Delhi High Court
S. Mohinder Pal Singh vs Uttam Kaur Puri on 13 August, 1996
Equivalent citations: 63(1996)DLT845, 1996RLR441, 1997 A I H C 455, (1997) 1 RENTLR 518, (1997) 1 RENCR 314, (1996) 63 DLT 845, 1996 WLC(RAJ)(UC) 442
JUDGMENT
J.K. Mehra, J.
(1) The petitioner has paid in the Court today a sum of Rs. 15,000.00 towards arrears of rent which has been accepted by the respondent without prejudice to her rights regarding balance, if any. Counsel for the petitioner to file details of the payments made from February 1993 till date, within one week.
(2) I have heard the petitioner’s Counsel. His main contention is that the special procedure for service prescribed under Section 25-B of Rent Control Act has not been followed and there was no personal service on the petitioner. I have perused the record. I find that on two occasions, summons were issued in strict compliance of the procedure laid down under Section 25-B of Rent Control Act. Summons issued under registered A.D. post were taken to the petitioner’s address. The cover was taken to the address on 28.3.1993, 29.3.1993, 30.3.1993, 31.3.1993, 2.4.1993, 3.4.1993 and 6.4.1993 and was returned with the postal remarks “Bar bar jane par evam suchna dene parbhi praptkartaghar par nahin milta “. The summons issued by ordinary process were returned with the following report of the process server to the effect that brother and mother of the petitioner met and stated that he was out of station. This was the position on both days when service was attempted by process server. On the second attempt to serve summons, the registered cover was returned after attempts to serve on 8.9.1993, 9.9.1993, 10.9.1993, 11.9.1993, 13.9.1993 and 14.9.1993 with the remarks “Bar bar jane par tatha suchna dene par bhi praptkarta jaanboojhkar gharparnahin milta”. The summons sent on this occasion by ordinary process were returned with the remarks that the petitioner after reading the notice refused to accept the same. From these returned registered A.D. covers, and the report of the process server, it becomes apparent that repeated attempts were made to serve the summons on the petitioner, but he evaded receiving those and on account of the Court feeling satisfied that the petitioner could not be served by the ordinary process and was keeping out of the way, the substituted service was ordered even though in view of his refusal, the Court was not obliged to order substituted service. I have also checked up a copy of the newspaper carrying the proclamation and the postal certificate and find that it was duly sent to the correct address of the petitioner under Certificate of Posting as required under High Court Rules and Orders. Inspite of that, there was no appearance. Counsel for the petitioner has relied upon the case of Smt. Karma Wati v. Sh. Rajinder Singh, reported as 1979(2) Rent Control Journal 1. A perusal of that case will show that the process was not issued, as was provided under Section 25-B, as both the ordinary process as well as registered A.D. covers were not sent and the judgment was rendered. In the present case, such a situation does not prevail. As such, I find that this ruling is of no assistance to the petitioner. The order of eviction was passed on 1.12.1993. Thereafter, the matter has been lingering on because the petitioner moved for recall of the ex-parte judgment by moving an application under Order Ix Rule 13, Cpc, which was dismissed on 22.3.1995. I have also perused the impugned order. The view taken by the Trial Court of the legal position in arriving at its finding cannot be faulted and it has rightly declined the application of the petitioner. Taking the totality of facts into consideration, I find that the petitioner has failed to prove that he was prevented by any sufficient cause from appearing when this case was called on for hearing. In the light of the remarks of the postal authority and the reports of service by the process server referred to hereinabove apart from. the admitted fact that the newspaper carrying the proclamation was delivered at the correct address, it cannot be presumed that the petitioner (respondent before the Trial Court) did not have notice of the date of hearing, particularly when on the postal cover itself, the cause title as also the date of hearing and the name of the Court are mentioned and also the refusal by the petitioner to receive the summons sent by ordinary process after reading the notice. In the second proviso to Order Ix Rule 13, it is provided, “Provided further 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.” In the facts and circumstances of the present case, it cannot be presumed that he had no information/notice of the date of hearing. In view of the facts, noted above and those discussed in the impugned order, I do not find any merit in this petition. It is accordingly dismissed. There will, however, be no order as to costs.
(3) Counsel for the respondent prays that warrants of possession be ordered simultaneously alongwith the police aid to seek eviction. To come up for consideration of this request on 19th August, 1996.