Back
1993 Supreme(AP) 212
Andhra Pradesh High Court
Judges : I.P.RAO
Mirza Rasheed All Safavi - Appellant
Versus
G.Bhaskar Rao - Respondent
Decided On : 04-13-93
The court clarified the conditions for valid substituted service under Rule 22(4) of the Rent Control Rules and held that the Rent Controller had the power to set aside an ex parte eviction order and order restoration of possession to the tenant where the eviction order was wrongfully passed due to lack of proper service of summons.
Headnote:
RENT CONTROL - EVICTION - SERVICE OF SUMMONS - SUBSTITUTED SERVICE - VALIDITY - CONDITIONS - INTERPRETATION OF RULE 22(4) OF THE RENT CONTROL RULES - POWER OF RENT CONTROLLER TO SET ASIDE EX PARTE EVICTION ORDER - RESTORATION OF POSSESSION.
Fact of the Case:
The landlord filed an eviction petition against the tenant on the grounds of wilful default in payment of rent, bona fide personal occupation, and making unauthorized alteration. The tenant was set ex parte after substituted service was allowed and an eviction order was passed. The tenant filed an application to set aside the ex parte order, which was allowed by the Rent Controller and the appellate authority.
Finding of the Court:
The court held that there was no proper service of summons on the tenant as required under Rule 22(4) of the Rent Control Rules. The court found that the landlord had not complied with the specific directions of the Rent Controller to take out the summons through court and by registered post to the correct address, but had instead obtained paper publication under Order V Rule 20 C.P.C. The court also found that the newspaper in which the publication was made did not have wide circulation in the locality in which the tenant was residing or carrying on his business.
Issues: 1. Whether there was proper service of summons on the tenant? 2. Whether the Rent Controller had the power to set aside the ex parte eviction order? 3. Whether the Rent Controller could order restoration of possession to the tenant?
Ratio Decidendi: 1. The court interpreted Rule 22(4) of the Rent Control Rules and held that substituted service could only be ordered if the landlord represented that the tenant was keeping out of the way to avoid service or that for any other reasons the summons could not be served in the ordinary way. The court found that the landlord had failed to establish that the tenant was evading service and that the substituted service was therefore invalid. 2. The court held that Rule 8(3) of the Rent Control Rules empowered the tenant to approach the Rent Controller for setting aside the ex parte order of eviction on satisfying the Controller that the summons were not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing. The court found that the tenant had satisfactorily established that the summons were not duly served upon him and that the address to which the summons were taken was not his residential address. 3. The court held that where an order of eviction was wrongfully passed, the Rent Controller had the power to order restoration of possession to the tenant. The court found that the ex parte order of eviction in this case was wrongfully passed due to the lack of proper service of summons and that the Rent Controller was therefore justified in ordering restoration of possession to the tenant.
Final Decision: The revision petition was dismissed. The landlord was granted three weeks' time to vacate the premises and deliver possession back to the tenant.
( 1 ) THE landlord preferred this revision aggrieved by the order of the learned I Additional Rent Controller, hyderabad in setting aside the exparte order of eviction passed against the tenant on 21-12-1992 in R. C. No. 315 of 1992 which was confirmed by the learned Chief Judge, city Small Causes Court, Hyderabad, in r. A. No. 67 of 1993.
( 2 ) WHEN the C. R. P. came up for admission, the learned counsel for the respon- dent-caveator has taken notice and both the learned counsel have addressed elaborate arguments. It is, therefore, felt that the revision petition should be disposed of even at the stage of admission, because, I had the benefit of hearing both the learned counsel at length.
( 3 ) THE petitioner herein filed r. C. No. 315 of 1992 for eviction of the respondent-tenant from the non-residential premises bearing Municipal No. 21-1-1126 situated at Pathergatti, Hyderabad (hereinafter referred to as the suit premises ), on the grounds of wilful default in payment of rent for three months, bona fide personal occupation and making unauthorised alteration. There is no personal service of summons on the tenant. The general Power of Attorney of the landlord filed an application on 17-11-1992 for substituted service. The learned Rent Controller allowed the substituted service and basing on the publication made in a local telugu Daily known as "chukkani", the tenant was set exparte on 21-12-1992. On that day, the learned Rent Controller adjourned the case to 28-1-1993. On a petition filed by the landlord to advance the case in I. A. No. 440 of 1992, the case was advanced, the G. P. A of the landlord gave evidence and exparte eviction order was passed granting one month s time for vacating the premises. The exparte decree of eviction was executed on 4-2-1993 and the tenant was dispossessed from the suit premises on that day.
( 4 ) ON the next day, the tenant filed i. A. No. 70 of 1993 before the learned Rent controller for setting aside the exparte order of eviction on the ground that there was no personal service of summons on him and it is only through the Bailiff who came to the suit premises for executing the warrant that he came to know about the order of eviction passed against him. Both the learned Rent controller as well as the learned appellate authority up-held the contention of the tenant that there was no proper service of summons on the tenant as required under law and have set aside the exparte order of eviction. Challenging the correctness of the said decision, the landlord has preferred this revision petition.
( 5 ) THE learned counsel for the petitioner-landlord argued that the summons were taken to the address given in the rental Agreement; that the tenant intentionally evaded receipt of summons; that thereupon the landlord filed a petition for substituted service; that as directed by the learned Rent Controller, the publication was made on 3-12-1992; that the learned Rent controller having been satisfied about the proper service of summons through substituted service, has set the tenant exparte on 18-12-1992 and that after recording the evidence of the General Power of Attorney the eviction was ordered. He further submitted that the learned Rent Controller committed an error in allowing the I. A. No. 70 of 1993, without the tenant going into the witness box and proving the allegations made in the affidavit and, therefore, the finding based without evidence cannot be considered as a finding of fact. In otherwords, according to the learned counsel there is no evidence to show that the tenant did not reside at the address to which the summons were taken. He, therefore, contended that there are no justifiable grounds for setting aside the ex parte order of eviction and, hence, the decision of the courts below is liable to be set aside.
( 6 ) THE learned counsel for the respondent, on the other hand, argued that there is no service of notice as contemplated under Rule 22 (4) of the Ru
