1. The respondent-landlord sought eviction of the petitioner tenant on two grounds: (i) non-payment of arrears of rent; and (ii) the shop was unsafe and unfit for human habitation. The tenant was served for 24th of Jan, 1977. That day was suddenly declared as a holiday and therefore, the Courts remained closed that day the case was put up before the Rent Controller on the 25th Jan, 1977, on which date he passed the following order:--
'File put up today. Defendant be re-summoned on filing of process-fee and also by beat of drum on filing of fee with in three days.'
2. On 25th Feb, 1977, when the case was called, the following order was passed:--
''The respondent has been served by beat of drum but is not present. He is proceeded ex parte. Ex parte evidence be produced on 9th Mar., 1977.'
3. On 29th Apr. 1977 ex parte ejectment order was passed against the tenant. Thereafter on 26th July, 1977, the tenant filed the application under O. 1X, R. 13, Civil P. C. for setting aside the ex parte order of 25th Feb., 1977 and 29th Apr., 1977. The petition was opposed on two grounds:--
i) that the tenant had not shown sufficient cause to set aside the ex parte order; and
ii) that the petition was time barred.
While the Rent Controller rejected the second objection following a D. B. decision in Subhash Chander v. Rehmat Ullah, 1973 Ren CJ 688 (Delhi) the first objection found favour with him and the petition was dismissed.
4. Before the Rent Controller, it had been submitted by the tenant that unless the Rent Controller felt satisfied that there was reason to believe that the tenant was keeping out of the way for the purpose of avoiding service or that for any other reasons the summons could not be served in the ordinary course upon him he could not order substituted service by beat of drum even along with ordinary process. He could order only service by o process, that is, personal service on 25th Jan. 1977 and not additionally by beat of drum.
5. The learned Rent Controller how: ever held that it was open to the Court to order substituted service even in the very first instance. He also referred to the amendment to proviso to O. IX R. 13 added in 1978, which is in the following words:
'Provided further that no Court shall set aside a decree passed ex parte on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of heating and had sufficient time to appear and answer the plaintiff's claim.
Explanation: Where there has been an appeal against a decree passed ex under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.'
And held on its strength that the point of mere irregularity in the service could not be agitated.
6. In my opinion, the Rent Controller has clearly erred. The provisions of O. V, R. 20 do not envisage substituted service in the very first instance It has been so held by this Court in Kewal Sharma v Subhash Chander Anand 1978-80 Pun LR 433, wherein Goyal J., observed as under:--
'A perusal of the provisions of O. 5, R. 20, Civil P. C., would show that substituted service can be ordered only where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way.'
In the present case neither any such opinion was formed by the Rent Controller when he ordered the composite service including the substituted service nor there was any reason for him to form such an opinion.
7. Proviso to R. 13 O. IX in the present case cannot be used as a prop while dismissing the petition. The date for which the petitioner was served was a holiday. He came to the Court and found the Court closed. The petitioner-tenant could genuinely form the opinion that that day being a holiday, he would be served again for the date on which the case would be listed for he In the circumstances it cannot be said that he had notice of the date of hearing and had sufficient time to appear and answer the appellants claim.
8. For the reasons aforementioned, the petition is allowed. The ex parte orders dated 25th Feb., 1977 and 29th Apr., 1977 are set aside. The Rent Controller is directed to proceed in accordance with law. The parties are directed to appear before the Rent Controller on 1st Sept., 1980. No order as to costs.
9. Revision allowed