Dhirendra Nath Ghosh vs Purna Chandra Singha

This Rule is directed against an order made under the provisions of Section 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950. The application was made on June 20, 1951. The prayer was that an order in terms of Section 14(4) might be made on Defendants Nos. 3 to 13. It appears that, though the peon had sent in a return of service of the summonses in the suit on Defendants Nos. 1 and 2, that service was not considered satisfactory or sufficient in law by the court or the Plaintiff. The Plaintiff put in an application for service of fresh summonses on the Defendants Nos. 1 and 2 under the provisions of Order V, Rule 20 of the Code of Civil Procedure. An order was made thereupon to issue summonses under Order V, Rule 20 of the Code of Civil Procedure, but before service could be effected, the court took up for consideration the application u/s 14(4), on July 20, 1951, and made an order directing the Defendants Nos. 1 to 13 to deposit arrears of rent within fifteen days and also to continue to deposit the current rents month by month by the fifteenth day of the next following month.

The main ground on which this order is challenged as without jurisdiction or made in the irregular exercise of jurisdiction is that there had been no proper service on Defendants Nos. 1 and 2 at the time the order was made. It is contended by the learned advocate for the Petitioner that the whole scheme of the law in Section 14(4) is that after all the persons against whom ejectment is sought had opportunity to decide whether or not to contest that ejectment, the Plaintiff will have the right, if his prayer for ejectment is contested, to ask for an order for deposit of all arrears of rent and for an order of payment of current rent. While the section does not in terms say that the application can be made only after service of summonses on all the Defendants, it seems to us inherent in the scheme of the provision made in this Sub-section that there must first be service of the summonses on all the Defendants before the court can be in a position to consider and dispose of any such application by the Plaintiff. If it was open, as was suggested by Mr. Mookerjee on behalf of the opposite parties, for the Plaintiff to apply and for the court to allow an application for deposit of arrears of rent and payment of future rent as soon as one of, say, ten Defendants has appeared and contested the application, a very peculiar position will arise. For if thereafter a second Defendant appears and contests, there may and generally will be a second application by the Plaintiff and another order by the court. If the order is not carried out his defence against ejectment will be struck out. Thereafter another Defendant might appear and again contest the suit. Again, there will be an order on him to pay the entire amount in arrears and the entire rent month by month and if that is not done his defence will be struck out. The process may go on till all the Defendants have appeared. Such a procedure is unreasonable and should not be countenanced unless the words of the section compel us to do so. We find nothing in the section which indicates the legislature''s intention that as soon as a single tenant of many tenants has appeared the Plaintiff can make such an application and the court can make such an order in terms of Section 14(4) of the Act.

It is worth noting in this connection that in Sub-section (4) it is said that the court may make an Order for deposit of the rent. It does not seem judicial exercise of discretion to make such an order when some only of the Defendants have been served with summonses and the others have not yet had any opportunity of contesting the suit at all.

We have, therefore, come to the conclusion that an application of the Plaintiff landlord under the provisions of Section 14(4) of the Act cannot be entertained unless it appears that all the tenant Defendants have been served with summonses of the suit.

It has been contended by Mr. Mookerjee that the peon''s return of service that was made before the application for substituted service shows that there was good service, on Defendants Nos. 1 and 2. The report of the peon is to the effect that one of the Defendants being a zemindar did not come out of the house and that the other Defendant had gone to Calcutta and that in these circumstances the peon had tendered the processes to their officer who is described as (sic) and as the officer refused to receive the processes he served them by affixing them to the main door of the house. Whether the use of the word (sic) in this case is sufficient to show that the officer was authorised to accept the processes on behalf of the Defendants is a debatable question. The Plaintiff''s own conduct, however, in saying in the application for substituted service that the Defendants had been evading service and the statement in the affidavit in opposition that the summonses could not be served, give us good reason to think that the officer described as (sic) was not properly authorised to accept service on behalf of the Defendants. In these circumstances we have come to the conclusion that the case which was made by the Plaintiff himself in the application for substituted service was not made under any misapprehension as suggested by Mr. Mookerjee here, but was correct and that, in fact, there was no due service on Defendants Nos. 1 and 2 before the application for substituted service was made.

We have, therefore, reached the conclusion that the court acted irregularly in the exercise of its jurisdiction in making an order u/s 14(4) of the Act before some of the Defendants had not been served with summonses of the suit.

In this view, we set aside the order passed by him, and order that the application u/s 14(4), which was made before the service of summonses on all the Defendants be rejected. It will be open to the Plaintiff to make fresh application, under Sub-section (4) of Section 14, after service has been effected on all the Defendants.

The Rule is, accordingly, made absolute. The parties will bear their own costs.