Compliance with mandatory provisions of service of notice and the relevance of the 'date of hearing' as a consideration for proceeding ex-parte.

JUDGMENT

1. This writ petition has been filed by the petitioner-non applicant (for short, 'the non applicant1) under Article 227 of the Constitution of India against the order dated 25.11.2019 passed by the Rent Tribunal, whereby the application filed by the non applicant under Order 9 Rule 7 read with Section 151 CPC has been dismissed.

2. Facts of the case are that the respondent-applicant (for short, 'the applicant1) filed an eviction petition against the non applicants. On 2.1.2013, notices were issued to the non applicants. On 8.1.2013, the process server reached at the residence of non applicant no.4, but when she was not found at the given address and her daughter in law refused to accept the notices, the process server said to have affixed the notice at the outer door of opened house of non applicant no.4 in the presence of witnesses. In this view of the matter, the Rent Tribunal vide its order dated 15.1.2013 treated service of notice on non applicant no. 4 as sufficient and due to her non appearance, ex-parte proceedings were initiated against her on the same date. The non applicant no.4 filed application under Order 9 Rule 7 read with Section 151 CPC for setting aside the ex-parte proceedings, which came to be dismissed by the Rent Tribunal vide its order dated 25.11.2019. Hence, this writ petition.

3. Learned counsel for the non applicant submits that neither proper service was effected on the non applicant nor any notice of the Tribunal was received by her. For this reason, on 15.1.2013, non applicant could not appear before the Tribunal when ex-parte proceedings were drawn against her. He further submits that on 13.3.2019, the non applicant came to know about initiation of ex-parte proceedings from one Anurag Patni. As soon as the non applicant came to know about initiation of ex-parte proceedings, she engaged an advocate and filed an application for setting aside the ex-parte proceedings. However, the Rent Tribunal erred while dismissing the same vide order dated 25.11.2019. Hence, the impugned order is liable to be quashed and set-aside.

4. On the other hand, learned counsel for the applicant defended the impugned order. He submits that ex-parte proceedings were drawn against the non applicant on 15.1.2013, but the application for setting aside the ex-parte proceedings was filed in the year 2019 i.e. after expiry of about 6 years. He further submits that no reasonable justification was given for non-applicant's non appearance before the Rent Tribunal for such a long period of 6 years, despite the fact that she was having knowledge in this regard. He further submits that since the non applicant was not present at the residence and her daughter in law refused to accept the notice, the notice was affixed at the outer door of non-applicant's residence in the presence of two witnesses. The Rent Tribunal after taking into consideration all aspects of the matter, has rightly dismissed the application vide order dated 25.11.2019, with which no interference is required by this Court. In support of his arguments, he has relied on the judgment passed by the Coordinate Bench of this Court in the case of Nawal Kishore Bhageria Versus Additional District Judge NO. 7 (S.B. Civil Writ Petition No. 6460/2012; decided on 21.11.2012).

5. Heard. Considered.

6. Order 9 Rule 6 CPC deals with the procedure when only plaintiff appears.

7. Sub-clause (c) of Order 9 Rule 6 CPC provides the procedure when summons are served, but not in due time. It envisages thus:

(c) If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

8. In the case of Sushil Kumar Sabharwal vs. Gurpreet Singh & Others reported in (2002) 5 SCC 377, Hon'ble Apex Court has held as under:-

"7. Rules 17 and 18 of Order 5, C.P.