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2002 (4) TMI 966 - SUPREME COURT

2002 (4) TMI 966 - SUPREME COURT - TMI - Appeal (civil) 5111 of 2000 - Dated:- 23-4-2002 - R.C. LAHOTI & B.N. AGRAWAL, JJ. JUDGMENT This is a landlord-tenant litigation. The tenant is aggrieved by an ex- parte decree dated 9.10.1993 for recovery of arrears of rent and eviction from the suit premises bearing plot No. 9, Chowk Shakti Nagar, Amritsar where the tenant carries on his business of selling shoes. An application under Order 9, Rule 13 of the C.P.C. seeking setting aside of the ex-par .....

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dered to him the summons accompanied by a copy of the plaint. The tenant refused to accept the summons. Then, he returned the summons alongwith an endorsement of refusal on the back of summons to the Court on 23.2.1993. On 23.2.1993, the Court recorded default in appearance of the defendant-tenant and proceeded ex-parte resulting into the ex-parte decree dated 9.10.1993. The singular issue which arises for determination in the case is whether the defendant-tenant can be said to have been properl .....

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. He met me on the spot present. But he refused to accept the summons, Copy of the plaint alongwith summons is returned to the Court. Report submitted accordingly. Sd/- Narinder Jeet Singh Dated : 22.2.93 Translation from Punjabi to English. Attested to the true. (Rajesh Bhandari) Note : No witness available on the spot. Refusal - 23.2.1993" The facts deposed to by Narinder jeet Singh, Process Server in the court show his having tendered the summons alongwith the copy of the plaint to the d .....

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ith summons" was returned to the Court. Rules 17 and 18 of Order 5, C.P.C. which lay down the procedure of service when the defendant refuses to accept service and the endorsement to be made by the serving officer, read thus: "17. Procedure when defendant refuses to accept service, or cannot be bound.-Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot f .....

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e or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. 18. Endorsement of time and manner of service.-The serving officer shall, in all cases in which the summons has be .....

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aint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by persons who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witnesses available on the spot. The correctness of such endorse .....

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state that though the date of appearance was 23rd February, 1993 the summons is said to have been tendered on 22nd February, 1993, i.e., just a day before the date of hearing. The appellant has himself appeared in the witness box and deposed on oath that no summons was tendered to him by any process server of the Court. It is a case of oath against oath. In view of the facts which we have noticed here-in-above clearly the oath of the appellant was more weighty than the oath of the process serve .....

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ed to recover rent setting up a will in its favour. The appellant has admitted in the plaint therein that he was aware of the pendency of the suit filed by the respondent in the court of the Rent Controller, Amritsar. In fact, this admission of the appellant has weighed heavily with the High Court which has opined that even if the summons was not duly served, the appellant was aware of the pendency of the suit and, therefore, the application under Order 9, Rule 13 C.P.C. did not have any merit. .....

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suit' which is relevant for the purpose of the proviso above said. Then the present one is not a case of mere irregularity in service of summons; on the facts is a case of non-service of summons. The appellant has appeared in the witness box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had su .....

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due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the Court may make an order that the suit be heard ex-parte. The provision casts an obligations on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being 'proved' that the summons was duly served when and when alone, the Court is conferred with a discretion to make an order that the suit be heard ex-parte. The date appo .....

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