LACHML ALIAS LUXMI KUMARSOMAN Vs. SHEO KRISHNA NATHANI

JUDGEMENT

(1.) THE instant application for revision is directed against the order dated 10th July, 1979 passed by Shri M. Roy, Judge, 5th Bench of the City Civil court at Calcutta, rejecting the application under section 17 (2) and 17 (2a) (B) of the west Bengal premises Tenancy Act, 1956, en the ground that those were barred by time. The moot question in this case is pointed out by the learned Judge was what was the date of service of summons on the tenant defendant. According to the plaintiff opposite party there had been a personal service effected on 19th July, 1978, whereas the tenant defendant alleged that such summons had never been served on him and that one through registered post was served on 2nd of December, 1978.

(2.) IN order to find the actual date of service the learned Court below considered the evidence adduced on behalf of the plaintiff landlord, P. W. 1, Tarak Banerjee, the bailiff of the Court deposed that he had effected the personal service of the summons on the defendant on 19. 7. 78. P. W. 2, mirza N. H. Beg who was the Naib Nazir of the Court had no personal knowledge. But the teamed Court below considered the diary of the Court bailiff and his endorsement in the peon book and the relevant entries in the book of the nazarat, vide, exhibits 1,2. 3 and 3a. On the evidence both oral and documentary the learned judge held that there had been personal service on the defendant on 19. 7,78. In the face of these materials the learned judge was not prepared to accept the interested testimony of the defendant.

(3.) MR. Tapandeb Nandi, learned advocate for the petitioner points out at the out set that the service of summons in this case cannot be accepted as there was no simultaneous issue of summons under order 5 rule 19 and Order 5 rule 19a. He relies on the decision in the case of Tamluk workers Transport Pvt. Ltd, v, Milan Kumar maity reported in 1980 (11) Calcutta High court Notes. In this case, the service by affixation was effected on April 3,1978 and summons by registered post were ordered to be issued on April 24, 1978. Accordingly, it was held that the provision of order 5 rule 19a was not complied with but in the instant case the facts were other wise. In this case there was an order by the Court for simultaneous issue of summons both under order 5 rule 19 and order J rule 19a. It appears that though there was such an order there was some delay on the part of the plaintiff landlord to issue summons by registered post. In this view of the matter, it cannot be said that the Court failed to make necessary order as contemplated under the law.