RAJ KUMAR DAS Vs. DIBAKAR NATH

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India challenging the order No. 103 dated 17th January, 2012 passed by the ld. Civil Judge (Junior Division) 3rd Court at Alipore, in Misc. Case No. 59/1999 arising out of T.S. No. 72/1998. It is the case of the petitioner that they being landlords filed said suit for eviction on the ground of default and reasonable requirement against the O.P.s. being tenants. It is further case that in spite of service of summons none of the O.P. defendants appeared and the suit proceeded ex parte and aside. The petitioner plaintiffs contested said misc. case by filing written objection denying material allegations of the same. However, Ld. Trial Court allowed said misc. case by the order impugned dated 1ultimately decreed on 19th April, 1999. Later on one of the defendants being O.P. No. 1 filed a misc. case under Order 9 Rule 13 of the Code of Civil Procedure alleging that no notice was served and that the ex parte decree dated 19th April, 1999 should be set 7th January, 2012. Being aggrieved with said order of allowing said misc. case the present revisional application has been filed.

(2.) Mr. Bhattacharya appearing for the petitioner plaintiff's submits that notices were sent to the O.P. defendants through process server as well as through registered post. According to him the summons sent under registered post with a/d returned with postal endorsement "not claimed" which amounts to good service. He next submits that the notice sent through process server returned unserved as the suit shop room was lying closed and that the Court being satisfied issue substituted service under Order 5 Rule 20 of the Code of Civil Procedure. According to him the process server again found the suit shop room closed and execute the same by hanging. He submits that in this case the petitioner put said ex parte decree for execution through execution case No. 11/1999 and that ultimately it was executed by delivery of possession of suit shop room by breaking over padlock on 15th September, 1999. In support of his contention he refers a case law reported in 2011 (2) ICC 769 (Ganesh Chandra Ghosh @ Ganesh Ghosh & Ors. vs. Jita Rani Ghosh & Gita Rani Ghosh).

(3.) Mr. Basu appearing for the O.P. defendant No. 1 submits that there was no materials on record to show that the summon was ever served either upon O.P. defendant No. 1 or on other defendants. He submits that the father of the O.Ps. was the original tenants and that during his life time he permitted the O.P. defendant No. 1 to run the business in the suit shop room with an intimation to the petitioner landlords. He further submits that the report of the process server only shows that when the process server went to the locale to cause service the suit shop room was under lock and key. In this connection he draws the attention of this Court to the relevant report of the process server as well as the averments made in the application under Order 9 Rule 13 of the Code of Civil Procedure and the written objection thereof to highlight that the suit shop room was in the running condition at the relevant period and that process server only found that it was under lock and key when he went to the locale. According to him though the ld. Trial Court issued notice under Order 5 Rule 20 of the Code of Civil Procedure but the necessary conditions for issuance notice under that provision were not fulfilled. In support of his contention he refers case law reported in : 2002 AIR(SC) 2370 (Sushil Kumar Sabharwal vs. Gurpreed Singh & Ors., 2011 4 CalHN 195 (Siba Prasad Saha vs. Gouranga Mohan Saha,2001 2 CalHN 542 (Shiw Murat Sharma vs. Allahabad Bank, 1979 AIR(AP) 180 (Bondla Ramalingam vs. Shiv Balasiddiah).