JUDGMENT Mukteshwar Prasad, J.
1. By means of this petition under Article 226 of the Constitution of India by the tenant, the petitioner has prayed for quashing the judgment and Order dated 5.5.1995 and 22.5.1998 passed by respondent No. 2 and 2.11.1998 passed by the respondent No. 1 (Annexures-2, 8 and 9 to the writ petition) respectively.
2. Counter and rejoinder-affidavits have been exchanged between the parties and are on record. With the consent of learned counsel for the parties, the petition is being disposed of finally at this stage.
3. It appears that S.C.C. Suit No. 99 of 1994 was filed by the landlord for evicting the tenant-petitioner from house No. 1/27, Indra Puri Chharra Adda, Aligarh and for recovery of arrears of rent and damages in the Court of Judge Small Causes. The suit was filed on 9.8.1994 and the Judge directed to issue summons to tenant fixing 8.10.1994 for final hearing. On 10.10.1994, summons was received back unserved and Court fixed 25.10.1994 for awaiting summons. On 25.10.1994, the plaintiff along with his counsel appeared in the Court but none appeared on behalf of defendant and as such, the Court passed Order for proceeding ex parts against the defendant and fixed 28.11.1994 for ex parte hearing. Ultimately, the suit was decreed ex parte on 5.5.1995.
4. The tenant-petitioner moved an application under Order IX, Rule 13, C.P.C. for setting aside the ex parte decree mainly on the grounds that no summons was served on him through process server or through registered post and he never refused to receive summons. It was also alleged that during pendency of the suit, the landlord sold the disputed house to opposite party Nos. 4 to 6 (Sanjai Chopra, Vikas Chopra and Kaushal Chopra), which could not be done. The Court directed to serve the notice on defendants. Again, the defendant-applicant was not served and ex parte decree was passed. On 22.8.1996 one Rajendra informed the petitioner about ex parte decree and then he got the record Inspected and moved an application for setting aside the ex parte decree. It was further alleged that house number of the defendant was not mentioned in the plaint.
5. A written objection was filed on behalf of the landlord denying all the allegations. The application was opposed on the grounds, inter alia, that Indra Deo Dubey, Peon, of the civil court went to serve summons on the petitioner on 1.9.1994 and the petitioner in the presence of two Independent witnesses Gurvachan and Ved Prakash refused to accept the summons. Ultimately, peon affixed a copy of the summons at the door of the house. Besides, the summons was sent by registered post also on 22.8.1994 and same was also refused on 25.8.1994 and as such, no misrepresentation or fraud was practiced on the Court and suit was rightly decreed ex parte.
6. After hearing the learned counsel for the parties, learned Judge, Small Causes found that summons sent through the process server and postman was refused by tenant-petitioner and he had notice of the suit. Moreover, the application was barred by limitation. He, therefore, rejected the application. The tenant-petitioner filed S.C.C. Revision No. 26 of 1998 in the Court of District Judge, which was also dismissed and the Order of the learned Judge Small Causes was affirmed by the Additional District Judge on 2.11.1998,
7. Learned counsel for the petitioner has assailed the impugned orders mainly on the grounds that the Court never passed any Order for issuing summons to the defendant by registered post as provided under Rule 19A of Order V. C.P.C. and alleged refusal of the petitioner and endorsement of the postman on the envelope was manipulated by the respondent. It is quite clear from the Order sheet of the court below that the summons originally sent by the Court was not served upon the petitioner and was received back unserved. The Court passed no Order for issuing summons again for service. Moreover, house number of the defendant was not mentioned in the summons or envelope. There was absolutely no service upon the petitioner through the process server or by the registered post.
8. Learned counsel for the petitioner has placed reliance on the following decisions :
(1) Smt. Munni alias Rajeshwari v. Kshetra Pal Singh, 2004 All LJ 3852, (2) Shah Abetsham Mustafa Faridi v. Smt. Radhika Devi, 1991(2) ARC 305.
(3) State of U.P. and Ors. v. Ram Prasad, 1997 (1) ARC 328.
9. On the other hand, learned counsel for the landlord-respondent has supported the orders impugned in this petition and submitted that provision of Order V. Rule 19A. C.P.C. is enabling in nature and no specific Order for issuing summons by registered post is required by Order V, Rule 19A, C.P.C. In suppprt of his contention, he placed reliance on a decision in the case of Harkesh Chand v. Additional District Judge, Dehradun and Ors., 1993(1) ARC 21. It was also contended that the trial court took pains to record and examine evidence regarding factum of service upon the tenant-petitioner and both the Courts have found that service of summons was actually made by the postman to the petitioner at his residence. The mere fact that formal declaration of service was not made by the trial court before proceeding ex parte in accordance with Order V. Rule 19A, C.P.C. would not be a ground for setting aside the ex parte decree. He has also placed reliance on a decision of Rajasthan High Court in Prakash Chander v. Smt. Sunder Bai and Anr., AIR 1979 Raj 108.
10. I have considered the rival contention of the parties and have gone through the petition, counter-affidavit, and rejoinder affidavit carefully. I have also perused the annexures and decisions. After having considered the arguments made on behalf of the petitioner, I find that the contention of learned counsel is well founded and has to be accepted. It is quite obvious from perusal of the copy of the Order sheet (Annexure-1) that S.C.C. suit was filed on 9.8.1994 and on the same day, after registration of the suit, the Court passed Order for issuing summons to the defendant fixing 8.10.1994 for final disposal.
11. The Courts were closed on 8th and 9th October, 1994 on account of second Saturday and Sunday respectively. On 10.10.1994, the lawyers were on strike and summonses were received back as unserved. However, the Court fixed 25.10,1994 . for awaiting the summons. On 25.10.1994, the plaintiff along with his counsel appeared in the Court but none put in appearance on behalf of the defendant. Hence, the Court passed Order for proceeding ex parte and fixed 28.11 1994.
12. It further appears that the application for amendment of the plaint-was moved and as such, a fresh summons was ordered to be issued. On 1.2.1995, none appeared on behalf of the defendant despite service of summons. Again on 4.4.1995, the Court passed Order for proceedings ex parte and ultimately on 5.5.1995. the suit was decreed ex parte.
13. Order V. C.P.C. deals with Issue and service of summons. Rule 5 provides that in every suit, heard by a Court of Small Causes, the summons shall be for final disposal of the suit. Rules 9 to 19 of Order V, C.P.C. provide mode of service on defendant. Rule 19A lays down that the Court shall, in addition to and simultaneously with, the issue of summons for service In the manner provided in Rules 9 to 19 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. Proviso (1) provides that nothing in this Sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary. It is, therefore, clear that the Order for issuing summons for service on defendant by registered post, in addition to service in the manner provided in Rules 9 to 19, shall not be passed in every case unless the Court considers it necessary. The sub-rule (2) further provides that when an acknowledgment signed by the defendant is received back by the Court or the postal Article containing the summons is received back with an endorsement made by a postal employee to the effect that the defendant had refused to take delivery of the envelope containing summons when tendered to him, the Court Issuing summons shall declare that the summons had been duly served upon the defendant. Again, the proviso to Sub-rule (2) further requires that this declaration shall not be made by the Court unless it is satisfied that the summons sent through the registered post was properly addressed, prepaid and duly sent by registered post acknowledgment due. The declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid or for other reason has not been received by the Court within thirty days from the date of the issue of the summons.
14. In the instant case, I find that there was no Order of the Court for issuing summons to the defendant by registered post. However, summons was sent for service to the defendant by registered post. This fact in itself makes the service of summons on the defendant highly doubtful. Learned counsel for the landlord-respondent could not show any Order of the Court in this regard. It is noteworthy that the petitioner pleaded in para 3 of his application for setting aside the ex parte decree (Annexure-3 to the writ petition) that no summons sent through the process server or by registered post was served upon him nor he refused to accept the summons. Learned counsel for the respondent in this Court laid emphasis on the service of summons on the petitioner by registered post. Learned counsel for the petitioner has placed reliance on the decisions in Smt. Munni alias Rajeshwari v. Kshetra Pal Singh. 2004 All LJ 3852 ; Shah Abetsham Mustafa Faridi v. Smt Radhika Devi, 1991 (2) ARC 305 and State of U.P. and Ors. v. Ram Prasad 1997 (1) ARC 328.
15. In Munni's case (supra), the name and address of the persons identifying the defendant and witnessing the delivery or tender of the summons, time etc. were lacking in the report of the process server and the Court held that the summons were not served on the defendant in accordance with law. In the instant case, the plaintiff himself accompanied the process server for identifying the defendant who had refused to accept the summons in presence of two independent witnesses Gurvachan and Ved Prakash.
16. Note 1 to Rule 138 of General Rule (Civil) Vol. I runs as under :
'It should be impressed upon the process servers that it is their duty and not of the party concerned to find out the person whom the process is to be served. It is not necessary for the party to accompany them for identifying that person. They should seek the assistance of the village headman, Lekhpal, Chaukidar, etc. to find out person on whom the process is to be served.'
17. It is, therefore, obvious that it was not necessary for the plaintiff to accompany the process server to identify the defendant. He, however, went to the defendant's house along with process server on his own.
18. It was held by this Court in Shah Abetsham Mustafa Faridi's. case (supra) that where a summons is sent by the registered post without any specific Order of the Court, the summons should not be deemed to have been served. A Division Bench of this Court in State of U.P. and Ors. (supra) clearly held that under sub-Rule (2) of Rule 19A, it is mandatory for the Court to declare in such circumstances that the summons had been duly served on the defendants. Unless there is such declaration, the summons cannot be said to have been served under Rule 19A. In the present case, it does not appear from the record that there was any such declaration made under sub-rule (2) read with the proviso thereunder. I am, therefore, of the clear opinion that there is nothing on record to arrive at the conclusion that the summons was served upon the petitioner as alleged by the respondent.
19. For the aforesaid reasons, I am fully satisfied that the summons was not served on the defendant-petitioner in accordance with law and courts below committed illegality in holding that the summons had been duly served on him and the suit was rightly decreed ex parte. I am, therefore, of the opinion that both the courts below committed illegality in rejecting the application under Order IX, Rule 13, C.P.C. I, therefore, hold that this petition has merit and orders Impugned in this petition are liable to be quashed.
20. In the result, the petition succeeds and is allowed with costs. The Order dated 22.5.1998 passed by the respondent No. 2 and Order of the revisional court dated 2.11.1998 are hereby quashed and the judgment and decree dated 5.5.1995 passed by Judge, Small Causes in S.C.C. Suit No. 99 of 1994 is also quashed. The case is sent back to the Court of Judge, Small Causes, Aligarh, for deciding the S.C.C, Suit No. 99 of 1994 afresh in accordance with law expeditiously within a period of six months from the date of production of a certified copy of this order. The parties are directed to appear in the court below on 11.4.2005.
21. The stay Order dated 11.11.1998 stands vacated.
22. A copy of this Order shall be made available to learned counsel for the petitioner within six days on payment of usual charges.