but has not submitted any evidence along with his application under Order IX Rule 13 CPC to say that such reports were false and fabricated. Once notice is sent on the correct address of the defendant and it is received back with the endorsement of either "not met" or "refused to receive" it shall be taken that notice has been duly served upon the defendant. The defendant has to prove that such notice was actually not served by getting the Postman or the Process Server examined in the witness box which was not done by the petitioner. No request for cross-examination of the Postman or of the Process Server was made to the Trial Court. It has also been argued that the petitioner has resorted to repeated misrepresentation and has interpolated the Court's record the reply submitted by him in his Replication and this Court sitting in Extraordinary jurisdiction must be strict in dealing with such unscrupulous litigants.
46. Learned counsel for the respondents has placed reliance upon Sunil Poddar Vs. Union Bank of India 2008 (2) SCC 326, where the Supreme Court was considering the Appeal arising in a case related to Recovery of Debts Due to Banks and Financial Institutions Act 1993. It observed that there are limited grounds to set aside an ex-parte decree. It observed that non-service of summons cannot be a ground where the defendant had notice of the date of hearing and sufficient time to appear and answer the claim. The learned counsel for the Respondents has placed reliance upon paragraph 16 to 23 where the Supreme Court had observed that once the bank had got the summons published in the newspaper, whether the appellants were subscribers of the said newspaper or had read it became irrelevant. "It is immaterial whether the appellants were subscribers of the said newspaper and whether they were reading it. Once a summons is published in the newspaper having wide circulation in the locality, it does not lie in the mouth of the person sought to be served that he was not aware of such publication as he was not reading the said newspaper." The Supreme Court considered Order IX Rule 13 as it was originally enacted in the C.P.C. Of 1908, and observed that under original Rule 13 of Order IX of the Code, when the decree had been passed ex parte against the defendant who satisfied the Court that summon was not duly served upon him, the Court was bound to set aside the decree. It was immaterial whether the defendant had knowledge about the pendency of the Suit or whether he was aware as to the date of hearing and he failed to appear before the Court. The Law Commission considered that aspect and the expression (enacted in the Code of 1908) and observed that under original Rule 13 of Order IX of the Code, when the decree had been passed ex parte against the defendant who satisfied the Court that summon was not duly served upon him, the Court was bound to set aside the decree. It was immaterial whether the defendant had knowledge about the pendency of the suit or whether he was aware as to the date of hearing and yet did not appear before the Court. The Law commission considered that aspect and the expression "Duly served" in its 27th Report and observed that "...under Order IX Rule 13 if the Court is satisfied either that the summons had not been served, or that the defendant was prevented by sufficient cause from appearing et cetera, the ex-parte decree should be set aside. The two branches of the Rule are distinctive and the defendant, whatever his position may be in respect of one branch, is entitled to the benefit of the other branch if he satisfies the Court that he has made good his contention in respect of the other branch. Now cases may arise where there has been a technical breach of the requirements of due service, though the defendant was aware of the institution of the Suit. It may well be, that the defendant had knowledge of the Suit in due time before the date fixed for hearing, and yet apparently he would succeed if there is a technical flaw. - - - at present the requirements of the Rules regarding service must be strictly complied with, and actual knowledge (of the defendant) is immaterial. There may not be many decisions which hold that even where there has not been due service, yet the decree can be maintained, if the defendant knew the date of hearing) - - - The matter was considered exhaustively by the Civil Justice Committee, which recommended a provision that a decree should not be set aside for mere irregularity. Local Amendments made by several High Courts (including Allahabad, Kerala, Madhya Pradesh, Madras and Orissa) have made a provision on the subject, though there are slight variations in the language adopted by each. Such a provision appears to be useful one, and has been adopted on the lines of the Madras amendment."
47. The Supreme Court in Sunil Poddar (supra) also referred to the Law Commissions 54th report which reiterated that the broad object in Amendment of Order IX Rule 13 is "to ensure that a decree shall not be set aside merely on the ground of irregularity in service, if the defendant had knowledge of the decree...".
48. The Supreme Court observed in Sunil Poddar (Supra) that accepting the recommendations of the Law commission Order IX Rule 13 was amended with effect from 01.02.1977, and the Proviso added now says that no Court shall set aside the 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 plaintiff's claim. The Supreme Court observed in paragraph 23 thus-
"it is therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order V of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintive. Once these two conditions are satisfied, an ex-parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff's claim, he cannot put forward the ground of nonservice of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order IX of the Code". - -
49. The learned Senior Counsel for the Respondents has placed reliance upon Parimal versus Veena @ Bharti 2011 (3) SCC 545; where the Supreme Court has referred to the Second Proviso added by way of amendment in Order IX Rule 13. It observed in paragraph 16 of its judgment that in order to determine the application under Order IX Rule 13 C.P.C. the test that has to be applied is "whether the defendant honestly and sincerely intended to remain present when the Suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the Court with a reasonable defence."
50. It considered the question of presumption of service by Registered Post and burden of proof and observed in paragraph 17 of Parimal Vs. Veena @ Bharti (Supra) that:-
"17. This Court after considering a large number of its earlier judgements in Greater Mohali Area Development Authority versus Manju Jain 2010 (9) SCC page 157; held that in view of the provisions of Section 114 illustration (F) of the Evidence Act 1872, and Section 27 of the General Clauses Act 1897, there is a presumption that the addressee has received the letter sent by Registered Post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Sunil Kumar Sambhu Dayal Gupta (Dr) Vs. State of Maharashtra 2010 (13) SCC 657."
It observed in paragraph 18 further:-
"In Gujarat Electricity Board Vs. Atmaram Sungamal Poshani 1989 (2) SCC 602; this Court has held as under:
"8. There is presumption of service of a letter sent under Registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the Registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service."
The provisions of section 101 of the Evidence Act provide that the burden of proof of the fact rests on the party who substantially asserts it, and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgement in its favour. Section 103 provides that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue."
51. The Supreme Court further observed that "...in case the matter does not fall within the four corners of Order IX Rule 13 C.P.C., The Court has no jurisdiction to set aside an ex parte decree. The manner in which the language of the Second Proviso to Order IX Rule 13 C.P.C. has been couched by the legislature makes it obligatory on the Appellate Court not to interfere with an ex-parte decree unless it meets the statutory requirement."
52. The learned counsel for the Respondents has also placed reliance upon State of Madhya Pradesh Vs. Heera Lal and Others 1996 (7) SCC 523, where the Supreme Court observed that if the notice is returned with the postal remarks "Not available in the house", "house locked" and "shop closed" it must be deemed that the notices have been served on the respondents.
53. The learned counsel for the respondents has placed reliance upon Rahul S Shah Vs. Jinendra Kumar Gandhi and others 2021 (6) SCC 418, where the Supreme Court observed that the remedies provided for preventing injustice are actually being misused to cause injustice, by preventing a timely implementation of the orders and execution of decrees. It has referred to several of its judgements where it recommended appropriate amendments in the Code of Civil Procedure to ensure that process of adjudication of a Suit be continuous from the stage of initiation to the stage of securing relief after execution proceedings. The Supreme Court in the aforementioned decision gave several directions in Para 42 and observed that the High Courts should amend and update all the Rules relating to execution of decrees made under the exercise of its power under Article 227, of the Constitution of India and Section 122 C.P.C. within one year of the date of its order, with an endeavour to expedite the process of execution with the use of information technology tools and until such time that the Rules are brought in existence the directions given by it in Para 42 would remain enforceable.
55. Having heard the learned counsel for the parties this court has gone through the ex- parte decree dated 22.05.2006 and the order passed on the application for Recall under Order IX Rule 13 dated 27.05.2009, and also the order dated 27.11.2019 passed in Appeal. All these orders have been challenged in this petition under Article 227 of the Constitution; a further prayer being made for directing the Trial Court not to proceed further in Execution Case No.15 of 2007 (Smt. Shashi Mishra versus Subhash Chandra), and for a direction to the Trial Court, the Civil Judge (Senior Division), Malihabad Lucknow to provide opportunity of filing written statement in Regular Suit No.294 of 2003 on deposit of cost as this Court finds appropriate by way of compensation to the plaintiff.
56. This Court finds it inappropriate to discuss the merits of The ex-parte decree as the petitioner has not yet challenged the same in First Appeal and any observations on the merits of the ex parte Decree by this court may prejudice the case of the petitioner in his challenge to the same as and when he files the Appeal. This Court shall only briefly discuss the facts as mentioned in the ex-parte decree in so far as they relate to service of notice of Regular Suit No.294 of 2003 upon the defendant.
57. In the decree dated 22.05.2006 the facts have been firstly narrated as mentioned in Short Counter Affidavit by the private respondents, thereafter the judgment refers to the defendant having been a distant relative of the Plaintiff No. 6 being given a license to live in House No.561/232-A in 1985. When the plaintiffs came to know of a suit being filed for Permanent Injunction by the defendant against them the license was revoked, the defendant had orally assured them that he had no intention to forcibly occupy the house in dispute but intended to vacate it in a matter of three years as by then he would certainly make arrangements for living somewhere else. However, even after a lapse of three years the defendant had not vacated the premises and the plaintiffs had orally requested him to vacate the House in question or else to pay Rs.2000 per month as damages. Since there was a temporary injunction in favour of the defendant in the Regular Suit No.144/99 filed by him against the plaintiffs he had no intention to vacate the premises in question and therefore the plaintiffs were compelled to file the Suit for Eviction and for Damages.
58. The Learned Trial Court at internal page 3 of its judgement refers to summons having been issued to the defendant through Registered Post which had returned with the endorsement of the defendant having refused to receive the same. Ultimately substituted service by way of publication was done, however the defendant did not appear nor filed written statement hence, on 17.02.2004 the court had decided to proceed ex parte. The Trial Court thereafter referred to documentary evidence filed along with the plaint including the permission granted by the Additional District Judge dated 20.05.1995 to the erstwhile owner to sell off a portion of Khasra No. 2188/2/3 admeasuring 3200 Sqft. and to the Plaintiff No.6 to raise construction thereon. The Trial Court thereafter referred to Registered Sale Deed dated 04.11.1995 and the Supplementary Sale Deed and extract of relevant Khatauni for the year 1409 to 1414 Fasli for village Kanausi, wherein the plaintiffs name had been recorded as Bhoomidhar with Transferable Rights and the assessment order for House tax for House No. 561/232-A, New Sindhu Nagar, Kanpur Road by Nagar Nigam Lucknow.
59. Having satisfied itself from documentary evidence that the plaintiffs were the owners of House No.561/232-A, as also on the basis of affidavit filed by Om Prakash Misra in support of the plaint, the Trial Court had decreed the suit as aforesaid.
60. In the order dated 27.05.2009 on the Recall application moved by the Petitioner the Learned Trial Court has referred to the contents of the application for Recall supported by affidavit. The application stated that the Applicant petitioner lived in House No.561/234 New Sindhu Nagar, Lucknow and the plaintiffs wished to usurp the house. The Applicant petitioner filed Regular Suit No.144/1994 before the Civil Judge (Junior Division), Havali, Lucknow, for permanent injunction against the plaintiffs. The Plaintiff No.6 was instrumental in getting his daughter-in-law to file Regular Suit No.294 of 2003 for Eviction and Damages fraudulently showing the wrong House Number namely House No.561/232-A, New Sindhu Nagar, as address of the applicant petitioner. No notice was ever served regarding Regular Suit No.294 of 2003 on the applicant petitioner either through Registered Post or through process server of the court as wrong House number was intentionally mentioned as address of the defendant in the said Suit.
61. Also, the newspaper in which publication was made of notice of said suit was not circulated in the locality in which the applicant petitioner lives and therefore he could not derive any knowledge in time to appear and answer the plaintiffs claim. The applicant petitioner came to know of the decree dated 23.05.2006 only on 03.7.2006 when a third person told him about some Suit having been filed in which a decree had been obtained by Sri Om Prakash Mishra and others against him.
62. The private respondents herein filed their objections the Recall Application and the Application for Condonation of Delay in which they stated that both notice through Registered Post and summons through Process Server were duly served. Also publication was made in a newspaper determined by the Trial Court itself. It was also stated that in Regular Suit No.144 of 1994 a written statement was filed in August, 2003 in which mention was made of pendency of Regular Suit No.294 of 2003. Replication was filed by the applicant petitioner in the said Suit No.144 of 1999 which showed that he had knowledge the pendency of Regular Suit No. 294 of 2003.
63. The applicant petitioner denied the objections and the Trial Court there after took into account documentary evidence filed along with application for Recall by the applicant petitioner and the objections filed to it by the private respondents. The Learned Trial Court referred to the Written Statement in Regular Suit No.144/999 filed as Paper number C 15-1, and also the certified copy of the Replication filed therein, Paper No.C 26/2-5; and after comparing the two came to the conclusion that without reading the contents of Paragraph 10 of the Written Statement which mentioned the pendency of Regular Suit No.294/2003, the answer given in the Replication in Paragraph-5 could not have been given. The Learned Trial Court referred to the two conditions mentioned in Order IX Rule 13 CPC wherein it was provided that the applicant must satisfy the Court that the Summons had not been served on the defendant, or that the defendant having been served could not appear to answer the plaintiffs claim for reasons beyond his control. Then it referred to the Proviso added by way of amendment in Order IX Rule 13 which clearly stated that in case the Court is satisfied that the defendant had knowledge of the date of hearing in the Suit and despite such knowledge failed to appear, the ex-parte decree would not be set aside only because there was irregularity in the service of summons. The Trial Court thereafter referred to the applicant petitioner's admission that a Written Statement was filed by the private respondents in Regular Suit No. 144 of 1999 and that it mentioned clearly in Paragraph-10 that the Suit No.294 of 2003 was pending in the court of Civil Judge (Senior Division), Malihabad, Lucknow. The Trial Court referred to Replication and also the fact that although the applicant petitioner may have stated therein that he had no knowledge of the Suit No.294 of 2003 because he had not been served notice; It was of little or no relevance because the very fact that mention had been made about its pendency in the Written Statement meant that he had sufficient knowledge of pendency of Regular Suit No.294 of 2003. The Learned Trial Court thereafter referred to judgement of the Supreme Court in the case of J. P. Srivastav Vs. R.K. Raizada reported in AIR 2000 Supreme Court 1221 where the Supreme Court had observed that ordinarily a liberal approach should be adopted while considering an application under Order IX Rule 13 but if the Court is convinced that the applicant had wilfully not attended the hearing of the case then such an application cannot be allowed. The Applicant has to prove before the court that his absence was not deliberate or malafide. The Trial Court had relied upon judgement rendered In 1981 AWC (Revenue) 45 Smt. Soora versus Mewalal rendered by the Allahabad High Court, and also 1977 AWC 528; wherein the very same observations had been made by the High Court that if the applicant had knowledge of pendency of suit and the date of hearing therein and wilfully did not appear in the same, then it should not recall the ex-parte decree. The Trial Court considered the record relating to Regular Suit No.294 of 2003 and the order passed therein on 17.02.2004, where service of notice on the defendant was found sufficient, and the court had directed to proceed ex parte. It therefore came to the conclusion that the applicant petitioner's reliance upon judgement rendered In Sudesh Versus Additional District Judge and Others reported in 2006 (1) ARC 387, and Lawyers Cooperative Housing Society Versus Krishna Grah Nirman Samiti reported in 2002 (2) ARC 415, was misconceived. The Trial Court therefore rejected the application in its order dated 27.05.2009.
64. In the Appeal filed against such order the applicant petitioner again reiterated his entire argument regarding wrong address of his house being mentioned in the notice and in the summons and that neither the Process Server nor the postman ever met the wife of the petitioner and there was no refusal to accept notice. The appellant also reiterated his argument regarding newspaper "Aaj ki Report" not being widely circulated in the locality in which he lived.
65. The Appellate Court referred to judgements cited on behalf of the petitioner namely Smt. Vinod Rani Lamba Vs. Baburam Yadav and Others reported in 2017 (135) RD 427, and Lawyers Cooperative Housing Society Limited Agra Vs. Shri Krishna Grah Nirman Samiti Limited reported in 2002 (2) ARC 415; that the burden lay upon the plaintiff to prove that summon was duly served upon the defendant, once the defendant denies its service upon him. The petitioner argued that service through registered post or substituted service through publication in newspaper cannot be deemed to be sufficient service as the application filed under Order V Rule 20 CPC by the plaintiff was not duly supported by affidavit. It also noted the argument raised by the counsel for the petitioner that the written statement mentioned the date fixed in Regular Suit No.294 of 2003 as 08.08.2003 whereas the written statement itself was filed only on 29.08.2003 therefore it could not be said that sufficient time was available to the defendant to appear and assist the Court in Regular Suit No.294 of 2003. The petitioner had placed reliance upon judgement rendered in Sudesh Vs. Additional District Judge and Others (supra). The Appellate Court also referred to the records which revealed that the Process Server had submitted a service report on 28.08.2003 referring to summons sent through Court, Document Nos.D-15/12D- 15/4 and also D/17; wherein the Process Server had noted that summon was served upon the wife of the defendant Smt. Usha Chaturvedi who had refused to take the same. Effort was made to affix the same on the house which was also not permitted by Smt. Usha Chaturvedi and local residents Radhe Shyam Shukla and Shiv Shankar Shukla had witnessed the whole incident. The Appellate Court also referred to the Registered Post Envelope available on the record as Paper No.D/18 which noted initially the addressee having not been met and thereafter of the refusal to accept. The Appellate Court also considered the argument regarding wrong address having been shown of the house of the defendant and also the newspaper "Aaj ki Report" having no circulation in the locality.
66. However, the Appellate Court referred to the judgement rendered by the Supreme Court in State of Madhya Pradesh Vs. Hira Lal and Others reported in (1996) 7 SCC Page 523, wherein the Supreme Court had observed that any endorsement by the Postman/Process Server of ''not met' and ''shop being found closed', should be treated to amounting to sufficient service. The Appellate Court also referred to the argument raised by the appellant petitioner that the word 'not' mentioned in Paragraph-5 of his Replication in Regular Suit No.144/1999, showed that he had no knowledge of pendency of Regular Suit No. 294 of 2003.
67. The Appellate Court referred to the judgement rendered in Sunil Poddar Vs. Union Bank of India reported in 2008 (2) SCC 326, and its para 23 as aforesaid.
68. The Appellate Court also referred to judgement rendered by this Court in Sulaiman Vs. IV Additional District Judge, Muzaffarnagar reported in 1998 (2) JCLR 1052, where it was observed - -
"Order IX Rule 13 in the Second Proviso provides that no court shall set aside the decree passed ex parte merely on the ground that there has been any irregularity in 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. Therefore, the absence of service of summons would not be a ground to set aside ex parte decree if the Court is satisfied that the defendant had notice of the date of hearing of the case and had sufficient time to appear and answer the plaintiffs claim.."
69. The Appellate Court has framed two issues namely; (i) whether the Appellant/Defendant had notice of date of hearing in Regular Suit No. 294/2003? (ii) whether the appellant defendant had sufficient time available to appear and answer the plaintiff's claim in Regular Suit No. 294/2003?
70. The Appellate Court referred to the Process Server's report and mention of local residents Shivshankar Pandey and Radheshyam being present at the time when he had served a notice on Smt. Usha Chaturvedi, wife of Subhash Chandra Chaturvedi. The lady had read the notice and returned it saying that her husband was not at home and she could not accept it. She had also prevented the Process Server Mohammed Salim from affixing the notice on the door of the house in question. As against this report of Process Server, Smt. Usha Chaturvedi had not filed any affidavit denying its content.
71. Also the Appellate Court referred to the envelopes of Registered letter available on the record which showed endorsement by the Postman of ''not met' and ''refusal to accept'. Again, the publication was also found to have been made in a daily newspaper and substituted service having been found sufficient by the Trial Court in its order dated 17.02.2004.
72. The Appellate Court also referred to documentary evidence filed with respect to Written Statement in Regular Suit No.144 of 1999 and Replication filed therein. It referred first to the certified copy of the Replication having been obtained by the private respondents on 14.07.2006 and the second certified copy of the Replication being obtained by the appellant petitioner on 10.10.2007 and the interpolation made therein. It referred to the contents of Paragraphs 22 and 23 of the Written Statement and the contents of Paragraph 13 of the Replication and came to the conclusion that it was apparent that the defendant had sufficient notice of pendency of Regular Suit No.294 of 2003. The argument that the defendant could not have sufficient time as the Written Statement was filed on 29.08.2003 and mentioned the date fixed in Regular Suit No.294 of 2003 being 08.08.2003 was noted by the Appellate Court but rejected on the ground that the defendant had notice of pendency of Regular Suit No.294 of 2003 at least on 29.08.2003 and had also filed his Replication on 16.10.2003.; the Trial Court had eventually proceeded ex-parte only on 17.02.2004, and had the defendant been careful enough he could have immediately approached the Trial Court after service of Written Statement upon him on 29.08.2003 , and made an honest effort to file a Written Statement therein. Also, publication in the newspaper was done on 11.01.2004 and the order to proceed ex-parte was only made on 17.2.2004 and the Suit decreed two years later on 22.5.2006. Having dealt with all the arguments of the Appellant petitioner on facts and law it rejected the Appeal.
73. In Deepak Banerjee Vs. Smt. Lilavati Chakraborty AIR 1987 Supreme Court 2055, the owner of the premises sought to evict the tenant on ground of subletting a part of the premises. The court observed that in order to prove tenancy or sub tenancy two ingredients had to be established, firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question, and secondly, that right must be in lieu of payment of some compensation or rent. The lower courts had given concurrent findings of fact that there was creation of subtenancy without considering essential ingredients necessary for such finding to be recorded against the tenant. The High Court refused to interfere with the findings of fact. The Supreme Court observed that it normally does not interfere with finding of fact but if a finding is manifestly unjust it cannot be allowed to perpetuate injustice.
74. The Supreme Court observed in Paragraph 13 of its judgement thus:-
"It is true that normally this Court is too reluctant to interfere with the concurrent findings of fact. But if the essential ingredients necessary for a finding of fact have not infact been found by the Court below, then this Court is bound to examine the question where in justice or wrong is done. In Variety Emporium Versus VRM Mohammed Ibrahim Naina reported in AIR 1985 Supreme Court 207 Chandrachud CJ, observed that concurrent findings of lower courts have relevance on the question whether Supreme Court should exercise its jurisdiction under Article 136 of the Constitution to review a particular decision. That jurisdiction has to be exercised sparingly. But, that cannot mean that injustice must be perpetuated because it has been done two or three times in a case. The burden of showing that a concurrent decision of two or more Courts or Tribunals is manifestly unjust lies on the appellant. But once that burden is discharged, it is not only the right but the duty of the Supreme Court to remedy the injustice. As there is no finding of exclusive possession nor of any payment of money in exchange of the user of the part of the premises the finding of subletting cannot in law be upheld."
75. This Court having considered the facts as pleaded by the petitioner and the private respondents in this petition and the facts and Law as appreciated by the learned Trial Court and the Appellate Court, does not filed any perversity in the appreciation of facts by the two learned Court below or any infirmity in the law as appreciated in the orders impugned. The petition being devoid of merit is dismissed. The interim order granted earlier by this Court is vacated.
Order Date :28/09/2022 Darpan Sharma [Justice Sangeeta Chandra]