MAHAVIR PERSHAD Vs. GULAM DARAS KHAN

JUDGEMENT

(1.) C.R.P. No. 417 of 1992 was filed by the landlords against the order of the Chief Judge, City Small Causes Court, Hyderabad in R.A.197 of 1991 and C.R.P.No.917 of 1992 was filed by the tenants against the same order in R.A. No.l97of 1991 of the Chief Judge, City Small Causes Court, Hyderabad. As both the C.R.Ps. arise out of the same order and as the parties are common, they are being disposed of together by a common order.

(2.) The facts leading to the fifing of the above revisions may shorlty be stated below: The tenant was in occupation of the mulgi bearing M.No. 22-5-123/1 situated at Suraj Market, Gulzar House, Hyderabad along with some other mulgis belonging to the same landlords on a monthly rental of Rs.150/-. A rental agreement is in favour of G.D. Khan and Co. and the rent receipts are being issued in the name of G.D. Khan and Co. While so, the landlords filed an eviction petition R.C.No. 507 of 1990 for eviction of the tenant on the ground of wilful default in payment of rent for a period of 14 months, and 4 days. Summons were sent in the name of Gulam Daras Khan, who was shown as the respondent in the eviction petition. Twice, summons were taken out through the process server and by registered post and that the son of the respondent refused to receive the summons first time and thereafter received the summons on the second occasion and as the summons sent by the Registered Post were returned with an endorsement that they were refused, the tenant was setex parte and an ex pane eviction order was passed by the Rent Controller on 15-11-90. Pursuant to the ex parte order, the tenant was evicted from the suit mulgi on 5-3-1991. The tenant thereafter filed I.A.No.139 of 1991 under Rule 8 (3) of the A.P. Buildings (Lease, Rent and Eviction) Control Rules for setting aside the ex parte eviction order on the ground that summons in the eviction petition were notduly served on him and that he had no knowldge of the eviction proceedings and thathe came to know of the eviction proceedings only on 5-3-1991 when he was evicted by the bailif. The said application was opposed by the landlords stating that there was proper service of summons.

(3.) Before the Rent Controller, the tenant examined himself as PW.1 and marked Exs. P-1- to P-4. On behalf of the landlords, the 3rd petitioner in C.R.P.No. 417 of 1992 was examined a RW-1 and his manager as RW-2 and no documents were marked. Ona consideration of the material on record, the Rent Controller held that the tenanat's name was Gulam Dasthagiri Khan and that in the summons in the eviction petition, the tenant's name was wrongly mentioned as Gulam Daras Khan and that summons were issued in the wrong name, and the summons were not served on Gulam Dasthagiri Khan. It further held that though sommons were served on the son of the respondent, as he was below 21 years, such service is not valid and that the tenant has knowledge of the eviction proceedings only on 5-3-1991 when he was evicted and therefore, the application to set aside the ex parte eviction order is well within the time. Accordingly,he allowed the petition setting aside the ex parte order passed on 15-11-1990. In appeal preferred by the landlords in R.A.No.197 of 1991, the Appellate Court held that since the eviction petition was instituted and the summons were issued against the tenant under a wrong name and was not rectified even after the said discrepancy was pointed out by the process server and as the son of the respondent who received the summons i.e., Aizaj Khan was minor being aged 17 years, it cannot be said that the summons wereduly served on the tenant and that the tenant has no knowledge of the eviction proceedings since the eviction petition itself was instituted against one Daras Khan and not against the tenant Gulam Dasthagiri Khan and accordingly dismissed the appeal.