Summon--Process Server did not obtain signatures of any witness to support his report that there was refusal to receive summons--Before affixing the summons on house no attempts were made by the Process Server to get the house identified by anyone--Summons held to be not duly served

JUDGMENT

Ms. Ritu Bahri, J.:- Santosh Sharma-petitioner (tenant) has filed this petition against the order dated 21.05.2012 passed by the Rent Controller, Jalandhar, whereby her application for setting aside the exparte ejectment order dated 08.02.2007 has been dismissed.

2. Case pleaded by the petitioner was that she had received summons to appear before the Executing Court on 15.12.2007 and thereafter, she came to know that an exparte ejectment order dated 08.02.2007 had been passed against her by the Rent Controller. From 14.01.2008 to 16.01.2008, there were holidays and the application for setting aside the exparte order was filed on 17.01.2008, which was within the period of limitation from the date of knowledge i.e. 18.12.2007 when she came to the Court and got knowledge about the ejectment order dated 08.02.2007.

3. On notice, respondent-landlord put in appearance and took the ground that application was hopelessly time barred. Summons of ejectment petition was received by Mamta, daughter of tenant-applicant Santosh Sharma. She was served on 14.12.2007. After being served, no enquiry was made by her on 14.12.2007 to 17.12.2007.

4. From the pleadings of the parties, following issues were framed:-

1. Whether the applicant was served or not? OPA

2. Whether the exparte order dated 08.02.2007 is liable to be set aside? OPA

3. Relief.

5. Issue Nos. 1 and 2 were taken up together. Santosh Sharmaapplicant appeared in the witness box as AW-1 and reiterated the contents of the application by way of affidavit Ex.AW1/A. Thereafter, she closed her evidence.

6. Respondent-landlord himself appeared as RW-1 and examined Ramesh Kumar, Bailiff (RW-2), Tarsem Lal, Process Server (RW-3) and Rachpal Singh, Process Server (RW-4).

7. After going through the evidence led by the parties, the Rent Controller held that in the ejectment petition, the address of applicant- Santosh Sharma was mentioned as resident of Amrik Nagar, near Ajit Nagar, Jalandhar. This fact was not disputed by applicant-tenant. During the pendency of ejectment application, summons were issued on the same address and were received back with the report of refusal. Thereafter, she was got served through substituted service i.e. munadi/affixation on the same address i.e. Amrik Nagar, near Ajit Nagar, Jalandhar. Despite service through substituted process, she did not turn up. It was further observed that the main ground to challenge the report of Process Server was that he did not produce any witness in support of his report. Except, oral testimony of applicant-Santosh Sharma, she did not lead any evidence to produce that the report of refusal was false. Moreover, application for setting aside the exparte order dated 08.02.2007 was made on 17.01.2008, which was after the gap of one year. When she came to know about the summons on 15.12.2007, why she waited till 17.01.2008 for filing the application. There was no explanation in that regard. The Rent Controller has further observed that the applicant-tenant had miserably failed to prove that the report of the Process Server, who effected the summons through munadi/affixation, was false and procured one. With these observation, the application filed by tenant-petitioner for setting aside the exparte order, was dismissed. Hence, this petition.

8. Notice of motion in this petition, was issued on 21.01.2015 on the ground that there was non compliance of the provisions of Order V Rule 17 of the Code of Civil Procedure (CPC) inasmuch no effort was made to specify the names and addresses of the persons before whom, the house was identified and in whose presence, copies of the summons were affixed. It was further observed that from 14.01.2008 to 16.01.2008 were holidays. Hence, if these dates are excluded, application for setting aside of the exparte order was filed within 30 days from the date of knowledge i.e. 15.12.2007.

9. After hearing learned counsel for the parties, this petition deserves to be allowed. The first ground for settin