AMAR SINGH Vs. SHANTI DEVI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against the order of the Rent Control Tribunal (hereinafter referred to as the Tribunal) dated 30.11.1990 whereby the appeal filed by the petitioner against the order of the Additional Rent Controller (hereinafter referred to as the Controller) dated 24.11.1990 was dismissed.

(2.) The brief facts of the case are as follows :-

(3.) It was contended by the learned counsel for the petitioner that the petitioner came to know about the eviction petition only when he received notice of the execution for 10.8.1990 which was received by the wife of the petitioner. Learned counsel submitted that even in the execution petition, initially notice was served on the daugater Santosh Sharma on 1.3.90 for appearance on 9.3.90 however the particulars of the case and Court etc. were not given to the daughter and only her signatures were obtained. Therefore, the petitioner's counsel wrote a letter to the respondent seeking particulars of the case filed by the respondent against him for eviction. However, the respondent did not respond to this notice sent by the petitioner's counsel and did not furnish the particulars and only when the notice was served on the wife of the petitioner that he came to know about the execution proceedings and immediately on the next day he moved an application after taking inspection for setting aside the ex-parte decree. Learned counsel submitted that the service of summons on the son who is only 16 years old does not meet the requirement of law inasmuch as under Rule 15 of Order 5 of the Code it is only when a defendant is not available at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female who is residing with him. Thus, when it was found that the petitioner was not available on the day the service was sought to be effected, attempt should have been made once again to have it served on the petitioner personally before serving it on his son. Learned counsel submitted that the son is only 16 years old and he is not an adult member within the meaning of Rule 15 of Order 5 of the Code and thus service of summons on the son cannot be taken into consideration.