High Court · 2025

Rs. 200/-. The defendants were further directed to pay Rs. 30 as monthly rent till they vacate the premises.

4. It transpires that soon after the suit was decreed on 08.10.2018 the respondents executed sale of the property in question on 15.10.2018 in favour of one Mr. Vimal Khedwani for a consideration of Rs. 47,00,000/- and claimed themselves to be owner of the property by virtue of some Will executed by late Mulamal at an earlier point of time in favour of the then sitting tenant Asudram, father of respondents. It is claimed that soon after getting knowledge of the alleged sale deed being executed, the landlord-petitioner filed their objections before the Sub-Registrar and resultantly, the sale deed could not been registered. Ultimately, the tenant- respondents had to refund the consideration amount to Mr. Vimal Khedwani but in the meanwhile Vimal Khedwani had put one Ram Prasad Tiwari, his agent in possession of the premises. The execution case came 2 of 18 to be filed being No. 6 of 2018 in which the possession was directed to be handed over and Shri Ram Prasad Tiwari since was there in possession of the property, he handed over possession to tenant petitioner and one motorcycle alongwith certain other articles that were there in the premises were handed over to Supurdegar. It is submitted that Ram Prasad Tiwari, later on applied for release of motorcycle and other items that was allowed and it was at this stage an Order IX Rule 13 application came to be filed by the respondents with a plea that they had no notice of the suit and, hence, they could not appear and participate in the suit proceedings. The said application was filed along with a miscellaneous application for stay. It was also claimed that a challan form was also submitted along with the stay application to deposit the rent but admittedly no application was filed additionally under Section 17 of the Provincial Small Causes Court, 1887.

5. It is claimed by the defendant-respondents that challan form that was submitted along with stay application, came to be allowed by the court only on 24.10.2018 and accordingly deposit was made in SCC Case No. 15 of 2017. Order IX Rule 13 application was contested by the tenant- petitioner raising three points: firstly, that there was no deposit made under Section 17 as no application filed seeking permission to submit challan and thus, no application under Section 17 Small Causes Courts Act accompanied application filed under Order IX Rule 13 CPC; secondly, the deposit was made in a wrong proceeding and therefore, it 3 of 18 was not deposit within a meaning of Section 17 in the miscellaneous case and, hence, there was no compliance of Section 17 to maintain an application under Order IX Rule 13; and, thirdly, the deposit made was insufficient i.e, not in terms of the decree. The application under Order IX Rule 13 was also contested on the ground that wrong statement of fact had been pleaded regarding absence of service because summons were duly served upon the defendants and the court had recorded satisfaction regarding service of summons. In support of this objection petitioner got process server summoned in the witness box to render his testimony and prove the service of summons. Process server Brij Kishore Sharma s/o Ram Gopal Sharma appeared in court and gave his testimony admitting that he had served the summons upon Smt. Madhuri Raheja who not only made an endorsement of service of summons on her behalf but also after talking to her brothers Shri Ram Badhwani and Shri Ram Gopal Goswami on telephones also made an endorsement on behalf of her said brothers. Thus, it is claimed that the service of summons was sufficient and defendants deliberately avoided appearance in suit. Since Order IX Rule 13 application was filed with the plea also that Smt. Madhuri Raheja had not accepted summons on behalf of her brothers and that there was no signature of Smt. Madhuri Raheja upon receipt of summons, the petitioners had also applied for handwriting expert opinion upon the disputed signature but the said application was rejected by the trial court on the ground that since the process server had proved that summons were duly served as received by Smt. Madhuri Raheja both in her behalf and on 4 of 18 behalf of her brothers after talking to them on telephone and taking their permission and since summons were personally served upon Smt. Madhuri Raheja, then there was no question of asking for an handwriting expert opinion. The said order came to be affirmed in revision filed by the petitioner on same ground that the process servers Brij Kishore Sharma had in his oral evidence proved proved paper No. 49-C/1 and 49-C/4 that he had served the summons upon Smt. Madhuri Raheja in SCC suit personally and there was no necessity to get the disputed signatures examined through an handwriting expert. Thus, the suit got decreed ex parte.

6. Miscellaneous recall application came to be allowed by the Judge Small Causes on twin grounds: firstly, the deposit was made under Section 17, may be in a wrong case but it showed the intention of tenant to deposit the decretal amount; and, secondly, Brij Kishore Sharma failed to mention the persons who had identified Smt. Madhuri Raheja upon whom he had served the summons and accordingly the same created doubt about the service of summons. Petitioner unsuccessfully challenged the order in revision and hence, this petition.

7. Ms. Rama Goel Bansal, learned Advocate appearing for petitioner has argued that: (i) Once the process server himself appeared in the witness box and proved the service of summons and endorsement made by Smt. Madhuri 5 of 18 Raheja and the recitals of effective service contained in the receipt, the initial burden to prove service of summons stood discharged by the landlord petitioner and the respondent having failed to lead any evidence in rebuttal by placing any substantive piece of evidence or producing Smt. Madhuri Raheja herself in support of the denial of service, the Judge Small Cause fell in serious error of law and facts in returning a finding that service of summons was doubtful and, hence, ex parte judgment and decree deserved to be recalled. In support of her submissions, learned counsel for petitioner has relied upon the following authorities: (a) Smt. Sanju Dubey v. Khasgi Devi Ahilya Bai Holker Charities Thru’ Raja Singh 2019 0 Supreme (All) 661. (b) Parimal v. Veena @ Bharti 2011 LawSuit (SC) 82. (c) Shri Sethpal v. Shri Vijay Kumar, Matter Under Article 227 No. 10099 of 2016. (ii) Every deposit under Order IX Rule 13 for recalling ex parte judgment and decree of small cause court is mandatorily required to be accompanied by a miscellaneous application under Section 17 of the Provincial Small Causes Act, 1887 for accepting the deposit of decretal amount and since, the Order IX Rule 13 application did not accompany any such miscellaneous application nor any miscellaneous application to grant time to deposit decretal amount being filed, Order IX Rule 13 application was not maintainable and findings to the contrary are 6 of 18 perverse. In support of her submissions, learned counsel appearing for petitioners has relied upon the following authorities: (a) Kedarnath v. Mohan Lal Kesarwari & Ors. 2002 0 Supreme (SC) 29 (b) Mahendra Singh Pawar v. Surendra Kumar Soni [2019 (2) ARC 773] (c) Subodh Kumar v. Shamir Ahmed [2021 (1) ARC 680]

8. Countering the above submissions advanced by learned counsel appearing for petitioner, Mr. Rahul Sahai, learned Advocate appearing for respondent submits that the Judge Small Cause was justified in returning a finding that process server having failed to name the person who had identified Smt. Madhuri Raheja, the service was not complete and, hence, there was no compliance of order 18 Rule 15 CPC. Shri Rahul Sahai, has also argued that Section 17 of the Provincial Small Causes Courts Act requires the deposit to be made of the decretal amount and since the decree itself was only for a total sum of Rs. 1523/- deposit of Rs 1613 was more than the the decretal amount. Shri Sahai has further placed before the Court copy of miscellaneous stay application that accompanied the Order IX Rule 13 application to demonstrate that the challan form was submitted along with stay application that had accompanied the Order IX Rule 13 application and since the court allowed the challan only on

24.10.2018, the deposit could be made only on 31.10.2018. Shri Sahai submitted that the court was justified in observing that tenant respondents 7 of 18 intended to deposit the amount and that was why they had submitted the challan form. Shri Sahai submitted that mandatory requirement under Section 17 of the Provincial Small Causes Act was fully complied with and merely because any miscellaneous application was not filed annexing therewith challan that was submitted along with stay application that accompanied the Order IX Rule 13 application, it would not invalidate the deposit.

9. Shri Sahai, submitted that looking to the proviso to Section 17 (1) what the legislature intended was that the deposit to be made in terms of the decree or in pursuance of the judgment and it was not mandatory to move any miscellaneous application under Section 17. Shri Sahai submitted that court is required to take a pragmatic view of the matter of deposit and if the deposit had been made by submitting a challan requiring the court to grant the same, no hyper technical view could be taken to hold that the manner in which the decretal amount was deposited invalidated the same to deny opportunity to the tenant to contest the case on merits. He has relied upon a recent authority of the Supreme Court in the case of Shyam Kumar Gupta and others v. Shubham Jain 2023 (4) SCC 713 (2023 (2) Supreme 552).

10. Having heard learned counsel for respective parties and having perused the records, I proceed to examine the first argument advanced by learned counsel appearing for petitioner and the counter argument advanced by Shri Sahai in respect thereof. The document of service of 8 of 18 summons has been brought on record as annexure No. 6 to the petition and in which the endorsement was made by the process server showing effective service of summons upon the defendant respondent on

16.07.2017. The recitals are reproduced hereunder: "श्रीमान जी, आज दि(cid:10)० 16.7.17 को मौके तादिमल जाकर श्री जयगोपाल गो० व श्री श्रीराम बाधवानी व श्रीमती माधुरी रहेजा को तलाश दिकया तो मौके श्रीमती माधुरी रहेजा दिमली तो उसने अपने भाई श्री श्रीराम बाधवानी व भाई श्री जयगोपाल गोस्वामी से फोन द्वारा पूछकर अपना व उक्त (cid:10)ोनों भाईयों का तीन दिकता समन मय नकलों के लेकर पुस्तों पर प्रादि) के ह० कर दि(cid:10)ये। जो पुस्तों पर मौजू(cid:10) है। रिरपोर्ट. सेवा में प्रेदि0त है। बृजदिकशोर शमा."

11. It is on the basis of the above report that the Judge Small Cause recorded its satisfaction regarding service of summons for ex parte suit proceedings and decreed the same on 18.10.2018. Since the defendant respondent denied service of summons, in order to prove the service of summons petitioners got the process server Brij Kishore Sharma examined. In his statement made on oath Process Server Brij Kishore Sharma claimed that he visited the place in question on 13.07.2017, a thursday, to serve the summons, and since the premises was locked from outside, he came to know from the residents of the area that Smt. Madhuri Raheja was teaching in a school and also used to take tuition and would return in the evening only. Accordingly, he visited again on 16.07.2017, a Sunday to serve the summons again upon the defendant Smt. Madhuri 9 of 18 Raheja, who was present at the premises. He stated that she talked to her brothers Shri Ram Badhwani and Shri Ram Gopal Goswami in his presence. He submitted that in his presence Smt. Madhuri Raheja talked to her brothers on telephone and it was when they permitted her that she made endorsement on receipts of summons on behalf of her and on behalf of her brothers as well. The receipts of summons were submitted in the central nazarat on 18.07.2017 by the process server. The process server stated that he had served the summons upon the defendant in house No. 592 and that the lady who received the summons was in fact Smt. Madhuri Raheja. He stated that upon being asked, she herself disclosed her name to be Smt. Madhuri Raheja and claimed Shri Ram Badhwani and Shri Ram Gopal Goswami to be her brothers. He further stated that she had read the summons first and after talking to her brothers that she had received the same. During the cross-examination he reiterated the same facts.

12. At this stage is is relevant to quote Rule 18 of Order V CPC which has been relied upon by Shri Rahul Sahai in support of the findings recorded by the Judge Small Causes that process server failed to mention the names of nearby residents with the aid of whom he got Smt. Madhuri Raheja identified. The aforesaid provisions runs as under: “18. Endorsement of time and manner of service.—The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.” 10 of 18 (emphasis added)

13. From reading of the aforesaid provisions, it is clear that the process server is required to mention the names and address of the persons who had identified the person and witness to the delivery of tender or summons. From the recitals made in the process server report qua service of summons and the statements made by process servers as discussed above, it is clear that the process server himself had asked Smt. Madhuri Raheja her name and that she herself claimed to be Smt. Madhuri Raheja and that she had two brothers, namely Shri Ram Badhwani and Shri Ram Gopal Goswami. Thus, it is clear that the process server did not serve summons upon Smt. Madhuri Raheja for her identification by any of the neighbours or local residents, nor they were taken to be witness of the service. In these circumstances, therefore, it cannot be said that service of summons was not complete and that the report could not be relied upon and was liable to be held invalid for not being in compliance with the provisions as contained under Rule 18 of Order V of CPC.

14. Still further, what I find is that petitioner in order to be pretty sure that signatures of Smt. Madhuri Raheja were there on receipts of summons because the signatures were being denied, had moved a miscellaneous application before the Judge Small Cause to get the signatures examined by expert but the court rejected the miscellaneous application on the ground that there was no need when the process server had himself proved service of summons. This order came to be affirmed in revision and the 11 of 18 observations made in the revision were not further questioned by the defendant respondent by challenging the said order further.

15. Shri Rahul Sahai, contended that any observation made in the miscellaneous application or miscellaneous case will not have any bearing upon the judgment while the case is being examined on merits and is being decided finally. In my considered view every miscellaneous application which has been filed meaningfully to lead evidence in support of the pleadings or for production of document and evidence which is available to call for an handwriting expert, if is rejected on the ground that there was no necessity as sufficient proof of the same was there, for that limited purpose qua service of summons, in the instant case, the observations made even upon such a miscellaneous case shall have bearing. However, since I find that summons not only stood served upon Smt. Madhuri Raheja but Smt. Madhuri Raheja herself claimed to be Madhuri Raheja and sister of Mr. Ram Badhwani and Mr. Ram Goptal Goswami, other defendants in the suit and had made an endorsement on receipt of summons on behalf of the defendants, this service aspect of the matter stood proved by the process server and the initial burden to prove the service of summons stood discharged. The respondent failed to rebut the same by either leading any substantial piece of evidence or getting Smt. Madhuri Raheja examined in support of their claim that she had not put her signatures. The court was certainly not justified in holding that 12 of 18 since signatures of Smt. Madhuri Raheja were in English service of summons was doubtful upon the defendants.

16. The court sitting in revision also manifestly erred in recording a finding that service of summons upon Smt. Madhuri Raheja could not be taken to be sufficient service upon defendants in view of Section 3(g) of the Act No. 13 of 1972. I have examined the relevant provisions of Act No. 13 of 1972. Section 3(g) refers to the family in relation to landlord and tenant. Building means his or her place where male lenial descendants and such parents and grand parents and any unmarried daughter or widowed or judicially separated daughter or daughter of male lenial descendants as may have been normally residing with him or her but I find that it was a case where two brothers i.e. the first and second defendants along with sister Smt. Madhuri Raheja had succeeded the property from their father late Aasudaram. The tenant has been defined under Section 3(g). The aforesaid section is quoted as under: “(g) "family", in relation to a landlord or tenant of a building, means his or her- (i)spouse, (ii)male lineal descendants, (iii)such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a it ale lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building ;”

17. From a bare reading of the aforesaid provisions, it is clear that all heirs are to be taken as tenants who have been residing with the original tenant at the time of his death. It is not a case of the defendant-respondent that 13 of 18 Smt. Madhuri Raheja was not residing in the building at the time of death of her father, instead I find that she succeeded the property along with her brothers and so all of them had become tenant by succession. Hence, in view of the settled legal principle that service on one tenant is service upon all the tenants, therefore, even if it is taken that she has not received the summons on behalf of other brothers, the service will be taken to be sufficient upon all the defendant, namely, defendants No. 1 and 2 along with defendant No. 3. In the case of Sri Ram Pasricha v. Jagannath and others (1976) 4 Supreme Court Cases 184 vide paragraph 14 it was held thus: “14. There are two reasons for out not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for nonjoinder of other plaintiffs. Such a plea should have been raised, for what is worth, at the earlies opportunity. It was not done. Secondly, the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such”.

18. The findings, therefore, to the contrary by the court below is absolutely an unjustified and hence unsustainable.

19. Coming to the second argument advanced by learned counsel appearing for petitioner and counter submission made by Shri Sahai, suffice it to observe that it is an admitted fact that deposit was made in a wrong proceeding that was not alive as the proceedings of SCC suit had already stood concluded in a decree. This is also clear from the challan form which mentions deposit in SCC Case No. 15 of 2017. In my 14 of 18 considered view the SCC case which has already stood decreed and the proceedings were no more surviving, no deposit could have been made in that proceedings and the deposits would not be a deposit is meant to be made under Section 17 of the Provincial Small Causes Courts Act. I further find that the challan form was submitted along with stay application but the deposit was made only on 31.10.2018. There was no order passed by the trial court granting permission to deposit the amount, nor there was any application seeking such permission. Further I find that there was a handwritten entry of the challan form in stay application without any initial. It appears to be an after thought to insert a line and that was why challan was not cleared by court to facilitate deposite by defendants. Thus it is clear that there was no deposit made on the date of filing of the application under Order IX Rule 13 CPC, nor there was any such application moved seeking time to make the deposit of the decretal amount later. In a matter of miscellaneous recall application moved for want of notice of the case, courts normally take pragmatic view and exercise discretion more on equity and accordingly exercise their discretion to grant time to the judgment debtor to comply with the mandatory requirement of pre-deposit of decretal amount under Section 17 of the Provincial Small Causes Courts Act, 1887. But where the judgment debtor is found to have deliberately avoided to appear in a case despite service of summons and then files recall application without any application either submitting the decretal amount or seeking time to make the deposit and was found to have executed some sale deed of the 15 of 18 demised premises within a week of decree, it showed that tenant petitioner was playing a game of hide and seek to somehow frustrate a lawfully passed decree. A discretion to recall ex parte decree, may not be exercised in such a case where tenants had set up a case of title claiming that their father had a Will from Budhamal qua property and upon true facts coming to knowledge of the vendee, they had to refund the consideration amount and a third person, namely, Ram Prasad Tiwari who was put in possession also handed over possession to the decree holder. It was after getting Order IX Rule 13 application allowed that tenants moved an application for restitution. It is a case where an ex parte decree was passed on

08.10.2018 and it is not denied by the defendant respondent that they had executed sale deed in favour of a third party of the premises in question for a consideration of Rs. 47,00,000/- on 15.10.2018, which they had to refund for the prompt action taken by the petitioner before the Sub- registrar as the sale deed could not be registered. Learned Counsel Shri Rahul Sahai upon specific query being made as to the sale deed executed by the tenant petitioners on 15.10.2018, he could not deny this fact. It is equally true that one Ram Prasad Tiwari, an agent of Vimal Khedwani had obtained possession of the premises by virtue of the sale deed and ultimately handed over the possession to the petitioner and got his motorcycle released from the executing court by moving an application on

03.01.2019. 16 of 18

20. The authorities cited by the respective counsel would only be necessary for legal principles to be discussed but facts are so glaring to arrive at a definite conclusion that I do not want to burden my judgment with further reference to numerous authorities and legal principles referred to.

20. Thus, in total circumspect of the facts of the case and the circumstances, I find that two brothers Shri Ram Badhwani and Shri Ram Gopal Goswami had never been in possession of the property and after sale being executed, even Mrs. Madhuri Raheja left the demised premises. They never wanted to continue tenancy for their need but seem to be after the property and had been borrowing time to get an opportunity to bargain with the true owner, namely, landlord respondent.

21. The service of summons being effective, such tenants with above conduct cannot hope to get ex parte decree recalled, nor deserved.

22. In view of the above, the manner in which the deposit was made under Section 17 makes is clear that it was submitted later on after filling the Order IX Rule 13 application, otherwise the application could not have been entertained at all.

23. Accordingly, the order passed by the Judge Small Causes 17.08.2021 allowing the Order IX Rule 13 CPC application as well as the order passed in revision affirming the said order are hereby set aside. 17 of 18

24. Thus, this petition succeeds and is allowed with no order as to cost. Order Date :-11.3.2025 Nadeem 18 of 18

Rs. 200/-. The defendants were further directed to pay Rs. 30 as monthly rent till they vacate the premises.

4. It transpires that soon after the suit was decreed on 08.10.2018 the respondents executed sale of the property in question on 15.10.2018 in favour of one Mr. Vimal Khedwani for a consideration of Rs. 47,00,000/- and claimed themselves to be owner of the property by virtue of some Will executed by late Mulamal at an earlier point of time in favour of the then sitting tenant Asudram, father of respondents. It is claimed that soon after getting knowledge of the alleged sale deed being executed, the landlord-petitioner filed their objections before the Sub-Registrar and resultantly, the sale deed could not been registered. Ultimately, the tenant- respondents had to refund the consideration amount to Mr. Vimal Khedwani but in the meanwhile Vimal Khedwani had put one Ram Prasad Tiwari, his agent in possession of the premises. The execution case came 2 of 18 to be filed being No. 6 of 2018 in which the possession was directed to be handed over and Shri Ram Prasad Tiwari since was there in possession of the property, he handed over possession to tenant petitioner and one motorcycle alongwith certain other articles that were there in the premises were handed over to Supurdegar. It is submitted that Ram Prasad Tiwari, later on applied for release of motorcycle and other items that was allowed and it was at this stage an Order IX Rule 13 application came to be filed by the respondents with a plea that they had no notice of the suit and, hence, they could not appear and participate in the suit proceedings. The said application was filed along with a miscellaneous application for stay. It was also claimed that a challan form was also submitted along with the stay application to deposit the rent but admittedly no application was filed additionally under Section 17 of the Provincial Small Causes Court, 1887.

5. It is claimed by the defendant-respondents that challan form that was submitted along with stay application, came to be allowed by the court only on 24.10.2018 and accordingly deposit was made in SCC Case No. 15 of 2017. Order IX Rule 13 application was contested by the tenant- petitioner raising three points: firstly, that there was no deposit made under Section 17 as no application filed seeking permission to submit challan and thus, no application under Section 17 Small Causes Courts Act accompanied application filed under Order IX Rule 13 CPC; secondly, the deposit was made in a wrong proceeding and therefore, it 3 of 18 was not deposit within a meaning of Section 17 in the miscellaneous case and, hence, there was no compliance of Section 17 to maintain an application under Order IX Rule 13; and, thirdly, the deposit made was insufficient i.e, not in terms of the decree. The application under Order IX Rule 13 was also contested on the ground that wrong statement of fact had been pleaded regarding absence of service because summons were duly served upon the defendants and the court had recorded satisfaction regarding service of summons. In support of this objection petitioner got process server summoned in the witness box to render his testimony and prove the service of summons. Process server Brij Kishore Sharma s/o Ram Gopal Sharma appeared in court and gave his testimony admitting that he had served the summons upon Smt. Madhuri Raheja who not only made an endorsement of service of summons on her behalf but also after talking to her brothers Shri Ram Badhwani and Shri Ram Gopal Goswami on telephones also made an endorsement on behalf of her said brothers. Thus, it is claimed that the service of summons was sufficient and defendants deliberately avoided appearance in suit. Since Order IX Rule 13 application was filed with the plea also that Smt. Madhuri Raheja had not accepted summons on behalf of her brothers and that there was no signature of Smt. Madhuri Raheja upon receipt of summons, the petitioners had also applied for handwriting expert opinion upon the disputed signature but the said application was rejected by the trial court on the ground that since the process server had proved that summons were duly served as received by Smt. Madhuri Raheja both in her behalf and on 4 of 18 behalf of her brothers after talking to them on telephone and taking their permission and since summons were personally served upon Smt. Madhuri Raheja, then there was no question of asking for an handwriting expert opinion. The said order came to be affirmed in revision filed by the petitioner on same ground that the process servers Brij Kishore Sharma had in his oral evidence proved proved paper No. 49-C/1 and 49-C/4 that he had served the summons upon Smt. Madhuri Raheja in SCC suit personally and there was no necessity to get the disputed signatures examined through an handwriting expert. Thus, the suit got decreed ex parte.

6. Miscellaneous recall application came to be allowed by the Judge Small Causes on twin grounds: firstly, the deposit was made under Section 17, may be in a wrong case but it showed the intention of tenant to deposit the decretal amount; and, secondly, Brij Kishore Sharma failed to mention the persons who had identified Smt. Madhuri Raheja upon whom he had served the summons and accordingly the same created doubt about the service of summons. Petitioner unsuccessfully challenged the order in revision and hence, this petition.

7. Ms. Rama Goel Bansal, learned Advocate appearing for petitioner has argued that: (i) Once the process server himself appeared in the witness box and proved the service of summons and endorsement made by Smt. Madhuri 5 of 18 Raheja and the recitals of effective service contained in the receipt, the initial burden to prove service of summons stood discharged by the landlord petitioner and the respondent having failed to lead any evidence in rebuttal by placing any substantive piece of evidence or producing Smt. Madhuri Raheja herself in support of the denial of service, the Judge Small Cause fell in serious error of law and facts in returning a finding that service of summons was doubtful and, hence, ex parte judgment and decree deserved to be recalled. In support of her submissions, learned counsel for petitioner has relied upon the following authorities: (a) Smt. Sanju Dubey v. Khasgi Devi Ahilya Bai Holker Charities Thru’ Raja Singh 2019 0 Supreme (All) 661. (b) Parimal v. Veena @ Bharti 2011 LawSuit (SC) 82. (c) Shri Sethpal v. Shri Vijay Kumar, Matter Under Article 227 No. 10099 of 2016. (ii) Every deposit under Order IX Rule 13 for recalling ex parte judgment and decree of small cause court is mandatorily required to be accompanied by a miscellaneous application under Section 17 of the Provincial Small Causes Act, 1887 for accepting the deposit of decretal amount and since, the Order IX Rule 13 application did not accompany any such miscellaneous application nor any miscellaneous application to grant time to deposit decretal amount being filed, Order IX Rule 13 application was not maintainable and findings to the contrary are 6 of 18 perverse. In support of her submissions, learned counsel appearing for petitioners has relied upon the following authorities: (a) Kedarnath v. Mohan Lal Kesarwari & Ors. 2002 0 Supreme (SC) 29 (b) Mahendra Singh Pawar v. Surendra Kumar Soni [2019 (2) ARC 773] (c) Subodh Kumar v. Shamir Ahmed [2021 (1) ARC 680]

8. Countering the above submissions advanced by learned counsel appearing for petitioner, Mr. Rahul Sahai, learned Advocate appearing for respondent submits that the Judge Small Cause was justified in returning a finding that process server having failed to name the person who had identified Smt. Madhuri Raheja, the service was not complete and, hence, there was no compliance of order 18 Rule 15 CPC. Shri Rahul Sahai, has also argued that Section 17 of the Provincial Small Causes Courts Act requires the deposit to be made of the decretal amount and since the decree itself was only for a total sum of Rs. 1523/- deposit of Rs 1613 was more than the the decretal amount. Shri Sahai has further placed before the Court copy of miscellaneous stay application that accompanied the Order IX Rule 13 application to demonstrate that the challan form was submitted along with stay application that had accompanied the Order IX Rule 13 application and since the court allowed the challan only on

24.10.2018, the deposit could be made only on 31.10.2018. Shri Sahai submitted that the court was justified in observing that tenant respondents 7 of 18 intended to deposit the amount and that was why they had submitted the challan form. Shri Sahai submitted that mandatory requirement under Section 17 of the Provincial Small Causes Act was fully complied with and merely because any miscellaneous application was not filed annexing therewith challan that was submitted along with stay application that accompanied the Order IX Rule 13 application, it would not invalidate the deposit.

9. Shri Sahai, submitted that looking to the proviso to Section 17 (1) what the legislature intended was that the deposit to be made in terms of the decree or in pursuance of the judgment and it was not mandatory to move any miscellaneous application under Section 17. Shri Sahai submitted that court is required to take a pragmatic view of the matter of deposit and if the deposit had been made by submitting a challan requiring the court to grant the same, no hyper technical view could be taken to hold that the manner in which the decretal amount was deposited invalidated the same to deny opportunity to the tenant to contest the case on merits. He has relied upon a recent authority of the Supreme Court in the case of Shyam Kumar Gupta and others v. Shubham Jain 2023 (4) SCC 713 (2023 (2) Supreme 552).

10. Having heard learned counsel for respective parties and having perused the records, I proceed to examine the first argument advanced by learned counsel appearing for petitioner and the counter argument advanced by Shri Sahai in respect thereof. The document of service of 8 of 18 summons has been brought on record as annexure No. 6 to the petition and in which the endorsement was made by the process server showing effective service of summons upon the defendant respondent on

16.07.2017. The recitals are reproduced hereunder: "श्रीमान जी, आज दि(cid:10)० 16.7.17 को मौके तादिमल जाकर श्री जयगोपाल गो० व श्री श्रीराम बाधवानी व श्रीमती माधुरी रहेजा को तलाश दिकया तो मौके श्रीमती माधुरी रहेजा दिमली तो उसने अपने भाई श्री श्रीराम बाधवानी व भाई श्री जयगोपाल गोस्वामी से फोन द्वारा पूछकर अपना व उक्त (cid:10)ोनों भाईयों का तीन दिकता समन मय नकलों के लेकर पुस्तों पर प्रादि) के ह० कर दि(cid:10)ये। जो पुस्तों पर मौजू(cid:10) है। रिरपोर्ट. सेवा में प्रेदि0त है। बृजदिकशोर शमा."

11. It is on the basis of the above report that the Judge Small Cause recorded its satisfaction regarding service of summons for ex parte suit proceedings and decreed the same on 18.10.2018. Since the defendant respondent denied service of summons, in order to prove the service of summons petitioners got the process server Brij Kishore Sharma examined. In his statement made on oath Process Server Brij Kishore Sharma claimed that he visited the place in question on 13.07.2017, a thursday, to serve the summons, and since the premises was locked from outside, he came to know from the residents of the area that Smt. Madhuri Raheja was teaching in a school and also used to take tuition and would return in the evening only. Accordingly, he visited again on 16.07.2017, a Sunday to serve the summons again upon the defendant Smt. Madhuri 9 of 18 Raheja, who was present at the premises. He stated that she talked to her brothers Shri Ram Badhwani and Shri Ram Gopal Goswami in his presence. He submitted that in his presence Smt. Madhuri Raheja talked to her brothers on telephone and it was when they permitted her that she made endorsement on receipts of summons on behalf of her and on behalf of her brothers as well. The receipts of summons were submitted in the central nazarat on 18.07.2017 by the process server. The process server stated that he had served the summons upon the defendant in house No. 592 and that the lady who received the summons was in fact Smt. Madhuri Raheja. He stated that upon being asked, she herself disclosed her name to be Smt. Madhuri Raheja and claimed Shri Ram Badhwani and Shri Ram Gopal Goswami to be her brothers. He further stated that she had read the summons first and after talking to her brothers that she had received the same. During the cross-examination he reiterated the same facts.

12. At this stage is is relevant to quote Rule 18 of Order V CPC which has been relied upon by Shri Rahul Sahai in support of the findings recorded by the Judge Small Causes that process server failed to mention the names of nearby residents with the aid of whom he got Smt. Madhuri Raheja identified. The aforesaid provisions runs as under: “18. Endorsement of time and manner of service.—The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.” 10 of 18 (emphasis added)

13. From reading of the aforesaid provisions, it is clear that the process server is required to mention the names and address of the persons who had identified the person and witness to the delivery of tender or summons. From the recitals made in the process server report qua service of summons and the statements made by process servers as discussed above, it is clear that the process server himself had asked Smt. Madhuri Raheja her name and that she herself claimed to be Smt. Madhuri Raheja and that she had two brothers, namely Shri Ram Badhwani and Shri Ram Gopal Goswami. Thus, it is clear that the process server did not serve summons upon Smt. Madhuri Raheja for her identification by any of the neighbours or local residents, nor they were taken to be witness of the service. In these circumstances, therefore, it cannot be said that service of summons was not complete and that the report could not be relied upon and was liable to be held invalid for not being in compliance with the provisions as contained under Rule 18 of Order V of CPC.

14. Still further, what I find is that petitioner in order to be pretty sure that signatures of Smt. Madhuri Raheja were there on receipts of summons because the signatures were being denied, had moved a miscellaneous application before the Judge Small Cause to get the signatures examined by expert but the court rejected the miscellaneous application on the ground that there was no need when the process server had himself proved service of summons. This order came to be affirmed in revision and the 11 of 18 observations made in the revision were not further questioned by the defendant respondent by challenging the said order further.

15. Shri Rahul Sahai, contended that any observation made in the miscellaneous application or miscellaneous case will not have any bearing upon the judgment while the case is being examined on merits and is being decided finally. In my considered view every miscellaneous application which has been filed meaningfully to lead evidence in support of the pleadings or for production of document and evidence which is available to call for an handwriting expert, if is rejected on the ground that there was no necessity as sufficient proof of the same was there, for that limited purpose qua service of summons, in the instant case, the observations made even upon such a miscellaneous case shall have bearing. However, since I find that summons not only stood served upon Smt. Madhuri Raheja but Smt. Madhuri Raheja herself claimed to be Madhuri Raheja and sister of Mr. Ram Badhwani and Mr. Ram Goptal Goswami, other defendants in the suit and had made an endorsement on receipt of summons on behalf of the defendants, this service aspect of the matter stood proved by the process server and the initial burden to prove the service of summons stood discharged. The respondent failed to rebut the same by either leading any substantial piece of evidence or getting Smt. Madhuri Raheja examined in support of their claim that she had not put her signatures. The court was certainly not justified in holding that 12 of 18 since signatures of Smt. Madhuri Raheja were in English service of summons was doubtful upon the defendants.

16. The court sitting in revision also manifestly erred in recording a finding that service of summons upon Smt. Madhuri Raheja could not be taken to be sufficient service upon defendants in view of Section 3(g) of the Act No. 13 of 1972. I have examined the relevant provisions of Act No. 13 of 1972. Section 3(g) refers to the family in relation to landlord and tenant. Building means his or her place where male lenial descendants and such parents and grand parents and any unmarried daughter or widowed or judicially separated daughter or daughter of male lenial descendants as may have been normally residing with him or her but I find that it was a case where two brothers i.e. the first and second defendants along with sister Smt. Madhuri Raheja had succeeded the property from their father late Aasudaram. The tenant has been defined under Section 3(g). The aforesaid section is quoted as under: “(g) "family", in relation to a landlord or tenant of a building, means his or her- (i)spouse, (ii)male lineal descendants, (iii)such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a it ale lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building ;”

17. From a bare reading of the aforesaid provisions, it is clear that all heirs are to be taken as tenants who have been residing with the original tenant at the time of his death. It is not a case of the defendant-respondent that 13 of 18 Smt. Madhuri Raheja was not residing in the building at the time of death of her father, instead I find that she succeeded the property along with her brothers and so all of them had become tenant by succession. Hence, in view of the settled legal principle that service on one tenant is service upon all the tenants, therefore, even if it is taken that she has not received the summons on behalf of other brothers, the service will be taken to be sufficient upon all the defendant, namely, defendants No. 1 and 2 along with defendant No. 3. In the case of Sri Ram Pasricha v. Jagannath and others (1976) 4 Supreme Court Cases 184 vide paragraph 14 it was held thus: “14. There are two reasons for out not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for nonjoinder of other plaintiffs. Such a plea should have been raised, for what is worth, at the earlies opportunity. It was not done. Secondly, the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such”.

18. The findings, therefore, to the contrary by the court below is absolutely an unjustified and hence unsustainable.

19. Coming to the second argument advanced by learned counsel appearing for petitioner and counter submission made by Shri Sahai, suffice it to observe that it is an admitted fact that deposit was made in a wrong proceeding that was not alive as the proceedings of SCC suit had already stood concluded in a decree. This is also clear from the challan form which mentions deposit in SCC Case No. 15 of 2017. In my 14 of 18 considered view the SCC case which has already stood decreed and the proceedings were no more surviving, no deposit could have been made in that proceedings and the deposits would not be a deposit is meant to be made under Section 17 of the Provincial Small Causes Courts Act. I further find that the challan form was submitted along with stay application but the deposit was made only on 31.10.2018. There was no order passed by the trial court granting permission to deposit the amount, nor there was any application seeking such permission. Further I find that there was a handwritten entry of the challan form in stay application without any initial. It appears to be an after thought to insert a line and that was why challan was not cleared by court to facilitate deposite by defendants. Thus it is clear that there was no deposit made on the date of filing of the application under Order IX Rule 13 CPC, nor there was any such application moved seeking time to make the deposit of the decretal amount later. In a matter of miscellaneous recall application moved for want of notice of the case, courts normally take pragmatic view and exercise discretion more on equity and accordingly exercise their discretion to grant time to the judgment debtor to comply with the mandatory requirement of pre-deposit of decretal amount under Section 17 of the Provincial Small Causes Courts Act, 1887. But where the judgment debtor is found to have deliberately avoided to appear in a case despite service of summons and then files recall application without any application either submitting the decretal amount or seeking time to make the deposit and was found to have executed some sale deed of the 15 of 18 demised premises within a week of decree, it showed that tenant petitioner was playing a game of hide and seek to somehow frustrate a lawfully passed decree. A discretion to recall ex parte decree, may not be exercised in such a case where tenants had set up a case of title claiming that their father had a Will from Budhamal qua property and upon true facts coming to knowledge of the vendee, they had to refund the consideration amount and a third person, namely, Ram Prasad Tiwari who was put in possession also handed over possession to the decree holder. It was after getting Order IX Rule 13 application allowed that tenants moved an application for restitution. It is a case where an ex parte decree was passed on

08.10.2018 and it is not denied by the defendant respondent that they had executed sale deed in favour of a third party of the premises in question for a consideration of Rs. 47,00,000/- on 15.10.2018, which they had to refund for the prompt action taken by the petitioner before the Sub- registrar as the sale deed could not be registered. Learned Counsel Shri Rahul Sahai upon specific query being made as to the sale deed executed by the tenant petitioners on 15.10.2018, he could not deny this fact. It is equally true that one Ram Prasad Tiwari, an agent of Vimal Khedwani had obtained possession of the premises by virtue of the sale deed and ultimately handed over the possession to the petitioner and got his motorcycle released from the executing court by moving an application on

03.01.2019. 16 of 18

20. The authorities cited by the respective counsel would only be necessary for legal principles to be discussed but facts are so glaring to arrive at a definite conclusion that I do not want to burden my judgment with further reference to numerous authorities and legal principles referred to.

20. Thus, in total circumspect of the facts of the case and the circumstances, I find that two brothers Shri Ram Badhwani and Shri Ram Gopal Goswami had never been in possession of the property and after sale being executed, even Mrs. Madhuri Raheja left the demised premises. They never wanted to continue tenancy for their need but seem to be after the property and had been borrowing time to get an opportunity to bargain with the true owner, namely, landlord respondent.

21. The service of summons being effective, such tenants with above conduct cannot hope to get ex parte decree recalled, nor deserved.

22. In view of the above, the manner in which the deposit was made under Section 17 makes is clear that it was submitted later on after filling the Order IX Rule 13 application, otherwise the application could not have been entertained at all.

23. Accordingly, the order passed by the Judge Small Causes 17.08.2021 allowing the Order IX Rule 13 CPC application as well as the order passed in revision affirming the said order are hereby set aside. 17 of 18

24. Thus, this petition succeeds and is allowed with no order as to cost. Order Date :-11.3.2025 Nadeem 18 of 18