T C BANERJEE Vs. B V S RAO

JUDGEMENT

(1.) The delay in moving the application under Section 115 of the Code of Civil Procedure in the circumstances is condoned and by consent of parties the application under Section 115, Civil Procedure Code is taken up for hearing.

(2.) This Rule has been directed against an order (No. 30) dated 7-6-1974 whereby plaintiff's application under Section 17 (3) of the West Bengal Premises Tenancy Act was rejected.

(3.) The facts relevant are in short as follows. The plaintiff as landlord instituted a suit for recovery of possession of the suit premises on eviction of the defendant therefrom which the defendant held as a monthly tenant. The summons in the suit was sought to be served in the usual manner but the process server submitted a report to the effect that on August 22, 1972 he went to the suit premises and tendered the summons to the opposite party. As the opposite party refused to accept the summons by acknowledging receipt thereof the process server served the same by hanging on the outer door of the suit premises. Thereafter by order dated 14-9-72 the learned Munsif recorded that service of summons was not satisfactory and on the petition of the plaintiff-petitioner the summons was directed to be served by registered post with acknowledgment due. The opposite party, however, refused to accept the summons sent under registered post and it came back with the endorsement of the postman as "refused" bearing date 29-9-1972. The petitioner's case is that the opposite party did not deposit the rent in court within 30 days from the date of the refusal. On that basis he filed the application under Section 17 (3) for striking out defence against delivery of possession. This application was rejected by the impugned order.