DURGA DUTTA (SM.) Vs. DALHOUSIE PROPERTIES LTD.

JUDGEMENT

(1.) This Rule was obtained by the Petitioner, who was one of the Defendants (Defendant No. 8) in the connected Ejectment Suit, against an order of the learned trial Judge, rejecting her application under Sec. 17(2) of the West Bengal Premises Tenancy Act, 1956, and also striking out her defence against ejectment under Sec. 17(3) of the said Act.

(2.) The point, now before us, requires only a short discussion and a short answer. It is contended before us by Mr. Banerjee, who appears for the Petitioner, that, in the instant case, there was no service of summons of the suit upon his client and that, in the circumstances, she was not under any obligation to deposit the amount in question, which fell due on account of rent or mesne profits, prior to her entering appearance, under Sec. 17(1) of the above Act; that, accordingly, there could be no non -compliance on her part with the said statutory provision, with the consequence that no penalty could be imposed on her under Sub -section (3) of Sec. 17 of the said Act.

(3.) It appears from the records that there was an order of the learned trial Judge, accepting the peon's return of service of summons on this Defendant as a valid return of due service and, upon that footing, the suit proceeded and the present order of the learned trial Judge also appears to have been passed on that footing. The relevant peon's return, however, does not seem to us to justify, such a conclusion. The service, according to the peon, was made by affixation after refusal of the Petitioner's summons by one of her adult brothers. The peon's return obviously proceeds under Rule 17, read with Rule 15 of Order 5 of the Code of Civil Procedure. The service; however, does not appear to have been effected or attempted at the residence of the Petitioner, as Petitioner's address as Defendant No. 8, as aforesaid, as given in the plaint, was not her residential address but her alleged business address. In these circumstances, Rule 15 of Order 5 of the Code of Civil Procedure would not apply to the instant case and the corresponding application of Rule 17 also would have to be ruled out. This was not disputed by Mr. Das who appears for the opposite party. But Mr. Das tried to justify the above service under Rule 14 of Order 5 of the Code of Civil Procedure upon the argument that the Petitioner's adult brother, to whom summons was tendered and who refused to accept the same, Was really her partner in the business and, more or less, the managing partner, who may well be held to be in charge of the disputed property and, accordingly, Rule 14 would apply to the instant case and validate the above service. The difficulty, however, in accepting the said submission lies in the fact that the said Rule postulates such service to be valid, only where it was impracticable to serve the Petitioner. There is nothing in the peon's return in the instant case to indicate that that was the position and nothing also has been placed before us to justify such a conclusion. In the circumstances, Rule 14 of Order 5 would have no application to the instant case and the disputed service cannot be validated under the said provision.