N.L. Ganguly, J. - (1.) THIS writ petition is filed by the owner landlady of the premises in question praying for quashing of the order dated 12 -4 -1993 (Annexure 1 to the writ petition). An application under section 21(1)(a) of the U.P. Act No. 13 of 1972 was filed by the petitioner seeking release of the shop -rooms in possession of the respondent as tenant. In P.A. case No. 18 of 1990 an exparte order dated 22 -11 -1991 was passed by the VIII Addl. Civil Judge, Agra allowing the release application of the landlady. The exparte order dated 22 -11 -1991 was got executed on 8 -2 -1992. The tenant -respondent filed an application for recalling the exparte order dated 22 -11 -1991 and also prayed that the possession taken over by the petitioner on the basis of the exparte order be restored back to him and the case itself be restored to its original number.
(2.) THE tenant -respondent in his application for recalling the exparte order pleaded that he occupied the shop -rooms No. 2, 17 and 18, Kundan Market, Agra for the last 15 years. The respondent -tenant pleaded that he had no notice of information about the date fixed in the case. He came to know about the exparte order on 8 -2 -1992 when the petitioner land -lady had gone to take possession of the shop -rooms. 8 -2 -1992 was second Saturday of the month and the courts were closed. The respondent tenant immediately rushed to his counsel when the petitioner was taking steps for possession of the shop -rooms. The respondent, when returned from his counsel, saw that the locks of his shops had already broken and all the goods kept in his shops were thrown outside. After 8 -2 -1992, 9 -2 -1992 was Sunday. The respondent on 10 -2 -1992 got the record of the case inspected and found that the notices issued were bearing fictitious report of the process server that the addressee refused to accept the summons. Before 8 -10 -1991 or thereafter on any date the process server of the Court had never met the tenant -respondent nor ever served any notice or summons, the respondent never refused to accept any notice. These facts were stated in the affidavit of the tenant -respondent. The petitioner objected to the restoration application by filing a counter affidavit before the court below. The petitioner had denied the averments of the tenant in his affidavit. It was specifically pleaded that the tenant was dispossessed on 8 -2 -1992, he had complete knowledge of the proceedings in the court against him. The notices/summonses were presented personally before the tenant by Sri Durga Prasad, Process Server. The tenant had been vigilant and watching the progress in the case after 27 -12 -1990 but was deliberately not appearing before the Court. Again by the orders of the Court notices were sent to him on 8 -10 -1991. The tenant after reading the notice returned the same to the process server and refused to make signature of receipt. The tenant had knowledge and information about the proceedings. The exparte order was legally and correctly passed against him. The petitioner submitted that even on 22 -11 -1991 the petitioner had requested the tenant for vacating the shops but he declined to do so. In these circumstances, the petitioner is said to have taken recourse of the police aid for taking possession. These facts were again denied by the tenant in his rejoinder affidavit.
(3.) THE court below, after appreciating the evidence, affidavits and original record of the notices, recorded findings to the effect that summonses/notices said to have been refused by the tenant after reading was not correct. It was observed that on the back of the notices alleged to have been presented for service before the tenant it is not noted or mentioned that at whose identification the notice was presented for service before the tenant. It is also apparent from the record that there was no signatures of two respectable witnesses of the locality to endorse the fact that the summon was presented before the tenant and he had refused to accept it.;