Hazara Singh v. Tanpal And Another

Factual and Procedural Background

The respondent-landlord filed an eviction proceeding against the petitioner-tenant on two grounds: (i) non-payment of arrears of rent; and (ii) that the shop was unsafe and unfit for human habitation. The tenant was served for 24th January 1977; that date was suddenly declared a holiday and the courts were closed. When the matter was taken up on 25th January 1977 the Rent Controller ordered: “File put up today Defendant be resummoned on filing of process-fee and also by beat of drum on filing of fee within three days.” On 25th February 1977 the Rent Controller recorded that the respondent “has been served by beat of drum but is not present” and proceeded ex parte, directing ex parte evidence on 9th March 1977. On 29th April 1977 an ex parte ejectment order was passed.

On 26th July 1977 the tenant filed an application under Order IX Rule 13, Civil Procedure Code, seeking to set aside the ex parte orders of 25th February 1977 and 29th April 1977. The petition was opposed on two grounds: (i) that the tenant had not shown sufficient cause for setting aside the ex parte order; and (ii) that the petition was time barred. The Rent Controller rejected the time-bar objection following a decision in Subaash Chander v. Rehmat Ullah (1973 R.C.J 688) but accepted the objection on sufficiency of cause and dismissed the petition. The tenant's challenge to that dismissal reached the court whose opinion is summarized here.

Legal Issues Presented

1. Whether substituted service (by "beat of drum") can be ordered in the first instance without the Court forming the opinion required by Order V Rule 20 (i.e., that there is reason to believe the defendant is keeping out of the way for the purpose of avoiding service or that summons cannot be served in the ordinary way).
2. Whether the proviso to Order IX Rule 13 (as amended in 1976) precludes a Court from setting aside an ex parte decree on the ground of irregularity in service when the defendant did not have notice of the date of hearing and sufficient time to appear.

Arguments of the Parties

Tenant's Arguments

• Substituted service by beat of drum could not properly be ordered unless the Court was satisfied that the defendant was keeping out of the way to avoid service or that summons could not be served in the ordinary course; therefore the Rent Controller should have ordered only ordinary (personal) service for 25th January 1977 and not additionally by beat of drum.
• The date for which the petitioner was served (24th January 1977) was a holiday; the petitioner attended court and found it closed and could reasonably expect to be re-served on the next listing, so he did not have notice of the hearing or sufficient time to appear.

Respondent-Landlord's / Opposing Arguments

• The petition to set aside was opposed on the ground that the tenant had not shown sufficient cause to set aside the ex parte order.
• The petition was also opposed on the ground that it was time barred; the Rent Controller rejected this objection by following the D.B. decision in Subaash Chander v. Rehmat Ullah (1973 R.C.J 688).

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed two discrete points of law and fact. First, it considered statutory procedure governing substituted service. The court held that the provisions of Order V Rule 20 do not permit substituted service in the very first instance; substituted service may be ordered only after the Court is satisfied that there is reason to believe the defendant is avoiding service or that summons cannot be served in the ordinary course. The court relied on the decision in Kewal Sharma v. Subhash Chander Anand to support this interpretation.

Second, the court examined the Rent Controller's invocation of the proviso to Order IX Rule 13 (as amended in 1976) to refuse to entertain objections to irregularity of service on the ground that the defendant had notice and sufficient time to appear. The court found that the Rent Controller erred in treating the proviso as a "prop" to uphold the substituted service: the tenant had been summoned for a date that was a holiday, attended court and found it closed, and therefore could reasonably have believed he would be re-served on the next date. On these facts the court concluded the tenant did not have notice of the hearing and did not have sufficient time to appear such that the proviso could bar relief.

Because the Rent Controller had ordered composite service including substituted service without forming the requisite opinion under Order V Rule 20 and because the tenant lacked notice and time to appear (given the holiday), the court determined the Rent Controller's dismissal of the application to set aside was erroneous.

Holding and Implications

Petition allowed.

Direct consequences:

• The ex parte orders dated 25th February, 1977 and 29th April, 1977 are set aside.
• The Rent Controller is directed to proceed in accordance with law; the parties were ordered to appear before the Rent Controller on 1st September, 1980.
• No order as to costs was made.

Broader implications: The opinion emphasizes that substituted service under Order V Rule 20 cannot be ordered in the first instance without the Court first forming the required satisfaction; the court did not purport to lay down a new, broader precedent beyond applying the established principle from Kewal Sharma v. Subhash Chander Anand. The opinion did not discuss any additional wider legal consequences beyond the direct effect on the parties.