Delhi High Court
Rakesh Gupta vs Akhil Jain on 6 September, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 185/2012
Date of Decision: 06.09.2012
RAKESH GUPTA ...... Petitioner
Through: Mr.Sandeep Sethi, Senior
Advocate with Mr.
S.N.Chaudhary, Ms.Preeti
Gupta, Advocates.
Versus
AKHIL JAIN ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution impugns
the order dated 26.08.2011 and also the order dated 9.1.2012 of
Sr.Civil Judge-cum-Rent Controller (Central).
2. The respondent was a tenant in respect of a portion on the
ground floor of the premises being 1/6, Rani Jhansi Road, New
Delhi under the petitioner. The petitioner had filed a petition for his
eviction under Section 14(1)(d) of the Delhi Rent Control Act (for
short the 'Act') on the ground that the respondent or his family has
not been residing in the tenanted premises, preceding immediately
six months before the filing of the petition. It was averred that
rather, they have not been residing there for the last more than five
years. The respondent having failed to appear to contest the eviction
petition, he was proceeded ex parte on 9.11.2009 and consequently,
ex parte eviction order was passed against him on 2.2.2010. During
the execution proceedings, the respondent having come to know of
the ex part eviction order, filed an application under Order 9 Rule 13
CPC for setting aside the ex parte judgment dated 2.2.2010. This
application was allowed by the Sr.Civil Judge-cum-Rent Controller
vide the impugned order dated 26.08.2011. The petitioner sought
recalling of this order by filing review application, which also came
to be dismissed by the Trial Judge on 9.1.2012. These orders are
under challenge in the instant petition by the petitioner.
3. I have heard learned senior counsel for petitioner at the stage
of admission and perused the records including the impugned order.
The eviction petition was filed on 21.10.2008. Notice was ordered
to be issued by both ways i.e. by ordinary post as well as registered
post for 12.01.2009. The respondent having not been served for this
date, fresh notices were ordered to be issued by both these ways
again for 16.04.2009, on filing fresh addresses of the respondent.
Though the matter was listed for 16.04.2009 for service of the
respondent, the petitioner filed an application under Order 5 Rule 20
CPC for substituted service on 23.03.2009. The Trial Judge passed
the order, observing that the application is premature as the notice to
the respondent was not yet served and the steps were required to be
taken through the process serving agency as also by registered
cover. On 16.04.2009, the petitioner placed on record one report of
BSES and stated that there was no electricity in the premises. Based
on this, he sought the respondent to be served through publication in
newspaper. The learned Trial Judge seems to have been misled that,
while recording that the processes sent by the ordinary process as
also by courier have been received back as unserved, he permitted
for service of the respondents through publication in the newspaper
'Statesman', and permitted the petitioner to take the same dasti. On
the receipt of information of publication in newspaper 'Statesman',
the Trial Judge, on 9.11.2009, recorded the absence of the
respondent and ordered for ex parte proceedings against him. On
2.2.2010, he passed the ex parte eviction order.
4. From the proceedings as have been noted above, it would be
seen that there was specific order of issue of notices by ordinary as
well as by registered post for 12.01.2009 and also for 16.04.2009.
Not only that the petitioner did not comply this order, but also not
complied the provisions as contained under Order 5 Rule 9 CPC,
which requires issue of notices by ordinary as well as registered
post. Further, instead of complying the order, the petitioner
hurriedly moved the court on 23.03.2009 when the case was not
listed, and filed application for substituted service under Order 5
Rule 20 CPC. This conduct of the petitioner would demonstrate not
only his anxiety to get the ex parte order, but to manipulate the ex
parte order by all means. Then, he was able to manipulate and
succeeded in misleading the court on 16.04.2009 by presenting some
paper of BSES to show that there was no electricity consumption in
the suit premises. The Trial Judge apparently erred in entertaining
the application for substituted service at this stage, when there was
report of the respondent having not been served by ordinary process
as also by courier, though there was no order passed by him before
for issue of notice through courier, and issue of which also, appears
to have been manipulated by the petitioner. Still further, the Trial
Judge seems to have forgotten that on earlier occasion, he had
directed the notice to be issued for 16.04.2009 by both the ways at
the fresh addresses to be given by the petitioner. Nowhere it was
stated by the petitioner to the court that he was not aware of the
fresh address, nor any effort is seen to have been made by him to
find out the fresh address of the respondent. Within no time of the
filing of the petition, and even without compliance of the orders
passed by the court, the petitioner succeeded in misleading and
procuring the ex parte order against the respondent vide impugned
order dated 02.02.2010. The Trial Judge seems to have realized the
error and he set aside the ex parte eviction order dated 02.02.2010
on the application being filed by the respondent under Order 9 Rule
13 CPC. I do not see any infirmity or illegality in the impugned
order of the Trial Judge. The review application that was filed for
recalling of this order, was also rightly dismissed by the learned
Trial Judge vide his order dated 9.1.2012. There is no infirmity or
illegality in the said order as well. The petition being without any
merit is hereby dismissed.
M.L. MEHTA, J.
SEPTEMBER 06, 2012
akb
