1989 Supreme(MP) 553

IN THE HIGH COURT OF MADHYA PRADESH
S. Awasthy, J.
Baldeo - Appellant
Vs.
Smt. Manoram Bawari - Respondent
C. R. No. 353 of 1987 (J)
Decided On : 18-02-1989

Headnote:(1) Civil Procedure Code, 1908 – O.5, R.17 and 18 – refusal of service denied by defendant – endorsement of process server alleged to be false – enquiry should be made.

       (2) Accommodation Control Act, 1961 (M.P.) – S.23 – C – non – applicant denying to be tenant of applicant – leave to defend should be granted.

        Short Note

       This revision petition has been filed against the order, dated 20th July, 1987, passed by the Rent Controlling Authority. Ambikapur, in R. C. No. 9/B – 121/86 – 87. The Rent Controlling Authority proceeded against the applicant (herein) exparte and did not give him an opportunity to prove want of service of notice and further to defend his case.

       2. The applicant (herein) is alleged to be (he tenant of the suit premises where he is alleged to be running a shop. The defence of the applicant is that his father and not he is the tenant who has not been made a tenant in the suit. The summons of the case were not served on any member of his family. The endorsement made by the Process Server regarding refusal to accept notice is false. On getting knowledge of the proceedings he appeared and filed an application for leave to defend, but the said application was also rejected on flimsy grounds, which is not according to law.

       3. Held: After having heard the arguments of the parties, I am of the view that the revision must be allowed. The case of the applicant (herein) is that the endorsement made by Process Server is false. No notice was tendered. In view of this statement, the learned Rent Controlling Authority should have given an opportunity to the applicant (herein) to prove his contentions. Without giving him the said opportunity, the learned Rent Controlling Authority was not justified in holding that the service of the summons was refused by the applicant or any member of his family. That order has, therefore, been passed by irregular exercise of jurisdiction; hence liable to be set aside. In case, the Rent Controlling Authority comes to the conclusion that the submission of the applicant is true then he shall hear him with open mind regarding the grounds of defence which he wishes to raise in the case. In that case question of limitation would not come in his way nor would he be shut from establishing his defence, as he alleges that he is not the tenant of the non – applicant (herein). If he establishes that plea no decree can be passed against him; hence that plea needs serious consideration. The Rent Controlling Authority shall apply its mind afresh to the facts of the case and pass the order according to law as laid down in the case of Matadeen v. Ashok Kumar (1985 JLJ 134). Revision allowed.