AJAI SINGH Vs. GURINDER SINGH AND ORS.

JUDGEMENT

(1.) THE trial of rent petition that had been set up in a time capsule by a direction given by this Hon'ble High Court that it shall be concluded before 31.05,2009 met with a stumbling block, not merely at the instance of the tenant but by the landlord himself, who after a direction from the High Court, moved an application to implead as parties two sons of the respondent, who also had been originally described as the tenant.

(2.) ON summons being sought to be served on respondent Nos. 2 and 3, after the application for impleadment was ordered, they had not been actually served on the parties. Learned Senior Counsel for the respondent would be quick to point out mat it is not admitted but still the fact remains that the parties were not served and it was on record that the respective spouses had declined the service stating that the parties were at time at Dubai and Goa respectively. The Court, on return of the summons from the bailiff with the endorsement that they were refused to be served did not immediately treat the service as sufficient. It directed that summons shall be served though issuance of munadi and affixture. The order was passed on 25.2.2009 and on 2.3.2009, when the case was called again, the Court noted that the respondents No. 2 and 3 did not turn up despite service and they were, therefore, proceeded ex parte. On the subsequent date of hearing, the statement of the first respondent had been received for the amended petition and the case was posted further to 24.03.2009, when the petitioner's witness Vinod Kumar had been examined and cross -examination was completed on 1.4.2009.

(3.) IN revision, the learned Counsel for the petitioner states that the zimni orders of the Court would clearly reveal that the actual service of summons had not been effected and when the bailiffs return was that the petitioner was away at Dubai and that he would be back only on 6.3.2009, the Court that allowed issuance of munadi could not have fixed a date earlier than 6.3.2009 and take the non -appearance on that date as unjustified to set him ex parte. According to him, the order passed on 2.3.2009 taking the munadi summons as duly served was wrong. Learned Senior Counsel for the respondent has very strong objections to every one of the contentions urged on behalf of learned Counsel for the petitioner. He would point out to the fact that the direction from this Court for quick disposal before 31.5.2009 was itself on account of the fact that the petitioner was retiring on 28.02.2009. He also refers to the evidence of the mother, the 1st respondent, where she had admitted that it was the son who was assisting her in engaging a counsel and preparing the statement for her and the 2nd respondent, who had such knowledge of the proceedings was deliberately keeping away from the process of court, waiting on the wings, as it were, to enter the fray at a belated stage only to cause a further delay in the proceedings. Learned Counsel for the respondent would refer to the decision of the Hon'ble Supreme Court in Arjun Singh v. Mohindra Kumar and Ors. : A.I.R. 1964 S.C. 993 that spelt out the distinction between procedure prescribed under Order 9 Rule 7 and Rule 13 and referring to the expression "good cause" and "sufficient cause" employed by the respective provisions, the Court still held that there could not "good cause", which would not "be sufficient" as affording an explanation for non -appearance. He would also cite Vijay Kumar Madan v. R.N. Gupta Technical Education Society, 2002 (1) R.C.R. (Rent) 560 to point out that after all, even without setting aside the ex parte order, he could be allowed to participate in the trial. An application under Rule 7 itself is itself required to be made only if the defendant wishes to be relegate back and re -open the proceedings. Further, to the learned Senior Counsel for the respondent, by the fact that the bailiff had noted the service by refusal, it was itself sufficient for the Court to set him ex parte and the issuance of summons by munadi was superfluous and in the nature of surplus age and the Court setting a date of hearing on 2.3.2009 could not be found fault with. He also referred to a particular factual situation that the landlord himself, who had been examined, had been residing at Mauritious and had gone back, after being in India only for the purpose of giving evidence in Court. The attempt of the petitioner according to the learned Senior Counsel for landlord, was to cause needless hardship knowing fully well that the evidence of PW -1, Gurinder Singh, had been completed setting aside the ex parte order meant re -opening the trial. He would also urge that the mala fides of the petitioner is evident also by the fact that the other brother had deliberately still remained ex parte and no steps have been taken so far to set aside the ex parte order only to avail of opportunity independently to re -open the case by a similar application later and further delay the trial.