BENGAL CHAND COMPANY Vs. DURGA SANKAR GOURI SANKAR

JUDGEMENT

(1.) This Rule was issued at the instance of: Defendant in connection with an Order IX, Rule 13 proceeding arising out of an ejectment suit pending before the Court of Small Causes, Calcutta.

(2.) It is unnecessary for me to enter into the facts of the cast except those relating to service of summons on the Defendant In the present case, it is admitted on behalf of the Plaintiff by all his witnesses that the Defendant was absent and no attempt was made to find out whether it would be practicable to serve the summons on the Defendant. The return of service does not show that it was not practicable. The evidence does not show that it was not practicable and the judgment of the learned Judge does not show that it was not practicable. It is also admitted on behalf of the Plaintiff in the evidence that there was no agent empowered to accept service. The case on behalf of the Plaintiff was that there was an agent in charge of the property at the time of the absence of the Defendant. There can be no question of application of Order V, Rule 14 before it has been shown that Order V, Rule 12 cannot be complied with. No attempt was made to do so. The learned Judge entirely overlooked this point. The learned Judge seems to be under the impression that, if summons has not been legally served, knowledge on the part of the Defendant will be quite sufficient. That is wrong. It is the service of summons in accordance with law that gives jurisdiction to the court over the person summoned. If the court does not have jurisdiction, it is immaterial whether the Defendant knows about a suit going on without jurisdiction. It appears that, in the present case, a registered letter was issued under Rule 29, Pt. III, Chapter V of the Small Cause Court Rules. It has been rightly pointed out by Mr. Sen, appearing on behalf of the Petitioner, that the learned Judges of the Small Causes Court are not aware of the change in the law. Ejectment suits, after the Rent Control Act of 1950, are tried as civil court judges by these learned judges of the Small Causes Court. Therefore, the procedure to be followed by them will be the procedure as laid down under the Code of Civil Procedure and not under the rules governing Small Causes Court Judges. It is time that the Small Cause Court Judges took notice of the change in the law and followed the law as laid down in the Code of Civil Procedure.

(3.) The next question that arises is whether a revision lies. As the illegality in the service of process did not give the court jurisdiction over the Defendant, it is a question of material irregularity in the exercise of jurisdiction. Therefore, this Court can revise the order under Section 115, Code of Civil Procedure, as there was no proper service of process on the Defendant. The order of the Small Causes Court Judge dismissing the Order IX, Rule 13 petition is set aside and, consequential thereto, the ex parte decree in the suit is set aside.