Sobhagmal vs Rajkumar Pande - 1986 Supreme(MP) 646

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Applicant : P.K. Joshi.
For the Non-applicant : D.P. Vohra.

Headnote:(1) Civil Procedure Code, 1908 – O. 5 – provisions not complied with while effecting service of summons – summons cannot be said to have been effectively served.
       (2) Accommodation Control Act, 1961 (M. P.) – S. 23 – C – application for leave to defend filed beyond prescribed period – summons not served effectively – matter should be enquired into.
        Short Note
       1. This revision under Sec. 23 E (2) of the M. P. Accommodation Control Act, 1961, has been filed by the defendant against the order dated 3 – 12 – 84 passed by the Rent Controlling Authority, Indore in case No. 283/84, refusing leave to defend and directing his eviction from the suit accommodation.
       2. Learned counsel for the applicant submits that the Authority erred in exercise of its jurisdiction to refuse leave to defend when an application supported by an affidavit had been filed to show that the applicant – tenant was not properly served with the notice of the application as he was out of station.
       3. Learned counsel for the applicant submits that notice was not served personally and was affixed on the outer door of house No. 47 which is neither the number of the accommodation – in – question nor the number of the house where the applicant normally resides or carries on busineS. According to, him there was no counter affidavit and no material before the Authority which could warrant rejection of his application for leave to defend. There was sufficient cause for the delay and the Authority ought to have granted leave to defend him.
       4. Held : Learned counsel for the applicant showed me the copy of the notice which was affixed on the outer door of house No. 47, Prince Yeshwant Niwas Road, Indore. It is not disputed that this is not the house number of the suit accommodation. There was thus, non – compliance with the provisions O. 5, CPC with regard to effective service of the summons, on the present applicant.
       5. The Rent Controlling Authority was, therefore, duty bound to consider the application for condonation of delay before rejecting his prayer for leave to defend.
       6. Since there is non – compliance with the statutory provision resulting in prejudice to the applicant, the impugned order is set aside. The case is now sent back to the Rent Controlling Authority, Indore for re – examining the correctness and propriety of the application made by the present applicant – tenant for condonation of delay and for leave to defend. It will dispose of that application on merits after hearing both the parties and with advertance to the provisions of O. 5, C. P. C. Revision allowed.