KARNAIL SINGH Vs. DINA NATH

JUDGEMENT

(1.) ON 13th February, 1974, Dina Nath and other landlords filed a civil suit for ejectment of Karnail Singh tenant from a shop after the tenancy stood terminated. In that suit an ex parte decree of ejectment was passed on 21st September, 1974. On 3rd March, 1975 the petitioner-tenant filed an application under Order 9 Rule 13 of the Civil Procedure Code ('hereinafter called the Code'), for setting aside the ex parte decree, wherein specific averments were made that a Bailiff came to the premises on 1st March, 1975 to execute the ejectment order from whom he came to know about the ex parte decree, then he went to the Court and found out from the file of the Court the detailed facts. In the application it was specifically pleaded that he was never served with the summons of the suit; that he never refused to accept notice and that the report of service of summons was fake and since he has not served, the ex parte decree deserved to be set aside. The landlords did not give specific reply and made evasive denial. Of course it was pleaded that service was effected and the application was time barred. On the issues framed in the case, the parties led evidence. The tenant appeared as his own witness and stated that he was never served with any summons that he never refused to receive any summons and no process server ever visited his shop. He also stated that he came to know of the ex parte decree on 1st March 1975. The only cross-examination directed was to the effect that whether any government official ever came to him before the bailiff came to execute the decree. The reply was in the negative. The other question put was whether he knew Bhagat Ram. His reply was in the negative. Bhagat Ram is one of the 10 landlords. He was not cross-examined that he was telling a lie to the effect that he was never served with summons that he never refused to receive summons or that the summons were not pasted on his shop, after the refusal of service. He was also not cross-examined that he was giving false statement to the effect that he came to know of the ex parte decree on 1st March, 1975. Hence his statement made in examination-in-chief remained uncontroverted.

(2.) OUT of the 10 landlords Bhagat Ram appeared as the only witness and stated he had accompanied the process-server and in his presence the summons were offered to the tenant and when he refused to accept a report to that effect was made by the Process-Server. He was cross-examined and the cross-examination clearly shows that this witness was dubbed as a liar. Apart from the aforesaid oral evidence, the report made by the Process-Server on the summons and the affidavit filed by him in support of his report, were taken notice of by the trial Court and it preferred to rely on the statement of Bhagat Ram and sought support from the affidavit and the report of the Process-Server appended on the summons. As a result, it was concluded that the tenant was duly served and the application was time barred. Consequently, the application was dismissed. The tenant's appeal remained unsuccessful before the additional District Judge, who adopted the same reasoning. This is revision by the tenant.

(3.) . To rebut the onus, it was necessary to produce the Bailiff in Court so that in case he made statement against the tenant, he could be cross-examined by him. The non-production of Bailiff in Court goes a long way against the landlords.