GIRDHARI LAL Vs. AJAY KUMAR JAIN

JUDGEMENT

(1.) THE petitioner was ejected from the shop in dispute on December 16, 1969 in execution of the ex parte order dated February 5, 1979. He, therefore, moved this application on the next day for setting aside the said order alleging that the same had been secured on false and baseless report and that no summons of the court was ever presented to him nor he refused to accept any. The respondent opposed the application and controverted the averments made therein. The learned Rent Controller after recording evidence of the parties declined the prayer holding that the petitioner had refused to accept service and the application was barred by limitation. Aggrieved thereby, the tenant has come up in this revision.

(2.) THE petition for ejectment was registered on July 30, 1978 and notice ordered to be issued to the tenant for September 11, 1978 through ordinary process as well as registered post. No summons was, however, sent through registered post. On the usual summons, Process Server Mangat Ram made a report that the petitioner has refused to accept service and the copy of the petition was pasted at the outer door of the shop on September 8, 1978, i.e. two days prior to the date fixed in the case. On the basis of this report, ex parte proceedings were taken against the petitioner and after recording statement of the Mukhtiar of respondent ejectment order passed on February 5, 1979.

(3.) AS would be evident from the facts and circumstances mentioned hereinafter, the conduct of the Mukhtiar of the landlord in securing the ejectment order and possession of the shop in dispute was nothing short of fraud and abuse of the process of the Court. The practice of getting ex parte judgments and decrees through the means of false reports of refusal of service was becoming very frequent and in order to avoid this mischief, the Legislature introduced Rule 19-A in Order 5, Civil Procedure Code, making it mandatory on the court to issue summons by registered post acknowledgment due in addition to the ordinary manner of issuing summons. In the present case, although the Rent Controller ordered the summons to be also issued through registered post but the landlord never supplied registered covers and no summons was consequently sent through post. This was very significant circumstance indicating the intention of the respondent from the very beginning to adopt a device for securing ex parte ejectment order. The learned Rent Controller ignored this circumstance with the observation that as the provision of the Civil Procedure Code did not apply to the proceedings before the Rent Controller the non-sending of the summons through registered post was of no consequence. He however, completely forgot that the Rent Controller had in fact ordered the summons to be sent through registered post as well and once it had been so ordered the Rent Controller was bound to issue summons through registered post before ordering ex parte proceedings against the tenant.