Gurdeep Kaur vs Vinod Kumar Lamba and Another

V.K. Bali, J.—Pritam Singh, whose where-abouts were unknown, was proceeded against ex-parte after making some attempts to serve him at his residential address, House No. 1678, Sector 22-B, Chandigarh. The petition moved by the respondent-landlord, Vinod Kumar Lamba was with a view to seek eviction of the tenant, Pritam Singh from the premises in which he was inducted as tenant through a lease deed dated November 20, 1986 in S.C.F. 10, Sector 22-D Chandigarh. The wife of the tenant, Pritam Singh filed two applications, one for setting aside ex-parte proceedings against her husband Pritam Singh and the other from impleading her as a party-respondent in the petition for eviction. The learned Rent Controller after getting reply of both the applications from the respondent-landlord dismissed the same primarily on the ground that Gurdeep Kaur, wife of tenant had no locus standi to move the applications, referred to above as she had no authority on the basis of which she could file applications on behalf of the tenant. It was held that she was not authorised by the respondent to file any application on his behalf and she was also not attorney of the respondent. Having found so, the grounds on which Gurdeep Kaur had prayed for setting aside the ex-parte proceedings, were not gone into at all. On the parity of same reasoning, application under Order 1 Rule 10 of the CPC was also dismissed.

Petitioner, Gurdeep Kaur takes exception to the order vide which ex-parte proceedings were ordered against her husband, Pritam Singh as also the order declining to implead her as a party and setting aside the aforesaid order of ex-parte proceedings vide this civil revision No. 1172 of 1992.

This revision petition came up for motion hearing on April 9, 1992 and was adjourned to April 21, 1992. However, it appears that the matter was taken up on April 10, 1992 before the date fixed by this Court and notice of motion was issued for May 7, 1992. Passing of the final order was also stayed till further orders

Even though the orders rejecting two applications, referred to above, were passed on April 1, 1992 and the High Court stayed further proceedings on April 10, 1992, the respondent-landlord meanwhile concluded his evidence by April 9, 1992 by examining himself as his own witness and obtained an order of eviction on April 10, 1992, the same day when the High Court stayed further proceedings in the main case. The case of the petitioner is that by the time the order passed by the High Court could be brought to the notice of the learned Rent controller, the eviction order had been passed. Aggrieved, the petitioner carried an appeal against the ex-parte eviction order before the Appellate Authority but the same was dismissed on April 28, 1992. Civil Revision No. 1325 of 1992 has been filed in this court against the above order of eviction.

Both the revisions were ordered to be decided together by the motion bench vide orders stated May 12, 1992. Thus, this order will dispose of both the Civil Revision Nos. 1172 of 1992 and 1325 of 1992.

Before the matter is proceeded any further, it will be useful to see as to in what exact circumstances tenant Pritam Singh was proceeded against ex-parte. The petition for eviction after institution came up for hearing before the Rent Controller on May 13, 1991 when the following order was passed:-

"Report of office perused. Petition be registered and indexed. Notice to respondent be issued for 30.7.1991 on filing of P.P. etc. within 5 days.

As has been mentioned above, an attempt was made to serve the tenant at his residential address and not at the address where he was carrying on the business i.e. S.C.F. 10, Sector 22-D, Chandigarh, which also is the tenanted premises. However, the summons were received back with the report that some lady had met the process server at the house in question and she had stated that previously the tenant was residing there but now he is not residing there. The file that has been received from the Rent Controller has an endorsement "not served" in the space which is on the left hand side where the first order, reproduced above, was passed.

Even though such was the report of the process server, the respondent-landlord on the adjourned date of hearing i.e. July 30, 1991, moved an application to summon the tenant by substituted service i,e. through proclamation (Munadi). The averments made in the application make an interesting reading. In para 2 of the application it has been averred that the landlord had fried to serve Pritam Singh respondent on a number of occasions but it was found that his whereabouts were not known and the shop is not being run by him in these days. A mention regarding whereabouts of Pritam Singh being unknown is also made in para 3 of the application. It has further been mentioned in the aforesaid para that in the absence of address and whereabouts of Pritam Singh, it shall not be possible for the landlord to effect service upon the tenant. It is stated thereafter in the prayer clause that in the interest of justice the respondent may be served through proclamation (Munadi). The Rent Controller, before whom the matter was pending and came up for hearing on July 30, 1991 rightly held that the request of landlord could not be accepted as till such time it was proved that the respondent was evading service, substituted service could not be ordered. The order dated July 30, 1991 which has bearing upon the controversy involved in this petition, reads as follows :-

"Today the petition was fixed for summoning of the respondent but, summons have been received back with the report that some lady met at the house in question and she stated that the respondent previously was residing there but now, he was not residing there. The petitioner has filed an application to effect service upon the respondent through Munadi but, the request of petitioner cannot be accepted at this stage because unless and until it appears to the court that respondent is evading service, substituted service cannot be ordered to be effected upon the respondent. Summons were issued for the first time to the respondent today and it cannot be presumed that the respondent is avoiding service. The petitioner has mentioned in the application that whereabouts of Pritam Singh are not known to him. It means that the petitioner was knowing that the respondent is not residing there and has filed a wrong petition. It is clearly alleged in para 2 of the application that some other person is running the shop in place of the respondent. But why that person has not been impleaded as Party is best known to the petitioner. Moreover, it is altogether wrong as alleged by the petitioner that service was tried to be effected upon the respondent on a number of times because as already mentioned above, summons have been issued to the respondent for the first time for today. So, the application is rejected. Now, for summoning of the respondent, petition is adjourned to 20.9.1991. No short date is possible as the cause list is already full and preference is being given to old cases. F.F./RC and correct address etc. be filed within 5 days."

(Grammatical mistakes corrected).

In the margin on the left hand side of the order aforesaid, an endorsement of the official of the Court is "PF filed RC not filed." When the matter came up for hearing on the adjourned date i.e. September 20, 1991, the Rent Controller passed the following orders:-

" Today the petition was fixed for summoning of the respondent R.C. was not filed by the petitioner in Court but was sent straightway to the respondent and receipt is shown today for the first time. It, was not informed earlier that the RC alongwith AD had been sent to the respondent or not whereas the petitioner should have filed the same in the Court but even then the Ahlmad has not issued the. summons in the ordinary course. Let his explanation be called for separately. In these circumstances munadi cannot be issued against the respondent as requested by the petitioner''s counsel. Substituted service can also not be allowed in such circumstances. The petition is adjourned to 1.11.1991 for the summoning of the respondent on filing of RC within 5 days and on PPF."

In the space on the left hand side, (here is an endorsement of the official of the court "not served". The adjourned date, however, turned out to be a day when the lawyers were observing strike. That being so, the Rent Controller, ordered as follows:

"As the Advocates are on strike, so no proceedings are, to be carried out. This case is adjourned to 16.1.1992 for the purpose already fixed. Counsel for the parties be informed."

Once again in the space that appears on the left hand side of the aforesaid order, there is an endorsement of the official of the court as "not served." The adjourned date once again happened to be a day when the lawyers were observing strike and, therefore, the Rent Controller passed the following orders:-

"As advocates are on strike, so no proceedings can be carried out. This case is adjourned to 6.2.1992 for the purpose already fixed. Counsel for the petitioner be informed."

Once again on the space appearing on the left hand side of the order aforesaid, the endorsement of the court official is "respondent not served."

The sequence of events and the various orders reproduced above, thus, clearly demonstrate that the respondent was not served by February 6, 1992 as also that his whereabouts were concededly unknown as also that in the circumstances aforesaid the Rent Controller had passed a detailed order rejecting the prayer of the landlord so as to summon Pritam Singh by substituted service. Contrary to the earlier view of the Rent Controller, when the matter came up for hearing before him on February 6, 1992. Pritam Singh was ordered to be summoned through proclamation. There was no prayer of the landlord even orally made to summon Pritam Singh through substituted service on the assertion that he was evading service and obviously there was no application as well and yet the Rent Controller passed the following orders:-

"Summons issued to the respondent received back unserved. Summons were sent to the respondent so many times but the service has not been effected upon him. It appears that he cannot be served through ordinary course. So, the respondent be summoned through munadi for 4.3.1992 on filing of PF, MF within 5 days.

Substituted service as per provision contained in Order 5 Rule 20 can be ordered only if the respondent is keeping out of way for the purpose of avoiding service or if for any other reason the summons cannot be served in ordinary course. The Court has necessarily to record its satisfaction that the defendant is keeping out of the way for the purpose of avoiding service. Mr. Arun Jain, learned counsel appearing for the petitioner rightly contends that Pritam Singh, tenant of the premises in dispute was proceeded against ex-parte in a wholly illegal manner as not only that the provisions of Order 5 Rule 20 of the CPC were not kept in view but also the order for proceeding ex-parte was contrary to the order dated July 30, 1991. Mr. S.C. Kapoor, learned Senior Advocate appearing for the respondent has addressed no meaningful arguments which may persuade me to take a different view. It is, thus, held that the ex-parte proceedings initiated against Pritam Singh were wholly illegal and without jurisdiction.

The matter does not, however, end here, as the real controversy in the present petition is as to whether applications filed by Gurdeep Kaur were rightly rejected or that she was a necessary and proper party, who had to be impleaded when whereabouts of her husband, who was tenant of the demised premises, were unknown. Learned Rent Controller, as referred to above, has dismissed both the applications i.e. one under Order 9 Rule 7 of the CPC for setting aside the ex-parte proceedings and the order filed for impleading Gurdeep Kaur as party-respondent, under Order 1 Rule 10 of the CPC on the ground that she had no locus standi to maintain either of the applications.

Before, however, the question posed aforesaid is answered, it shall be useful to see the provisions of the CPC for effecting service when whereabouts of the parties to the litigation are unknown or where service cannot be made or the defendant in person. Rules 13, 14 and 15 of Order 5, which cover to quite an extent the situation as is confronting the parties and the court herein, require a specific mention. The same are reproduced as under:-

" 13.Service on agent by whom defendant carries on business:-(1) In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service.

(2) for the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or charterer.

Service on agent in charge in suits for immovable property.

Where in a suit to obtain relief respecting or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property.

Where service may he on an adult member of defendant''s family:- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him."

Wherever it is practicable, service has to be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent has to be considered as sufficient. This on the normal mode of service. Rules 13, 14 and 15 of Order 5 deal with the situation where the service on defendant in person is not practicable in a suit relation to any business or work who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, the service on any manager or agent, who, at the time of service, is deemed to be good service. When the subject matter of the suit is with regard to the immovable property and the service cannot be made on the defendant in person and there is no agent of the defendant available, those, who are in charge of the property, have to be served. Rules 13 and 14 of Order 5, thus, deal with specific kind of cases but Rule 15 of Order 5 is general in nature and when the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Present, thus, was not a case where ex-parte proceedings could be resorted to without making an attempt to serve those who were in possession of the property as also to hold that petitioner Gurdeep Kaur had no locus standi to move an application under Order 1 Rule 10 of the CPC or to maintain the application for setting ex-parte proceedings aside.

Unfortunately, the attention of the Court was, at no stage, invited to the aforesaid provisions of the Code of Civil Procedure. Learned counsel appearing for the parties even in this Court remained remiss in pointing out the relevant provisions dealing with the situation in hand. There are provisions in the CPC under Order 3 which deal specifically with regard to the persons, who can be considered as recognised agents and appearances can be put in by them. Once again, the counsel appearing for the parties have not chosen to place any reliance upon the provisions. General rule of course is that any appearance, application or act in or to any Court required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader but Rule 2 of Order 3 defines the recognised agents. Sub-rule (b) of Rule 2 of the above said order also includes the persons carrying on trade or business for and in the names of parties not residing within the local limits of the jurisdiction of the Court, within which limits of the jurisdiction of the Court, within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts. Service on the agent of a party is as effectual as if the same had been served on the party in person as per Rule 3 of Order 3 of the Code of Civil Procedure. The specific case of the petitioner in her applications filed under Order 9 of Rule 7 and Order 1 Rule 10 of the CPC is that she was carrying on the business presently as also when her husband was residing at Chandigarh. It has further been pleaded by her that in an earlier petition filed by the landlord against Pritam Singh, which was pending in the court of Shri N.K. Bansal, Rent Controller, Chandigarh, she was appearing and contesting the matter as her husband was abducted on March 17, 1991 and the mailer was duly reported to the police of police Station Sector 22 vide DDP No. 6 dated March 18, 1991. Pritam Singh, it was further pleaded, had neither been heard nor seen by her or any person including relations of Pritam Singh despite continuous efforts made to trace his out ever since March 17, 1991. It was further pleaded that since the inception of Tenancy she used to sit and work in the tenanted premises with her husband, Pritam Singh and after that she was carrying on the business alongwith her son Harvinder Singh continuously as before''

The fact that whereabouts of Pritam Singh were not known, as referred to above, were not even disputed by the respondent-landlord. In fact in his own application for serving Pritam Singh through substituted service it was clearly averred that his whereabouts were not known. Learned Rent Controller also in his order dated July 30, 1991 had mentioned that even though it was stated in para 2 of the application that some other persons were running the shop in place of Pritam Singh, no person had been impleaded as party of Pritam Singh, no person had been impleaded as party in this case for the reasons best known to the petitioner. Viewed in the light of the events quoted above as also the pleadings of the parties as also provisions of the C.P.C as referred to above and order of Rent Controller dated July 30, 1991, it could not be said that Gurdeep Kaur was neither a necessary nor a proper party.

If the matter is tested on the anvil of case law, it shall again be clear that Gurdeep Kaur was both, necessary and proper party. Supreme Court in Smt. Pushpa Devi and others Vs. Milkhi Ram (Dead) by his L.Rs., while dealing with the ''tenant'' as defined u/s 2(h)(i) of the East Punjab Urban Rent Restriction Act, 1949 held that the person claiming to be a tenant sharing tenancy with the other tenant is also to be protected and while over-ruling the judgment of this Court in Punjab Rajasthan Goods Carriers and Ors. v. Onkar Mal (1976)78 P.L.R. 364 it was further held that the legislative , protection concerning the tenants should not be narrowly tailored and it should be given wider meaning and broader concept. It was further held that the obligation to tender the rent under the proviso on the first hearing date does not depend upon the existence of admitted jural relationship of landlord and tenant. When an action for eviction is brought by the landlord on the ground of default, the provison stands attracted. The benefit of. the proviso could be availed of by the tenant and also by those who claim to be availed of by the tenant and also by those who claim to be tenant. The decision of the Supreme Court in Smt. Pushpa Devi''s case (supra) was followed by this Court in Babu Ram (Dead) and Others Vs. Shri Mulkha Singh, .

The Rent Controller, clearly erred while dismissing the application filed by Gurdeep Kaur, under Order 1 Rule 10 of the CPC on the ground that she had no locus standi to file any application as she was not authorised by the tenant, Pritam Singh or that she was not holding power of attorney on his behalf. The Rent Controller likewise erred in dismissing the application filed by Gurdeep Knur under Order 9 Rule 7 of the CPC praying setting aside of the ex-parte proceedings.

Mr. Kapoor, representing the respondent, however, in support of the orders impugned in both the revisions contends that in the fact and circumstances of this case, there was no other manner by which the respondent-Pritam Singh could be served and resort made to substituted service was justified. He also contends that the learned Rent Controller in the circumstances of the case came to a correct decision ordering substituted service. Learned counsel also contends that even if there was some irregularity in ordering substituted service, the ex-parte decree which has intervened, would not permit the petitioner to ask for setting aside the order proceedings ex-parte against Pritam Singh as the said order has merged into a decree. The appeal against the aforesaid order was filed a decree. The appeal against the aforesaid order was filed and was rightly dismissed by the Appellate Authority, further contends the counsel. In support of his last argument, reliance has been placed upon a single bench judgment of this Court in Ram Narain Vs. Gobind Singh and Others, . In so far as the first two points as have been noticed above, are concerned, in view of the discussions made earlier, there is no need to further deal with the matter. The third contention canvassed by learned counsel for the respondent relying upon Ram Narain v. Gobind Singh''s case (supra), has also no merit in it. The facts of the cited case would reveal that Gobind Singh plaintiff had filed a suit for possession by way of pre-emption. The vendee was proceeded ex-parte and final. ex-parte judgment was passed in favour of the plaintiff. In an appeal preferred against the aforesaid judgment, the Appellate Authority dismissed the same being not maintainable and premature on the ground that vendee-petitioner should have filed an application for setting aside the exparte order before the court of original jurisdiction and the appeal was not maintainable as the vendee-petitioner had come to the Court in appeal seeking to set aside the ex-parte order on the ground that there was a fault, irregularity and error in effecting service on the vendee-petitioner. Aggrieved against the said order, the revision was filed in this Court. Ashok Bhan, J. while relying upon Smt. Maya Devi and Ors. v. Mehria Gram Dall Mill, Hissar (1987) 91 P.L.R. 649 dismissed the aforesaid petition. In Smt. Maya Devi v. Mehria Gram Dall Mill''s case the following observations were made :-

"In fact it is candidly admitted that after the ex-parte decree dated 21.3.1986 no application under Order IX, Rule 13 of the Code was moved by any of the defendants before the trial Court for setting aside the same. Sub-section (2) of Section 96 no doubt provides for an appeal against an ex parte decree but in such an appeal an error, defect or irregularity which has affected the decision of the case can be challenged. Such an appeal cannot be converted into proceedings for setting aside the ex parte decree. The Code prescribes the remedy for the setting of the ex-parte decree under Order IX Rule 13 and when a plea under the said provisions fails an appeal is specifically provided under Clause (d) of Rule 1 of Order XLIII of the Code against an order of the trial court refusing to set aside the ex parte decree. It is by now well settled that when a particular remedy is provided for setting aside an ex parte decree and there is, by way of appeal, another special remedy against an order refusing to set aside such a decree; these remedies alone and none other can be taken resort to. Therefore, when these remedies have not been availed of in an appeal u/s 96(2) or in the second appeal u/s 100 of the Code, no ground can be entertained that the ex-parte proceedings were wrongly taken against the appellant which resulted in passing of the ex-parte decree. A similar view was taken by a Division Bench in Nagar Palika Nigam, Gwalior Vs. Motilal Munnalal, . Therefore, both on facts and law, I find no substance in the submission of the learned counsel for the appellants that the order proceeding ex parte against them was not lawful or that the ex parte decree against them was wrongly passed. I, therefore, reject this contention."

The facts of the case cited and relief upon by Mr. Kapoor have no parity with the facts that are available in the present case. No sooner the application filed by the petitioner under Order 9 Rule 7 C.P.C. for setting aside the ex-parte decree as also the application under Order 1 Rule 10 of the Code were rejected, a revision was filed in this Court. It is during the currency of the revision aforesaid that ex-parte decree was passed which was separately challenged by way of an appeal before the Appellate Authority and after its dismissal, other revision petition was filed in this Court. Both the revisions, as referred to above, were ordered to be heard together. Present is not the case where the ex parte proceedings were not challenged. That being so, obviously no revision against the ex parte decree was straightway filed. It is true that if ex-parte proceedings or ex parte decree is sought to be set aside only on the ground that there was an irregularity or error in effecting the service, the remedy ft to make an application only in that behalf and not to file an appeal but as referred to above the facts of the present case are entirely different.

Mr. Kapoor, learned Sr. Advocate appearing for respondent with a view to sustain the impugned order has also relied upon proviso to Rule 13 of Order 9 of the Code of Civil Procedure, His contention is that the petitioner knew about the proceedings and yet no appearance was put in by her upto the time ex-parte proceedings were taken and delayed appearance was just to avoid the payment of huge arrears of rent which swelled to the tune of about Rs. two lacs. This question which has been raised for the first time, cannot be gone into by this Court in its revisional jurisdiction. It may, however, be mentioned that at the time of issuing notice of motion the petitioner had undertaken to pay all the arrears of rent due upto April 30, 1992 on the next date of hearing by way of demand draft drawn in favour of the landlord and is compliance of the above undertaking, a demand draft of Rs. 1,53,700/- drawn in favour of Vinod Kumar Lamba was handed over to the counsel representing him, who accepted the same without prejudice of the rights of landlord. This amount was in lieu of arrears of rent with effect from December 1, 1989 to April 30, 1992. Even as per the case of the respondent-landlord the rent for the said period was not more than Rs. 1,81,750/-. We are not concerned at this stage as to what was the exact amount that was due by April 30, 1992 and that question is left open which would be decided by the Rent Controller but suffice it to say at this stage that the argument of Mr. Kapoor that the petitioner appeared and prayed for setting aside ex parte proceedings only when such an order had been passed and she had been avoiding to appear with a view to delay the payment of rent, has no force, whatsoever.

Mr. Kapoor has relied upon Eskay Engineering Co. Electrical and Hydraulic Engineers and Ors. v. Bhatinda Chemicals and Banaspati Milts Pvt. Ltd. and Anr. 1983(2) RCR 67 Karam Singh Sobti v. Pratap Chand and Anr. (1964) 66 P.L.R. 210 and Bar Council of Maharashtra v. M.V. Dabholkar etc. AIR 1976 S.C. 2092. These judgments, in my view, have no bearing at all on the controversy involved in the present cases.

In view of the discussion made above, both the revisions succeed. The order dated March 4, 1992 passed by the learned Rent Controller Proceeding exparte against Pritam Singh as also order dated April 1, 1992 rejecting the applications moved by Gurdeep Kaur petitioner arc set aside. Petitioner would be arrayed as a respondent in the rent petition and the matter would proceed further from that stage. The order of the Rent Controller dated April 10, 1992 evicting Pritam Singh from the premises in dispute, so confirmed by the Appellate Authority, is also set aside and the revisions as mentioned above, are allowed. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.