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1989 Supreme(P&H) 119
PUNJAB & HARYANA HIGH COURT
G.R.Majithia, J.
Kuldip Rai
Versus
Sharan Singh (Deceased By Lrs)
Civil Revision No. 893 of 1984,
Decided On : FEBRUARY 15, 1989
The conditions for ordering substituted service under Order 5, Rule 20 of the Code of Civil Procedure, 1908, must be satisfied before such service can be ordered.
Headnote:
RENT CONTROL ACT - SECTION 13(3)(a)(i) - EVICTION - SUB-TENANT - VALIDITY OF SUBSTITUTED SERVICE - CONDITIONS - BURDEN OF PROOF - APPLICABILITY OF JUDICIAL MIND - SECTION 13(3)(a)(i) OF THE RENT CONTROL ACT, 1958 - ORDER 5, RULE 20 OF THE CODE OF CIVIL PROCEDURE, 1908 - VALIDITY OF SUBSTITUTED SERVICE - CONDITIONS - BURDEN OF PROOF - APPLICABILITY OF JUDICIAL MIND.
Fact of the Case:
The petitioner, a sub-tenant, challenged the ex parte ejectment order passed against him by the Rent Controller. The petitioner argued that the substituted service ordered by the Rent Controller was invalid as the conditions for such service were not satisfied. The petitioner also argued that he had acquired knowledge of the proceedings only on the date pleaded by him and that the application for setting aside the ex parte order was within limitation.
Finding of the Court:
The court held that the substituted service ordered by the Rent Controller was invalid as the conditions for such service were not satisfied. The court also held that the petitioner had acquired knowledge of the proceedings only on the date pleaded by him and that the application for setting aside the ex parte order was within limitation.
Issues: 1. Whether the substituted service ordered by the Rent Controller was valid? 2. Whether the petitioner had acquired knowledge of the proceedings on the date pleaded by him?
Ratio Decidendi: 1. The court held that the substituted service ordered by the Rent Controller was invalid as the conditions for such service were not satisfied. The court relied on Order 5, Rule 20 of the Code of Civil Procedure, 1908, which provides for substituted service. The court held that before ordering substituted service, the court should be satisfied that the conditions on which alone it can be ordered exist, namely, that the defendant is keeping out of the way to avoid service or that for any other reason service cannot be effected in the ordinary way. The court held that the interim orders passed by the Rent Controller did not indicate that there was any material before the court on the basis of which it could record its satisfaction that the petitioner was keeping out of the way to avoid service or that for any other reason service could not be effected in the ordinary way. 2. The court held that the petitioner had acquired knowledge of the proceedings only on the date pleaded by him. The court relied on the evidence on record, which showed that the petitioner had deposited the arrears of rent in the court on October 12, 1988, and had been depositing the rent regularly thereafter. The court held that this action of the petitioner spoke volumes for his bona fides and good conduct and that it was not willing to believe that if he had been validly served, he would not have appeared in court to contest the application.
Final Decision: The court allowed the revision petition and set aside the ex parte ejectment order passed by the Rent Controller. The court remitted the case to the Rent Controller for de novo trial from the date when the petitioner was proceeded ex parte.
1. This revision petition is directed against the order of the Rent Controller refusing to set aside the ex parte ejectment order passed in rent application No. 51 of 1978, decided on January 31, 1983.
2. Sharan Singh and his son Jaswant Singh filed an application for eviction on the ground that the demised premises were let out to H.V. Oils Mills, Khanna, through its partner Hakumat Rai for a period of five years and after the expiry of the contractual period, respondents Nos. 1 to 4 continued in possession of the premises but as statutory tenants. They are in arrears of rent since November 1, l974, till the date of filing of the application and have sublet the premises to Kuldip Singh.
3. The respondents other than respondent No. 5 were proceeded ex parte on March 20, 1979. They were served through substituted service by an insertion in "The Daily Samaj Ludhiana". Respondent No. 5 claimed that he was in possession of the premises in pursuance of an agreement of sale executed in his favour by the landlords. He denied that relationship of landlord tenant existed between the parties.
4. The Rent Controller negatived the plea taken by the contesting respondent and ordered ejectment of the respondents.
5. Application for setting aside the ex parte ejectment order was moved on August 1, 1981. It was stated in the application that the applicant acquired knowledge of the ex parte ejectment order on March 29, 1981. The learned Rent Controller, after appraisal of the entire evidence, came to the conclusion that the application for setting aside the ex parte order was barred by time and that the applicant had failed to show sufficient cause for setting aside the ex parte order passed against him.
6. I have heard the learned counsel for the parties. It has been submitted by Mr. Markan, learned counsel for the petitioner, that before ordering substituted service on the applicants, it was obligatory for the learned Rent Controller to record a finding that on the basis of the material on the file he was satisfied that the respondent was keeping out of the way for the purpose of avoiding service and that summons could not be served in the ordinary way. It will be useful to reproduce the interim orders passed in the file before ordering substituted service on the petitioner :
"22-7-1978. Present counsel for the petitioner. It be registered. Respondents be summoned for 8-9-78 on P.F. and R.C. 8-9-78. Present counsel for the petitioner. Presiding Officer has left the charge. To come on 18-9-78. 18-9-78. Present counsel for petitioner. Presiding Officer has left the charge. To come up on 3-10-78. 3-10-78. Present counsel for the petitioner. Respondent be served for 23-10-78 on P.F. 23-10-78. Present counsel for petitioner. Respondents not served. They be again served for 20-11-78 on P.F.and R.C. 20-11-78. Present counsel for the petitioner. Respondent not served. They be again served through publication in Samaj Ludhiana on depositing publication fee and P.F. for 23-12-78. 23-12-78. Present counsel for petitioner. Presiding Officer is on leave. To come up on 8-1-79. 8-1-79. Present counsel for the petitioner. Respondents are not present. Fresh publication in Samaj Ludhiana be again issued for 29-1-79 on depositing publication fee and P.F. 29-1-79. Present counsel for the petitioner. Sh. S.K. Khanna counsel for respondent No. 5 publication not received back. Reminder be issued for 14-2-79. No tender has been made. 14-2-79. Present counsel for petitioner. Sh. Passey counsel or respondent No. 5. Publication not served. Be again issued for 20-3-79 on old P.F. 20-3-79. Present counsel for petitioner. Counsel for respondent No. 5. Others are not present. Publication was issued for 23-12-78 and 29-2-79, but none for respondents 1 to 4 and 6. So they are proceeded against ex parte. For W.S. to come up on 30-3-79."
7. Before ordering substituted service the Court should be satisfied that the conditions on which alone it can be ordered exist, nam
