V.K.MEHROTRA, J. - (1.) RANGI Lal, applicant in this revision under Section 25 of the Provincial Small Cause Courts Act, is the tenant of a shop of which Laxmi Narain Gupta and Udai Narain Gupta, opposite parties are landlords. A suit filed by the landlords for the ejectment of Rangi Lal on the ground of default in payment of rent was decreed on May 30, 1981. On August 10, 1981 an application under Order 9, Rule 13 CPC for setting aside the ex parte decree on the ground that summons were not duly served upon him was moved by Rangi Lal. This application having been dismissed on the ground that Rangi Lal was served by the summons on March 12, 1981 through his son Jagdish Chandra so that the application had been filed beyond the prescribed period of limitation and was, thus, not maintainable; Rangi Lal has approached this Court in the present revision.
(2.) THE case of the landlords, as given out in the counter-affidavit of Udai Narain, was that Jagdish Chandra, son of Rangi Lal resided within him and it is upon him that the summons of the original suit were served on March 12, 1981 as was apparent from the report of the process server on the counter-foil of the summons in the original suit. The summons were thus duly served. Besides, Rangi Lal was aware of the pendency of the suit and his case that he learnt about the decree for the first time on August 7, 1981 was incorrect. The Addl. District Judge who considered the application under Order 9, Rule 13, CPC posed the question for determination before him to be "whether service made upon Jagdish Chandra, the son of Rangi Lal (could) be treated to be sufficient service upon Rangi Lal or not. Further, if the service was not a proper service, the question to be determined was as to when Rangi Lal came to know of the decree. He then proceeded to examine the correctness of the assertion made by Rangi Lal in the affidavit filed by him in these proceedings that he learnt about the decree dated May 30, 1981 only on August 7, 1981. After discussing the evidence before him and taking note of the circumstances of the case, he concluded that Rangi Lal had failed to prove that he knew about the decree only on August 7, 1981. According to the learned Judge, the mention of the date of the decree as May 30, 1981 in the application for inspection of record made on behalf of Rangi Lal on July 31, 1981 was indicative of the fact that Rangi Lal had knowledge about the date prior to August 7, 1981. Primarily, on this ground the learned Judge felt that the summons were duly served upon Rangi Lal on March 12, 1981. And, it is thus that he has expressed himself on this aspect :- "The applicant besides his own affidavit also filed the affidavit of his son Jagdish Chandra Gupta, who denied to have received the summons of his father or to have put his signature on the back of the summons.......The question is how the applicant could know on 31.7.81 that the suit had been decreed. His affidavit on the point that he knew of the decree on 7.8.81 stands belied from this inspection application. It is possible only when the applicant was in the known of some proceedings pending against him. Thus even though there has been an affidavit of Jagdish Chander that he did not receive the summons but the circumstances speak that the applicant is not coming with clean hands and the contention of the plaintiff in his affidavit that the applicant had been finding the dates from the diary of the District Judge's Court finds strength. In any case the applicant has failed to prove that he knew of the decree on 7.8.81. If it was so, the date of decree could not have been given in the inspection application which was moved on 31.7.81. Thus from the record the defendant-applicant could not prove that he was not duly served with summons and there is no reason to disbelieve the report of the process-server and the endorsement of Jagdish Chandra on the back of it who has every motive to deny the same being the son of the applicant."
(3.) PAPER No. 10-C is the counter-foil of the summons. On its back, is an endorsement of having received the summons and the copy accompanying it, said to have been made by Jagdish Chandra for Rangi Lal, his father. Below it, is a report of the process-server in Hindi in the following terms : "Shrimanji, aaj 12.3.81 ko bamukam Civil Line main jaakar Shri Rangi Lai ko talash kiya to dukaan par ek saks baithe huye the, naam pucahe par apana naam Jagdish Chandera ladaka Rangi Lal muddaleh bayan kiya aur samman va nakal lekar apana daskhat pita (vasse) hindi mein bana diya." ;