51 CivilRevision N02482 of 2007 1 P INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CivilRevision N02482 of 2007 Date of Decisionl5112009 Mohinder Singh etitioner Versus 1 Sushma Devi Respondent 00 CORAM Honble Mr Justice Mehinder SinghSullar I C5 Present MrAlok Jain Advocate I for the petitioner l MrParveen Hans AdvoCt 1 for the respondent Illll11 r Mehinder Sinqh Sullar J I C6 1 The matrix of the facts Ill the commencement reievant for disposalof the presentrevlsion petitionfiled by petitionet ms tenantmMohinderSinghChauhan to be referred as the tenantl Z and emanatingfrom the record is that initially Smtushma Devi daughterof Late Smt3iran Bai lereinaner to be referred as the Iandladylfiied an ejectmentpetitionNo on 151996 againstthe tenant by invokingthe provisions of Section 13 of the Haryana Urban ControI of Rent 8 EvictionlAct 1973 Olereinaner to be referredas Yhe Actl on the groundof nonoaymentof rent and that as the tenant has damagedthe wail roof and Ooor of the demised premisestherefore the same had become unfitfor human habitation 2 As the tenant did not appear despiteservice therefore ex parteproceedings were orderedagainsthim on 13051998 3 Havingcompletedall the codai formalities the Rent Controller acceptedthe ejectmentpetitionEx parteland directed the tenant to hand . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 52 CivilRevision N02482 of 2007 2 over the vacant possession to the Iandlady within two monthsvide order dated101998 Exhibit PI 4 Thereafter the tenant moved an applicationNo on 1 041999 for settingaside the ex paneejectment order under Order 9 Rule13 of the Code of Civil Procedure inter alia pleadingthat he was not served with any summons to appear in the Court in the ejectmentpetjtion CC neither any summons were presentedto him or his wife nor any such 0 Munadi was conducted at any time Althoughhe was residingin the C demisedpremisedregularly and never keptclosed and easiiyavailable for C receivingthe summons It was claimed that the due procedurefor eHecting I seivice as under CPC has not been followed In the nutshell it Z was submittedthat the tenant was not dulyseNed He came to know about the impugnedejectment order onlyon 09 1999when the husband ofthe Iandladyalongwith couit official came to take the possession of the I a5 demisedpremises In all accordingto the tenant that as he was neither dulyserved nor due procedurefor eHectingseivice has been followed 7 thereforeex paneejectmentorder is Iiableto be set aside On the basis of Z the aforesaid groundsthe tenant Oled the presentapplication for seUing Om asidethe ex parteejectmentorder in the manner indicated hereitoove 5 The Iandladycontested the claim of the tenant and Oled the replyinter alia pleadingcenain preliminary objectionsof of the applicationsuch as it did not disclose sufficient reasons for setting aside the ex parteorder of ejectmentapplicationwas hopelesslytime barredand objectionof estoppelOn merits it was claimed bythe Iandlady 0 that the tenant has the knowledgeof the pendencyof the ejectmentpetition from 021 998 on which date his wife refused to acceptthe summons The Process Setver pastedthe summons on the door of his house The tenant has never approachedthe Coun priorto 17 1999 when warrant of possessionhas been issued and subsequently he has concocted a faise . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 53 CivilRevision N02482 of2007 3 b 1 storyin order to delayand prolongthe execution proceedingsThe tenant wasstated to have been dulyserved as per iaw Itwill not be out of place to mention here that the Iandlady has stoutlydenied all other allegations containedin the application and prayedfor its dismissal 6 Inthe wake of the pleadings of the paniesthe Rent Controller framedthefoilowing issues 1r 11 Whether applicanthas a suHicient cause to set 0 aside the order dated 131998 8 ex parteorder of dated 10199820PA I C5 21 Whether the is estoppedby his own I act and conduct from filingthepresent 31 Whether theapplication is timebarred20PR 7 The paniesbrought on record oral as well as the documentary t evidencein order to substantiatetheir respective pleadedcases 08 8 The Rent Controller decided issue Nol againstthe tenant while issue Nos2 and 3 were decided in favour of the Iandlady On 7 ultimateanalysisof the evidence on record and in view of the Ondings Oll Z thevarious issues the Rent Controllerdismissed the application for setting 0 aside the ex parteorder filed by the tenant vide impugned order dated 1942005 9 The tenant did not feel satisOedwith the impugned order and filedthe presentrevision petitionThat is how i am seized of the maHer 10 At the very outset Iearned counsel for the tenant has contendedwith some amount of vehemence that neither the wife of the V tenant has ever refused to acceptthe summons nor the copy of the ejectmentpetitionwas pastedaiongwith the summons on the wall of his house So much so Munadi proceedings were not conducted as per Iaw and thus he urgedthat ex parteejectmentorder be set aside In this regardhe has placedreliance on the judgmentof Honble ApexCoun In . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 54 Civil Revision No2482 of 2007 4 7 P Sushii Kumar Sabharwal Versus GurpreetSingh and others 2002111 PLJ 456 and judgments of this Coun in Babu Ram BatnagarVersus Satish Kumar Rawal Plt 234 Om Parkash Versus Surinder Kumar and another PLR 655 Shiv Dayalof FerozepurVersus ishwar Dass 1984 HRR 355 and Ajit Singh Versus Santokh Singh RCR ICivill13 1 11 On the contraryit has been urgedon behalf of the Iandlady 0 that as the wife of the tenant refused to acceptthe summons resultingthe C pastingof the same on her house therefore thependencyof theejectment 0 petitionWaS Ill the knowledgeofthetenantand as such senlice on the adultfamilymemberwas a due service Moreover the Rent ControIIerhas Z furtherordered the substitutedsetvice byway of Munadi The submission r is that in this manner the tenant was dulyserved and no groundfor setting aside the ex parteejectment order is made out particularlywhen the 08 tenant did not examine his wife as a witness He has also pointedout the pendency of earlier ejectmentpetitionsand other IitigationsExhibit Pm2 7 and Exhibits Pe5 to Pal2I between the panies so as to contend that the Z conduct of the tenant is not bona Odebut he is harassing the poor Iandlady and she was compelledrepeatedly to Olethe ejectmentpetitionsto recover the rent from the tenant in supportof his contentions Iearned counsel for the Iandladyhas relied upon the judgments of this Coun in cases Bal Kishan and others Versus Tara Chand and others RCR IRentl 176 and Ajita Sharma Sweety Babi Versus Rakesh Kumar Sharma RCR Civill 565 12 In Sushil Kumar Sabharwars case Isupral relied on behalf of the tenant after noticingcertain infirmitiesin the setvice of summons which were stated to have been tendered on 2201993 1e just a day before the date of hearingon 202 1993 On the peculiarfacts and circumstancesof that case it was held that the tenant was not dulyseNed . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 55 Civil Revision N02482 of 2007 5 0 d 1 Sequellyin Babu Ram Batnagarscase Isupral this Court while Order 5 Rule 2 vizaeviz Order 9 Rule 13 of the Code of Civil Procedureit was observed that it was incumbent upon the Process Server to ask aboutthe exact identityof the tenant before recording the reportof refusal of summons and attachment of copy of the plaintor conctse statementthereof aiongwith summons was mandatoryIn Om Parkashs C case lsupral it was observed that as enjoinedbyOrder 5 RuIe 17 of the 0 Code of Civil Procedure when a defendant or his agentrefused to signthe 0 when the summons are presentedto him the serving I C5 officer shall affix a copy of the summons on the outer door or on some I other conspicuouspatt of the house in which the defendant ordinarily Z resides or carries on business or personallyworks for gainand shall then return the originalto the Court from which it Was issued with a repon endorsed thereon statingthat he had so aHixedthe copy of the summons I the circumstancesunder which he did so and the name and address of the personbywhom the house was identiOedand in whose presence the copy 7 was affixed and in the absence of the same such reponcannot be relied Z upon The obsetvations in Shiv Dayaland Ajit Singhs cases Isupral Ll are also to that effect 13 Likewise it was observed in Bal Kishans case 1supralrelied on behalf of the Iandlady that there Iooksto be a section of tenants which seems to think that by not payingrent theycan force the Iandlord to approachthe Coutt for recovety of rent and then allow the proceedings before the Coun to go ex parteby disappearanceduringthe course of or by notappearanceW the same time it was held that if the summons sent to the tenant throughProcess Server and any adult memberrefuses to acceptseIvice nor divulgedaddress of the tenant and it amountedto refusal of service and the Rent Controller was rightin passing the ex parteejectmentorder In Ajita Sharmas case 1supral it was . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 56 CivilRevisionNo2482 of 2007 6 J declaredthat purpose of setvice of the notice to the oppositepanyis that he should know the case one has to meet and contest and if the person IS in the knowledge of the and knows about the pendencyof the case and still ignoresthe said it would be whollyunfair for him to urge thathe had not been formally served On the contratythe matrixof the Iaw emerging of the judgments cited on behalf of the Iandladyis that m c under such circumstances it will be due service and the ex paneejectment order can be passedin this respect 3 14 Possiblyno one can disputeabout the propositionof Iaw I C5 emerging from the aforesaid judgmentsrelied on behalf of the tenant but to me the same Umutatis4nutandisare not applicableto the facts of the presentcontroversyMoreover it is now well settled principleof Iaw 2 thateach case has to be decided on its own peculiarfacts circumstances Q and respectiveevidence broughton record by the partiesin order to I substantiatetheir pleadedcases 08 15 Such thus beingthe positionof Iaw now the short and 7 significant questionthoughimponantarisesfor determinationin this case iswhether the tenant was dulyserved or not This conlroversy was subject matterof issue Nol before the Rent Controller and now revolves in a narrow compass 16 Havingheard the Iearnedcounsel for the partieshavinggone through the record of this case with their valuable helpand aner bestowal of thoughts over the entire matter to me as there is no merit therefore the Pov petition deserves to be dismissed for the reasons mentioned herein below 17 As indicated earlier a bare perusalof the evidence on record would suggest that the IandiadyOled ejectmentpetitionNo on 1541996 againstthe tenant The summons for securingthe presence of the tenant were issued but his wife refused to accept the same and the Process Server afflxed the summons in the demised premisesand duly . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 57 3 Civil Revision N02482 of 2007 7 made the reporton it Exhibit P31 to that effect Thereafter the Rent Controlleragainordered that the tenant be againsummoned through Munadi by way of beatingof drums on 13051998 vide order dated 1041998 On 131998 the trial Court passedthefollowing order Presentl ShAHans Advocate for the plaintiH None for therespondent m 4rWV 0 Respondentdulyserved throughMunadi But none IS C presenton behalf of respondent Case called several I C5 times since morning It IS already 00 PM Now I respondent is proceededagainstex pane Z Date is requesteclTo come up on 2598 for ex parte evidence on behalf of plaintiH at his own r 18 Thus the ex patteproceedingswere ordered againstthe I 08 tenant and the case was slated for ex parteevidence of the Iandlady Ultimatelythe Rent Controller passedthe ejectment order on 10 1998 m2 Thereafter it was on 1741999 the tenant moved an application for Z settingaside the ex patteejectmentorder 19 The tenant while appearingas his own witness as PWml has inter alia stated that he has been residingin the house in questionfor the Iast 91 0 years on monthly rent of Rs2751ePM The earlier petitionOled by the Iandladyseekinghis eviction was dismissed He maintained that neither summons of the ejectmentpetitionwere served on him because he 0V resides outside nor any member of his familywas setved The reponon the summons was stated to be false He has produceda copy of the summons and repoi1on it Exhibit PI and Munadi proceedingsExhibit P41 20 The main contentionof the Iearnedcounsel for the tenant that as correct address was not indicated in the ejectmentpetitionthe Process . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 58 1 Civil Revision No2482 of 2007 8 P Serverdid not obtainthe signatures of the witnesses thereforeno reliance can be placedon such reports80 it cannot be deemed to be a Iegal service is not onlydevoid of merit but misplacedas well Because a bare perusalof the summons Exhibit P31 would reveal that the address of the tenant has been dulydescribed as ShMohinder SinghChauhan resident of House N351 Ram NagarColonyBhiwani The reponof the Process C Server on it is veIy clear and detailed which indicate that he Process ServereRWmll went to the indicated house for the purpose of service of the C Chauhan and he was not presentin the house at I C5 that time as he was workingin Rajasthan on Armyduty The Process I ServermMithai Lal while appearingas RWl n his reportExhibit Pe31has Z maintainedthat the wife of the tenant was found presentbut as she herself refused to acceptthe summons therefore he aftlxedthe same on the wall r of thehouse He has sworn an affidaviton the summons in this respect I 21 Notonly that in the wake of refusal to acceptthe summons by 08 the wife of the tenant the Process Setver has amxed the same in the 7 demised premisesstill the Rent Controller adoptedanother additional Z mode of service and directed the setvice of the tenant throughMunadi and Munadi was carried out vide summons Exhibit P41 which is clear from the reportdated 231998 on it 22 The matterdid not rest ther Even in crossexamination the tenant has admitted that he is workingin DefenceForces and residingat SuratgarhRajasthanbut he comes to Bhiwani once or twice in a month and his wife Savitri Devi is residingin the demised premises In other words he tenantladmitted his frequent visits in the demised premisesIn e this manner it cannot be said that pendencyof the presentejectment petitionwas not in his tenantlknowledge Moreover the Iandladyhas examined Mithai LalProcess Server as RWel who has provedhis repon 1 on the summons Exhibit Pe31 SequellyRl2eNaresh KumareProcess . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 59 CivilRevision No2482 of 2007 9 Servermaintainedthat Munadi was carried out againstthe tenant vide summons Exhibit P41 He provedhis reporton summons Exhibit P410 Likewiseinstead of the statement of RWe3and Kishore husband of the Iandladyin toto sufOceit to say that he has corroborated thecase of the Iandlady on all vital counts Meaningtherebythe Iandlady has producedmore than suftlcient evidence to prove that the tenant was m fL dulyserved 0 23 Aboveall it is not a matterof disputethat case of the tenant C from the very beginningwas that neither his wife refused to acceptthe C5 summons nor the same were affixed in the demised premisesnor any I Munadiwas carried out It means his case revolves round and his wife wasthe most materialwitness to throwthe Iight on the relevant issues But 2 neitherthe tenant has examined her as a witness nor any cogent r explanationis on record in this connectiont means the I tenant has withheld the best possibleevidence for the reasons best known C6 to him and in that eventualityan adverseinference againstthe tenant is 7 inevitable In this manner no implicitreiiance can be placedon the self Z and bald statementof the tenant to dislodgethe oral as well as the tl evidence broughton recordby the Iandladyas discussed herein above in thisconnection 24 The next argumentof the Iearned counsel for the tenant that neither the house in questionwas identified nor any person signedthe reportstherefore the reportsare vague againhas no force Because as statedabove the completeaddress has been described on the summons Exhibit Pe31and reportson the summons Exhibits P3 and P4I are clear and implicit There is no ambiguity in the repottsmade by the Process Serveron the summons Exhibit P31 No doubt the Process Server did not obtain the signaturesof any person on the summons but in fact that was not Iegallyrequiredbecause there was no disputeabout the identity . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 60 In 1 11 CivilRevision No482 of 2007 10 Il and correct house number of the demised premises was described on the summons Exhibit P31 Moreover it ipsofacto isno groundto disbelieve the cogentreponsof the Process Server in this regardand contrary argument has gotno bearing on the presentcontroversy 25 This is not the end of the matter Order 5 Rule 15 of the Code of Civil Procedure postulatesthat where in any suit the defendantis absent 1 from his residence t the time when the service of summons is soughtto 0 be effected on him at his residence and there is no Iikelihoodof his being C found at the residence within a reasonable time and he has no agent I C empowered to acceptservice of the summons on his behalf service may I be made on any adult member of the familywhether male or femaie who Z is residing with him 26 As mentioned above Slnce thewife emale aduit memberlof C the tenant has refused to acceptthe service SO the Process Server did not I haveany other optionbut to aMx the summons on the house as per Iaw 08 As regardsthe afflxation of copy of the ejectmentpetitionalongwiththe 7 summons as contended on behalf of the tenant on the house is Z concerned there is no such Iegalrequirementafter the amendmentin CC in this context Reference may be madeto the provisions of Order 5 Rule 17 of the Code of Civil Procedure which postulatesthat where the defendant or his agentor such other person as aforesaid refuses to sign the or where the servingomcer after usingall due and reasonable diligencecannot Ond the defendant lwhois absent from his residence at the time when service is soughtto be effected on him at his L residence and there is no Iikelihoodof his beingfound at the residence within a reasonable timeland there is no agentempoweredto accept service of the summons on his behalf nor any other person on whom seivice can be made the servingofficer shall amx a copy of the summons on the outer door or some other conspicuouspanof the house in which the . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 61 Civil Revision N02482 of 2007 11 01 defendantordinarilyresides or carnes on businessor personallyworks for gain 27 This is preciselywhat the Process Server has done in the presentcase Meaningtherebythere was no Iegal of affixationof the summons alongwith copy of the ejectmentpetition Moreoverthe Rent Controller made anotheradditionalanemptto see the 1 tenant bysubstituted setvice byway of Munadi which was dulycarried out o but still the tenant did not preferto contest the ejectmentpetitionfor the U reasons best known to him Assumingfor the sake of argumentthough I C5 not admittedlif there is any such minor or technicalirregularityin the I serviceof summons as urgedon behalfof the tenant even then ex paite Z order cannot Iegallybe set aside as contemplated in provisoto Order 9 Rule 13 of the Code of Civil Procedure which postulates that no Coun shall CC 1 set aside a decree passedex partemerelyon the groundthat there has I C45 been an in the service of summons if it is satistled that the defendanthad notice of the date of hearingand had sumcient time to 7 appearand answer the claim of the plaintiffThis provisionIS fully Z applicable in the presentcase 28 There is another aspectof the matter which can be viewed from a differentangle The Rent Controller also decided issue Nos2 and 3 pertainingto estoppeland Iimitation Ill favour of the Iandladyin the following mannerl 91 Issue Nos and 3 In view of my findingsgiven on issue No as hereinabo Since the applicant acquired the knowledgeregardingpendency of the petitionon 1351998 itself when his wife refused to accept the summon and notproductionof wife of applicantin evidence also makes the case of applicantimprobable . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 62 CivilRevision N02482 of 2007 12 4 Due to these acts and conducts the applicantIS estoppedfrom filing the presentapplicationand the application filed is also time barred Therefore these issuesare decidedin favour of the respondent 29 As per Ailicle 123 of the Limitation Act the tenant was to Ole such petitionwithin a stipulated periodof one month As mentionedearlier the IandladyOledthe ejectmentpetitionon 151996 0 The wife ofthe tenant refused to acceptthe serviceon 001998he 0 tenant did not contest the ejectmentpetitioneven despitesubstituted I C5 service byway of Munadi and ex paneproceedings were ordered against I him on 131998 Ultimately ex parteejectmentorder was passedbythe Rent Controller on 101998 Exhibit Pel l but the tenant has Oled the applicationfor settingaside the ejectmentorder under Order 9 Rule 13 of theCode of Civil Procedure on 171999 That means it was Oled aner 08 more than one year when the pendencyof proceeding wasin theknowledge ofthe tenant on 001998 when his wife refusedto accept 7 the summons which is hopelessly time barred in view of the Jaw declared by Honble Apex Couit in Mahabir SinghVersus Subhash and others ICivilAppealNoA881 of 2007 decided on 121020071and by this Coun in cases JaspalKaur Versus Mander Singh RCR ICivill395 Mls Swastika Textiles AgencyVersus Tilak Raj RCR 1Civill 475 and AmarjitSingh and another Versus Baiwant Singh 2000131 RCR ICivill81 30 Thus it wouid be seen from any anglethat if the entireoral as well as the documentaty evidence broughton record by the paniesis put togetherthen to me conclusion is inescapablethat it stands provedon record that the tenant was dulyserved and as no groundfor settingaside the ex paIteejectmentorder was made out therefore the Rent ControJler rightlydecided issue Nol againstthe tenant and issue Nos and 3 in . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 63 P Civil Revision No482 of 2007 13 6 favour of the IandladyAs no other has been pointedout bythe Iearned counsel for the tenant therefore the impugned order is hereby maintainedin the obtaining circumstancesof the case panicuiarly when it is now well settled that such order can onlybe interferedwith if the same is perverseand without jurisdiction No such vital or patent iilegality has been pointedout bythe Ieamedcounsel for the tenant 1r 31 No other pointworth consideration has been urgedor pressed 0 bythe Iearnedcounsel for the parties C4 32 In this view of the matterand for the reasons recorded hereeine O above the revision petition is herebydismissed with costs I Z lvloil 0SL November 2009 Mehinder SinghSullarl seema Judge C 1 C45 7 Z tl 1V1e 8 1 1r4 Pl 4 1r 1 1 . uma 2012.08.23 13: 02 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document