@JUDGMENTTAG-ORDER
A.G. Qureshi, J.
This revision petition has been filed u/s 23-E of the M.P. Accommodation Control Act, 1961 against the ex parte order of eviction dated 7-3-1991 passed by the Rent Controlling Authority, Indore in eviction case No. A90(7)56/90.
The facts leading to this revision petition, in short are that the petitioner was the tenant of the respondent in a shop comprising of two rooms in the building situated at 10(old) and 12(new) Nasia Road, Indore. The tenancy was for non-residential purpose. The respondents filed an application on 3-12-1990 before the Rent Controlling Authority, Indore against the petitioner u/s 23A(b) of the Accommodation Control Act, 1961 as a widow. On the same date an order for issuance of notice of the eviction application was passed by the Rent Controlling Authority directing the tenant to appear before the Court on 27-12-1990. On 27-12-1990 the Court found that the bailiff had given a report of non-service of notice on the ground that the premises of the petitioner was locked. Thereafter the case was ordered to be put up on 28-12-1990. The Court on 28-12-1990 directed the notice to be served by affixation and finally on 11-1-1991 the Court found that although the notice has been served by affixation, still none is present. Therefore, an order for proceeding ex parte against the tenant was made and the case was fixed for 22-1-1991 and thereupon an ex parte decree of eviction was passed which has been challenged in this revision petition.
The learned counsel for the petitioner has drawn my attention to the fact that the petitioner has suppressed the fact that there is an office of the petitioner in another building also and that address was not shown before the Court. Furthermore the order dated 27-12-1990 clearly shows that the notice of the eviction application could not be served because the premises was locked. But the Court has erred in directing substituted service despite the fact that the notice was sent only once to the shop of the applicant but the process server has wrongly reported that the shop is always locked, which led the Court to order the affixation of the notice by way of substituted service. As such the order on the application of the landlord was passed for substituted service without making any serious attempt to serve the notice on the present petitioner and the Process Server never attempted to serve the notice of the eviction application for more than once. From the report of the Process Server the Court could not hold that repeated attempts to serve the notice were made by the Process Server and, therefore, the provisions of Order 5, Rule 20, CPC could not be invoked. As such the application of the non-applicant under Order 5, Rule 20, CPC was not maintainable and the affidavit sworn by the landlord in support of the application is also of no avail.
On the other hand the learned counsel for the non-applicant Shri Sethi argues that as no application under Order 9, Rule 13, CPC has been filed, the present revision petition is not tenable. On merits Shri Sethi argues that the lower Court has not erred in any way in acting on the report of the bailiff. In reply Shri Waghmare states that an application under Order 9, Rule 13, CPC was not necessary because the order impugned is a nullity because the service was not effected in accordance with law.
As regards the objection about the tenability of this revision petition, in absence of an application under Order 9, Rule 13, CPC having been filed before the lower Tribunal itself, I am of the opinion that the Division Bench of this Court in the case of
In Bhaiyalal (Singhai) and Ors. v. Rikhilal Jain 1968 MPLJ 118 : 1968 JLJ 333, this Court has taken a view that if an order of the Rent Controlling Authority is without jurisdiction, then the order is not final and is to be ignored. In Shantilal v. James Pitter 1987 MPRCJ 178, this Court has taken the view that even during an execution proceeding it is open to the judgment-debtor to take the defence of absence of notice and in case the objection sustains, the decree becomes a nullity and inexecutable. In this very case it has also been held that even in absence of an application under Order 9, Rule 13, CPC a relief can be granted on an application filed u/s 47, Civil Procedure Code.
As such, in view of the aforesaid decisions of this Court, it is manifest that this Court while hearing a revision u/s 23-E of the M.P. Accommodation Control Act (as no appeal has been provided against the order of the Rent Controlling Authority under the Act) can look into the grievance of the petitioner as to the defect, error or irregularity affecting the decision of this Case.
Now, as regards the error and defect of the order of proceeding ex parte, on perusal of the record, I find that the notice of the eviction application was issued against the present petitioner by the Court, vide order dated 3-12-1990 and the case was fixed for 27-12-1990. The notice was issued on 4-12-1990 and the report of the bailiff dated 8-12-1990 is as under :--
This report does not say as to how many attempts were made by the bailiff to get the notice served at the given address. The report is only of 8-12-1990 when the notice itself was signed on 4-12-1990. As such it is not clear as to on what dates the bailiff had gone to the address of the non-applicant and found the premises locked.
Now, the provisions of directing the substituted service under Order 5, Rule 20, CPC provides that the Court should be satisfied that there is reason to believe that the defendant is avoiding the service or that for any other reason the summons cannot be served in the ordinary way and upon such satisfaction the Court shall order the summons to be served by affixing a copy of the summons in some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain or in such other manner as the Court thinks fit. Along with the aforesaid provision Rule 19A of Order 5 has also to be taken into consideration wherein it has been provided that the Court shall in addition to and simultaneously with the issue of summons for service in the manner provided in Rule 9 to 19 (both inclusive) also direct the summons to be served by registered post acknowledgment due addressed to the defendant or his Agent empowered to accept the service at the place where the defendant or his Agent actually and voluntarily resides or carries on business or personally works for gain. This mandatory clause of issuance of summons is, however, subject to the discretion of the Court in the matter and the Court can always, looking to the circumstances of issuance of summons by post in addition to the personal service, if the Court decides that such a simultaneous service is unnecessary in the circumstances of the case, then the Court has to record the reasons for the departure from the mode of simultaneous service. But if without recording any reason for not issuing the summons by post simultaneously, the Court does not issue the summons by registered post simultaneously as provided under Rule 19A or Order 5, Civil Procedure Code, then the service of summons cannot be held to be valid.
As regards the cases governed by the M.P. Accommodation Control Act, 1961, the State has framed the M.P. Accommodation Control Rules, 1966. Rule 15, of the aforesaid Rules, provides for the procedure for service of notice wherein it has been provided that unless otherwise provided by the Act, any notice or intimation required or authorised by the Act to be served on any person shall be served either by delivering it to the person or by forwarding it to the person by registered post with acknowledgment due. As such the notice in the instant suit should have been sent by registered post in the event of the failure of the delivery of the notice to the tenant which has not been done in the instant case. As such there is apparently non-compliance of Rule 15 framed under the M.P. Accommodation Control Act. As such on both the aforesaid grounds the order of the Rent Controlling Authority of proceeding ex parte against the petitioner has to be held to be against the law.
In the result the mode of service of summons in the instant case being contrary to the provisions of law, the ex parte (impugned) order of eviction having been passed holding that the non-applicant tenant was legally served with the notice of the case, is illegal. Consequently the revision petition is allowed with costs. The order impugned is quashed. Counsel''s fee be taxed as per schedule. The case shall be decided by the lower authority after hearing both the parties.
