- (1.) This is a tenants applicatian Under Section 115 of the Code of Civil Procedure against an order of the Munsif City, Kanpur, refusing to quash an order for their ejectment passed by the Court in their absence. The Respondent Baij Nath is the landlord of a two-door shop in Kanpur of which the Applicants are the tenants. On 10-1-1963 he filed an application for their ejectment on the ground that they had not paid the arrears of rent for more than three months. The amount mentioned in the application was Rs. 531/25. On that very day the Court directed the issue of notice to the Applicants under Sub-section (3)--that is, notice to pay the amount of arrears within 15 days or show cause against the application. The Court fixed 31-1-1963 as the date for showing cause. But the landlord took no step is to effect service. On 31st January he was given further time to effect service, and took steps. The notice directed the Applicants to pay Rs. 531/25 as arrears of rent. On 7th February he applied for amendment of the application by reducing the figure of arrears of rent from Rs. 531/25 to Rs. 331/00, which was allowed. He was again ordered to take steps to effect service on the Applicants. On the 16th February the case was listed before the Court, but as he had taken no steps the case was adjourned to 18th February. On that date the notice of the unamended application (claiming Rs. 531/25 as rent) was returned with the report that service had been effected by affixation because the Applicants were not present. The Court held that this service was insufficient and directed the landlord to take further steps for service of notice. On 21st February, the landlord deposited the notice to be sent by registered post and also by beat of drum. On that day the court permitted service by beat of drum, and fixed 19th of March for the next hearing. On 18th March the landlord deposited the process fee for service of notice by beat of drum. The court again directed service of notice by registered post and beat of drum and fixed the case for 25th May. On 20th March service was effected by beat of drum and affixation of notice on the tenants' house. It is important to note that the Court did not record a finding that it was satisfied that the tenants were evading service. On 18th April the Applicants deposited a sum of Rs. 331/- in Court. On 24th April the landlord made an application stating that service had been effected by beat of drum on 20th March and prayed for an order of eviction on the ground that the tenant had neither deposited the rent nor shown cause within 15 days. On the same day, the Munsif passed an order for the eviction of the tenants. On 30th April, the tenants filed objections against their eviction and against the landlords application of 24th April. They alleged (on affidavit) that they were not aware of any notice from the Court, that they were in Calcutta from 13th March till 30th March and returned to Kanpur on 3rd April, that on arrival they learnt from their younger brother that in their absence a postman had been to the shop two or three times with a registered letter but did not deliver it to him, that on learning this one of the tenants (Mohd. Nafees) immediately went to the Court to make inquiries, that on the same day he signed a challan which was presented to the Court on 4th April, and a sum of Rs. 331/- was deposited within 15 days of receiving knowledge of the notice; that the landlord had secured an order of eviction by misrepresentation and fraud. They contended that the eviction order was illegal as they had deposited the rent within 15 days of knowledge of the proceedings, and prayed for its being set aside. The Court admitted the application and ordered an inquiry and stayed the tenants' eviction meanwhile. The inquiry lasted for more than a year as some witnesses had to be examined in Calcutta. Ultimately, on 10th August 1964 the Munsif passed an order rejecting the tenants objections confirming the order of eviction.
(2.) Mr. J.N. Tewari for the Applicants argued that the Munsif acted illegally in sanctioning service of notice by drum without satisfying himself that the Applicants were evading service. After hearing counsel for both sides I think this argument must prevail.
(3.) Sub-section (3) of Section 7-B enjoins that the Munsif shall, without unnecessary delay, serve by registered post or otherwise a notice (of the landlord's application Under Section 7-B) on the tenant asking him to pay the amount of arrears within. 15 days of the service thereof, or to show cause within the same period why an order of eviction should not be passed against him. The manner of service of notice under Sub-section (3) is prescribed under sub-Section (12) which runs thus: "(12) Any notice issued under Sub-section (5) shall be served on the party by delivering a copy thereof to him or, where the Munsif is satisfied that the party is evading service, then by registered post and by beat of drum." (The reference to Sub-section (5) is an obvious error, as that sub-section does not provide for the issue of any notice. It was conceded by both counsel that the words "Sub-section (5)" are a mis-print for "Sub-Section (3)"). This sub-section provides for an ordinary mode of service and a special mode. The ordinary mode of service is by delivering a copy of the notice to the tenant. But if the Munsif is satisfied that the party is avoiding service, he may direct service by the special mode--namely, by registered post or by beat of drum. But he cannot resort to the special mode of service unless he is satisfied that there has been an evasion of service. The reason is that limitation for filing objections begins to run from the date of service, and therefore the tenant must be served personally unless the Court is satisfied that he is evading service. But a judicial finding that the Court is so satisfied is a condition precedent for the special manner of service by registered post and beat of drum. This finding is, in view of the irrevocable consequences to the tenant of the expiry of the time limit for filing an objection, a salutary safeguard against an erroneous or fraudulent report that the tenant is evading service. In this case, the Munsif did not even apply his mind to the question whether the Applicants were evading service before sanctioning the special mode of Service. This is a material irregularity which vitiates his decision.;