R.A. Jahagirdar, J.
1. The petitioner was the defendant in R.A.E. Suit No. 663/2086 of 1981 filed by the respondent in the Court of Small causes at Bombay for possession of an apartment Bearing No. 7 in a building called Vatsalganga. The said building is situated on Plot No. 124 at Sion in Bombay. The said apartment will hereinafter be referred to as 'the suit premises'. The suit was filed under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as 'the Bombay Rent Act'. It was alleged by the respondent that the petitioner was the tenant of the suit premises and had committed default in the payment of the arrears of rent warranting a decree for possession. The suit was decreed ex parte on the ground that the petitioner, though served with summons of the suit, had remained absent on the date of the hearing. Originally the summons had been made returnable on 28th of July, 1981, but subsequently the date of the hearing was changed to 7th of September, 1981. The summons was sought to be served, according to the respondent, on the petitioner on 12th of August, 1981 on which day the petitioner refused to accept the summons. The bailiff of the Court of Small Causes resorted to the provisions contained on Order 5, Rule 17 of the Code of Civil Procedure and pasted a copy of the summons on the outer door of the apartment in which, a according to the bailiff, the petitioners was shown to be residing.
2. On 7th of September, 1981, the Registrar of the Small Causes Court made an endorsement on the plaint mentioning that the parties were absent and the matter should be placed before Court Room No. 7 for orders on 23rd of September, 1981. This endorsement is in the form of a rubber stamp print wherein the words 'Ex parte decree' also appear. The said words have been cancelled by the Registrar when he made the endorsement that the parties were absent on 7th of September, 1981. The significance of this will be mentioned by me a little later in this judgment.
3. The record of the trial Court does not show any endorsement on 23rd of September, 1981. However, two dates have been mentioned on the plant, namely 25th of November, 1981 and 10th of December, 1981. Against these two dates the letter 'W.S.' have been mentioned. On 10th of September, 1981 the learned trial Judge has made the following endorsement on the plaint :---
'Plaintiff and his Advocate present. Defendant absent No. W.S. filed. Suit to proceed ex parte. Adjourned to 5-2-82 for ex parte hearing.'
Ex-parte hearing accordingly took place on 5th of February, 1982 and a decree of possession was passed against the petitioner.
4. In execution of the decree it was noticed by the bailiff of the Court of Small Causes on 27th of April, 1982 that the suit premises were locked. The respondent made an application on 28th of April, 1982 for delivery of possession of the suit premises after breaking open the lock. On 29th of April, 1982 the possession of the suit premises was delivered to the respondent after the lock was broken.
5. The petitioner field an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. This application was made on 11th of May, 1982. It was numbered as Miscellaneous Application No. 572 of 1982. In this application it was the contention of the petitioner that service of the summons of the suit had not been effected upon him at all and for this reason the ex-parte decree passed on 5th of February, 1982 should be set aside. It was also urged that there was non-compliance with the Procedural requirement mentioned in Order 5 Rule 17 as well as Order 5. Rule 19 of the Code. It was urged that the mandatory requirement contained in Rule 19-A of Order 5. inserted by the Parliament in the year 1976 had also not been complied with.
6. Rejecting these and other contentions which were urged on behalf of the petitioners the learned trial Judge by his order dated 18th of June, 1982 discharged the notice. This order was challenged by the petitioner in Appeal No. 289 of 1982 which was heard and dismissed by the Appellate Bench of the Small Causes Court by its judgment and order dated 6th of September, 1983. It is thus that the petitioner was found himself in this Court under Article 227 of the Constitution of India. It is not necessary for me to examine in detail the reasoning contained in the judgment of the trial Court. I will only refer to the judgment of the Appeal Court below, though I may briefly mention that the trial Court upheld the contention of the respondent that the bailiff's report should be accepted as true and that there was also a presumption of the application of mind made by the trail Judge to the service of summons upon the petitioner.
7. Prior to the filing of the suit the respondent had sought to serve a notice under section 12(2) of the Bombay Rent Act which notice, according to the respondent, had been refused by the petitioner. The fact has undoubtedly weighed with the courts of facts below. Considering some other material the appeal Court below has also thought that the petitioner is a defiant person and was probably in the habit of refusing notices. Though I am fully aware of the limitations of this Court under Article 227 of the Constitution, I had to, with the assistance of the learned Advocates appearing before me, go through the record of this case because of certain inaccuracies in the narration of the facts made by the courts below. For example, in paragraph 11 of its judgment the appeal Court below has mentioned that the 'R.P. packet has come back undelivered with endorsement 'N/C' means not claimed'. While going through the record it was found that the endorsement on the packet is not 'N/C' but 'N/F'. In other words, it cannot be said that the petitioner has declined to accept the notice sent by registered post. It has not been shown that any intimation was sent by the postal authorities to the petitioner that a registered letter has been received in his name and that he should collect the same from the post office. In this view of the matter, the Appeal Court below was hopelessly in error in saying that the defendant's not claiming the R.P. packet, amounts to a deliberate refusal.'
8. Regarding the service of the summons by the bailiff also the Appellant Bench of the Small Causes Court relied upon an affidavit of one Chandrakant D. Rambhai, who has stated 'that the defendant leaves his house for work between 8.30 a.m. and 8.45 a.m. on all working days'. The Appellate Bench found 'no reason to disbelieve the statement made by Mr. Rambhai in his affidavit dated 18-5-1982 to that effect.' The reliance on the affidavit of Rambhai to the extent made by the Appellate Bench is patently misplaced. Mr. Rambhai could not depose on oath or otherwise that the petitioner left his place for work every day between 8.30 a.m. and 8.45 a.m. or that he left his house at 8.30 a.m. on 12th August, 1981 on which day the summons is said to have been refused by the petitioner. Rambhai could at the most state that he was seen the petitioner leaving for work many times between 8.30 a.m. and 8.45 a.m.
9. Both the trial Court and the Appellate Bench were fair enough to notice that 'the report and the affidavit of the bailiff are not in the form contemplated by Order 5, Rule 17 of C.P. Code and as prescribed in the Bailiffs' Manual.' But proceeding, they treated the defect in the bailiff's report and the affidavit as mere irregularities. Elsewhere again, the Appellate Bench has mentioned as follows :---
'However, in this case the return has been verified by the Bailiff of this Court though not in the specified form of affidavit contemplated by Order, 5, Rule 17 and the bailiff's Manual.'
When the attention of the learned Judge of the Appellate Bench was invited to a judgment of the Madras High CourtA.I.R. 1937 Mad 84 in support of the petitioner's contention based upon the provisions of Order 5, Rule 189 of Code, the learned Judges mentioned as follows :---
'This is not the case in these proceedings, as the bailiff Mr. Nachankar has properly verified the return in writ of summons on 12-8-1981...'
The statements are thus inconsistent on the regularity of the procedure followed by the bailiff regarding the service of summons on the petitioners.
10. It has been urged by the petitioner before the courts below that the procedure prescribed in the Code under Order 5. Rule 19 had not been followed in the instant case. The Appellate Bench rejected this contention by drawing an inference from the endorsement made by the learned trial Judge in the suit that the learned trial Judge has by necessary implication made the declaration as required by Order 5, Rule 19. This is the finding of the Appellate Bench in paragraph 17 of its judgment.
11. I will examine the case of the petitioner beginning with his contention that service of the summons was not effected upon him at all as mentioned in the bailiff's report. The bailiffs' report dated 12th of August, 1981 mentions that he tendered a copy of the summons along with the copy of the plaint to the above named defendant at Vatsalganga building on Plot No. 124 on 12th August, 1981 at 8.10 a.m. Proceeding further, the report mentions that the defendant refused to accept the same. He, therefore, posted a copy of the summons along with the copy of the plaint on the door of his block. The next sentence is significant. 'The defendant and his block were pointed out to me by the plaintiff Shri M.M. Rajadhyaskha'. If one were to mechanically apply the provisions contained in Order 5. Rule 17 of the Code, the procedure followed by the bailiff can be said to be correct. Rule 17 of Order 5 mentions that when the defendant refuses to accept service, the serving officer 'shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides...and shall then return the original to the Court from which it was issued, with a report' mentioning therein the circumstances under which he resorted to this mode of service and the name and address of the person by whom the house was identified and in whose presence the copy was affixed. This provision undoubtedly does not prohibit the bailiff from taking the assistance of the plaintiff while resorting to the procedure under Order 5, Rule 17 of the Code. However, one cannot, from the facts and circumstances of this case, be satisfied that the bailiff was correctly shown either the petitioner or the suit premises. The bailiff in the instant case has not sought to obtain some independent help in identifying correctly the premises in which the petitioner was residing. All the material on record shows that the petitioner has been staying in the premises with his wife and in all probability with his mother also. One does not appreciate as to why the bailiff did not go to the suit premises and get satisfied that the premises were the one where the petitioner was residing. This he could have easily done by finding out who the inmates of the house were. Such a hasty manner of serving the summons of suits under the Bombay Rent Act by the bailiffs of the Small Causes Court in Bombay cannot be said to be satisfactory.
12. Non-compliance with the provisions of Order 5, Rule 17 of the Code and the bailiffs' Manual in relation to the bailiff's report and the affidavit, which has been found by both the Courts below in the instant case, cannot be treated as lightly as it has been done. Irreparable damage may follow from an ex parte decree passed in respect of residential accommodation in Bombay. The need to be fully conscious of the procedure to be followed and the need for fair play in this regard should not be ignored ; on the other hand, they should be fully impressed upon the process servers of the Court of Small Causes.
13. Mr. Abhyankar, the learned advocate appearing for the respondent however, has contended that this Court, in exercise of its jurisdiction under Article 227 of the Constitution, should not interfere in a case where the two Courts below have held that the non-compliance was a mere irregularity and in fact the service of the summons was sought to be effected personally on the petitioner. I have given very thoughtful consideration to this and other submissions made by Mr. Abhyankar in this regard. However, I am of the opinion that on the facts and circumstance of this case there has been no proper examination at all of all the material on record by the two Courts of facts. Running through the judgment of the Appellate Bench there is an undercurrent of thought treating the decree that has been passed in the suit as almost sacred and a reluctance to interfere with the same. This will be more evident when I proceed to examine the next point.
14. Order 5, Rule 19 of the code enjoins a very important duty on the trial Court. The provisions contained in this Rule come into operation when the service of the procedure alleged to have been resorted to by the bailiff of the Small Causes Court. Analysing the provisions contained in Rule 19 of Order 5 one can notice the following steps: where the summons is returned under Rule 17 of Order 5, the return is either not verified by an affidavit of the serving officer or it is so verified. In the first case, namely where it has not been verified by the affidavit of the serving officer, the Court is under an obligation to examine the serving officer on oath touching his proceedings and, if necessary, to make such further enquiry in the matter as it thinks fit. After examining the serving officer on oath the Court may be satisfied that the procedure prescribed under Rule 17 has been correctly followed by the serving officer or it has been so followed. In the first case, namely where the Court is satisfied that the procedure under Rule 17 has been correctly followed, it will make a declaration that the summons has been duly served. In case the Court is not satisfied in that regard, then it will order the service of the summons afresh. The dichotomy of the action contained in the last part of Rule 19 pre-supposes the satisfaction or non-satisfaction of the Court relating to the question as to whether the procedure under Rule 17 has been correctly followed or not.
15. In case there is an affidavit of the serving officer verifying the return made under Rule 17, there is no obligation on the Court to examine the serving officer on oath. However, there is a discretion to follow the same procedure which it is required to follow when there is no affidavit verifying the return. If the Court is satisfied with the affidavit itself or if the Court becomes satisfied after following the discretionary procedure of examining the serving officer on oath, the Court will declare that the summons has been duly served. In case the Court is not satisfied on the affidavit which is already there or on further examination of the serving officer that the procedure under Rule. 17 has not been correctly followed, then naturally the Court will order fresh service of the summons.
16. The words 'and shall either declare that the summons has been duly served or order such service as it thinks fit' are very important. Either of the two actions mentioned in the aforesaid words is obligatory. The Court cannot mechanically proceed with the hearing of the suit ex parte on return of the summons under Rule 17. If the Court is satisfied that the procedure under Rule. 17. has been correctly followed, then there must be a declaration that the summons has been duly served. If, the other hand, there is no such satisfaction, then the Court is bound to order fresh service of the summons. The word 'shall' applied to the declarations well as to the order of fresh service depending upon the satisfaction or non-satisfaction of the Court regarding the return of the summons under Rule. 17. The declaration contemplated in the latter part Rule 19 is mandatory though the form of declaration may not be regarded as mandatory. In a given case the Court may find that despite the report, even a verified one, of the serving officer, the summons has not been served. This may happen, for example, when the Court forms the opinion, after application of its mind to the material before it, that either the defendant or his abode has not been satisfactorily identified. The Court, however, is bound to apply its mind and, after finding that the summons has been served in accordance with the procedure followed under Rule 17, record sufficiently clearly that the summons has been duly served. Unless this is done, the Court will not be justified in proceeding with the suit ex parte. To repeat, the declaration by the Court itself in one form or another that the summons has been duly served in mandatory though the form of the declaration cannot be regarded as mandatory. It is impossible to agree with the courts below that the application of mind by the trial Court can be inferred from the fact that the trial Court proceeded with the hearing of the suit ex parte after mentioning that the defendant has not filed his written statement though served. An endorsement of this type, especially when made after the plaintiff has given his evidence, is hopelessly unsatisfactory. The application of mind contemplated under Rule 19 has to be made before even directing that the suit shall be heard ex parte.
17. On the facts of this case such an inference cannot be drawn. Admittedly there is no clear declaration in one form or another that the summons has been duly served. Even the endorsement of the learned trial Judge on 10th of December, 1981, which I have reproduced above, does not meet the requirement of Rule 19 of Order 5. On the other hand, the said endorsement proceeds on the assumption that the defendant had been served. It does not at all show, even in the remotest manner, that the learned trial Judge was aware that the service of the summons had been made by pasting under Rule 17. When the Registrar of the Small Causes Court directed that the papers be placed before Court Room No. 7 the orders on 23rd of September, 1981, one would normally expect, either on that date or on any other subsequent date, some order or declaration by the Court under Rule 19. No such order or declaration is found in this case. In my opinion, therefore, there is a non-compliance with the procedure, which procedure must be regarded as mandatory, prescribed by Rule 19 of Order 5 of the Code. Moreover, if the matter had been placed before the Court for orders, one does not understand why the letters 'W.S.' appear against two dates.
18. It is no answer to this legal position to say, as Mr. Abhayankar has sought to say, the Order 9, Rule 6 of the Code itself provides sufficient assurance that the suit will not proceed ex parte unless the Court is satisfied that the summons has been duly served. Order 9, Rule 6 provides that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then, if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte. According to Mr. Abhyankar, such a procedure has been followed in the instant case when on 5th of February, 1982 the plaintiff's deposition was recorded and the ex parte decree was passed. I do not agree with the submission that the mandatory requirement of Rule 19 of Order 5 can be complied with in the manner in which it has been done in the instant case. Moreover, the Court can make an order that the suit be heard ex-parte only when it is proved that the summons was duly served. Such of proof is to be obtained by following the procedure under Rule 19 to Order 5. Rule 6(a) of Order 9 only mentions what the Court can do when the plaintiff alone appears and the defendant does not appear. The said provision does not deal with the manner of the proof of the service of summons which is to be found only in Rule 19 of Order 5.
19. The procedure to be followed before an ex parte decree is passed, is to be strictly complied with. The Legislature also has thought it fit to make that procedure somewhat rigorous. The Courts have naturally to follow the said procedure as interpreted by me above. One need not be alarmed by the possibility of a heavy burden being placed upon the trial courts and especially the Court of Small Causes at Bombay. Cases where ex parte decrees are to be passed must necessarily be small in number and it cannot be said that it is too much to expect the trail Courts to follow strictly the procedure in such cases. If there are too many suits in which the Court of Small Causes is called upon to pass ex parte decrees, then one cannot help saying that there must be something alarming in this state of affairs which will need some other treatment. In either case it behooves the trail Judges to be fully satisfied about the service of summons under Order 5, Rule 17 of the Code.
20. Rule 19-A of Order 5 of the Code as it stood before its amendment by the Rule Committee of the High Court under section 124 of the Civil Procedure Code required a Court to issue summons of the suit by registered post simultaneously with the personal service envisaged in the earlier rule. The use of the word 'shall' in Rule 19-A(1) could not, in my opinion, be interpreted in any other manner except that the simultaneous service by registered post was mandatory. In the present case this mandatory requirement has not been complied with. The courts below have wrongly treated this has not been complied with. The courts below have wrongly treated this non-compliance as a mere irregularity. With effect from 1st October, 1983, however, the word 'may' has been substituted and, therefore, hence forth simultaneous service by registered post could be regarded as discretionary.
21. Both the courts below have held in favour of the petitioner regarding the maintainability of his applications under Order 9, Rule 13 of the Code. This question arose because the petitioner himself had contended that his mother, not he, is the tenant of the suit premises and the present suit by the respondent could not have been filed against him. Since, however, an ex parte decree has been passed in a suit joining the petitioner as the defendant, he could legally and legitimately prefer an application under Order 9, Rule 13 of the Code. This is the view which has been correctly taken by the two courts below.
22. On the question of limitation, both the courts below have held that the application made by the petitioner under Order 9, Rule 13 of the Code was beyond the period prescribed by law. This finding they have given after holding that the petitioner was duly served. If, however, it is held, as I am holding, that the petitioner was not duly served, then the finding of the courts below on the question of limitation must necessarily be held to be erroneous. In such a case, the application must be held to be within time.
23. In the result, this petition must succeed. The judgment of the Court of Small Causes, Bombay, in Miscellaneous No. 473 of 1982, and confirmed by the Appellate Bench of the Court of Small Causes in Appeal No. 289 of 1982 in set aside. The said Miscellaneous Notice No. 473 of 1982 is made absolute end the ex parte decree dated 5th of February, 1982 passed by the Court of Small Causes in R.A.E. Suit No. 663/20 86 of 1981 is set aside. The said suit shall be restored to the file of the Small Causes Court which will hear and dispose of the same in accordance with law. The petitioner is free to take such proceeding as he is advised for restitution under section 144 of the Code of Civil Procedure.
There will, however, be no order as to costs in this petition.