Karnail Singh vs Dina Nath and others

Gokal Chand Mital, J.—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 CPC (''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 sine 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, I 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 be was never served with any summons that he never refused to receive any summons and no process server ever visits d his shop. He also stated that be 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 summous, 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 be was giving g 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 un-controverted.

Out of the 10 landlords, Bhagat Ram appeared as the only witness and stated that 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-examied 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 un-successful before the additional District Judge, who adopted the same reasoning. This is revision by the tenant.

After hearing the learned counsel for the parties and on perusal of the record, I am of the view that the Court below seriously erred in law and failed to exercise their jurisdiction, in not setting aside the ex-parte decree. This Court has held authoritatively that in case the defendant, against whom ex-parte decree is passed, comes to Court praying for setting aside the ex-parte decree on the ground that he was not served onus would be in the negative form on him and his statement on oath denying service would shift the onus on the plaintiff to disprove his statement. On the facts of this case, in view of the denial of the tenant the onus shifts to the landlords.

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.

A reading of the report on the summons shows that the summons were presented to the tenant on 13th April, 1974 when he refused to accept the same. Then the report says that the summons could not be pasted on the door because the Process-Server had only one copy. Order 5 Rule 17 of the Code provides that in case the defendant refuses to sign the acknowledgment of service of summons, the serving officer has to affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business and to return the original to the Court from which it was issued with a report endorsed thereon and the circumstances under which he did so and he has to mention the name and address of the person if any, by whom the premises was indentified and in whose presence the copy was affixed.

The totality of facts clearly goes to show that there was no service on the defendant and a fake report was obtained by one of the landlords and that is why the Process Server was not produced as a witness in the Court.

Then it is the requirement of law that summons must be accompanied by the copy of the plaint and unless this is done mere presentation of summons without copy is no service. It is not even remotely apparent from the copy of the summons on record that copy of the plaint was attached with the summons and was offered to the tenant. Even Bhagat Ram one of the landlords, has not stated that copy of the plaint was offered and he refused to accept the same. Hence if the plaint was not presented along with the summons it cannot be said that there was due service.

The decision of the two Courts bellow is illegal and without jurisdiction because they did not keep in view the correct legal position enunciated by this Court to the effect that initial onus on the defendants stand discharged by making a statement on oath by him denying service. The decision of the two Courts below and the trial of the case has gone as if it was the tenant who was to lead evidence which was obviously of a negitive nature. If correct legal proposition had been kept in view then on failure of the landlords to produce the Process-server and to prove that copy of the summons was accompanied with the copy of the plaint, they would have held that there was no due service. Accordingly, I reverse the decision of the two Courts below and hold that there was no due service on the tenant.

Coming to the point of limitation, once there is no due service then the limitation would be counted from the date of knowledge. According to the defendant he acquired knowledge on 1st March, 1975. No evidence to the contrary has been led by the landlords. Hence, the application is clearly within limitation and the decision to the contrary is hereby reversed.

It was argued on behalf of the tenant that the place where the premises is situate is in the urban area and, therefore, East Punjab Urban Rent Restriction Act, 1949, has become applicable to it. Assuming that the tenant was served and the ex-parte decree is good, the tenant would be treated as an ex-tenant and since he is in possession as an ex-tenant, there can be no execution against him in view of section 13 of the Act, as he can only be evicted on one of the grounds contained under the Act. Since no material has been placed before me to show that the premises is now within the urban areas, no decision can be taken on this point. However, since ex-parte decree is being set aside, it will be open to the tenant to raise plea in this behalf in the written statement and to prove it.

For the reasons recorded above, this revision is allowed, the orders of the two Courts below are set aside and the ex-parte decree dated 21st September, 1974 is hereby set-aside. No costs.

The parties through their counsel are directed to appear before the trial Court on 30th October, 1985. The trial Court would give a date to the defendant to file his written statement. It would proceed thereafter in accordance with law.