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M/S Kurara Kadaura Bundelkhand Transport Co. And Another v. Dinesh Kumar Sharma - WRIT - A No. - 39265 of 2005  RD-AH 17604 (12 November 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 7
CIVIL MISC. WRIT PETITION NO. 39265 OF 2005
M/s Kurara Kadaura Bundelkhand Transport
Company and another - Petitioners
Dinesh Kumar Sharma - Respondent
Hon'ble Sunil Ambwani, J.
Heard Shri Anil Kumar Mehrotra, learned counsel for the petitioner-tenant and Shri S.N. Pandey and Shri Hawaldar Verma for the respondent-landlord.
The order dated 29.4.2005, by which the Civil Judge (Junior Division), Kanpur Nagar has refused to set aside ex-parte decree dated 3.4.2003 passed by the Prescribed Authority, is under challenge in this writ petition.
The trial court held that the service was sufficient inasmuch as the notices sent by registered post were refused and that the process server had affixed the summons on the door of the shop, which was found to be closed.
A perusal of the release application would show that the tenant was not described correctly. The description of the tenant in the release application to whom notices were sent, reads as under:-
"M/s Kurara Kadaura Bundelkhand Transport Co. commonly known as K.K. Bundelkhand Transport Co., having its office at Premises No. 133/137-A, Transport Nagar, Kanpur and also at C/o Firm Daulatram Agarwal Ka Phar, Proprietor of the Firm Shri Harish Chandra Agarwal at Chak No. 73, Collectorganj, Kanpur through its Proprietor Sri Anil Kumar Gupta, adult, son of Late Ram Swaroop Gupta, resident of Premises No. 128/89 'F' Block, Kidwai Nagar, Kanpur- Opposite Party."
Learned counsel for the respondent is not in a position to state whether the tenant is a partnership firm or a proprietorship firm. Shri Anil Kumar Gupta is described as proprietor of firm-Shri Harish Chandra Agarwal which along with firm Daulatram Agarwal and another partnership firm described to be in the care of M/s Kurara Kadaura Bundelkhand Transport Co. is styled as the tenant. The envelop sent by registered post describes the tenant as follows:
M/s Kurara Kadaura Bundelkhand Transporter K.K. Bundelkhand Transport Co. R/o 133/137-A T.P. Nagar C/o Daulatram Agarwal T.P. Nagar, Kanpur Nagar (U.P.)"
In the affidavit of the petitioner-tenant, it was denied that the notices were refused by any person having concern with the firm and that the tenant had no knowledge of the proceedings until he was informed by one of the brother of the landlord, in litigation with him, that an ex-parte decree has been passed against the firm.
The tenant is not been properly described in the release application. The pleading of the release application do not support the description in the array of parties. It is not clear as to whether the tenant is a partnership firm or a proprietorship firm, and the reason for which such firm is described to be under the care of another proprietorship firm. It is apparent that this mis-description is the result of confusion in effecting service on the tenant.
In the circumstances discussed as above it cannot be said that the respondent-tenant was served with the notices by affixation and by refusal of registered post envelop and that he deliberately absented from the proceedings.
The writ petition is allowed. The impugned order dated 29.4.2005 passed by Civil Judge (Junior Division) Kanpur Nagar in Misc. Case No. 2/74 of 2003, rejecting the application to set aside the ex-parte order dated 3.4.2003 in Rent Case No. 11 of 2002 is set aside. Both the parties agree that they will appear before the Prescribed Authority on or before 10.12.2007, and that no further issue will be raised with regard to service of summon on the parties. It will be open to the landlord to describe the tenant properly by amending the release application. The rent, as directed to be paid @ Rs. 7200/- per month from 1.1.2007, will be paid upto 30.10.2007. This payment shall be treated as costs for restoration and the opportunity to the tenant to cont est the matter on merits. The rent for subsequent period will be paid in accordance with the agreed rent between the parties.
Dt. 12.11.2007 RKP
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