Gian Singh vs Rajesh Kumar

Rakesh Kumar Garg, J.—This is tenant''s revision petition challenging the impugned order dated 21.01.2011 of the Rent Controller and

order dated 03.08.2011 of the Appellate Authority, Patiala whereby his application filed under Order 9, Rule 13 C.P.C for setting aside the

exparte order of eviction dated 17.03.2006 passed against him, has been rejected.

In brief, the case of the petitioner is that respondent Rajesh Kumar filed an ejectment application against him, in which no service was effected

upon him and he did not receive any summon from the Court. The Process Server had made a wrong report regarding the service of the petitioner

in connivance with respondent-Rajesh Kumar He came to know about exparte judgment dated 17.03.2006. when bailiff came with warrants of

possession for delivery of possession of demised premises to respondent-Rajesh Kumar on 10.07.2006. Hence, an application for setting aside

the aforesaid exparte eviction order was filed.

The application was contested by the respondent-landlord on the ground that the petitioner was duly served and he has refused to accept the

summons. The Court issued a proclamation against the petitioner which was also duly effected as per law by the process serving agency of the

Court. Thus, the petitioner has sufficient knowledge of exparte proceedings against him and had not appeared deliberately despite knowledge. It

was further stated in the written statement that an application was filed under Order 9, Rule 13 C.P.C beyond the limitation.

While dismissing the application under Order 9 Rule 13 CPC, the Rent Controller observed as under:

Their rival contentions have been considered and have gone through the record on file. In this case, first and foremost questions are regarding the

question as to whether the application under reference has been filed within prescribed period. As per pleadings of applicant he came to know

about ex-parte order against him only when Bailiff of court came to effect service of warrants of possession of his house on 10.7.2006, on the

other hand, plea of the respondent Rajesh Kumar is that Bailiff of court had gone with warrants of possession on 10.6.2006 so applicant Gian

Singh cannot say that he came to know about order only on 10.7.2006. For this, respondent Rajesh Kumar apart from his own deposition has

examined Sh. Krishan Kumar Bailiff who has deposed vide affidavit Ex. RW2/A to the effect that on 10.6.2006 he along with DH and witnesses

had gone to house of Gian Singh, but Gian Singh refused to give possession of house and became ready for quarrel. He has proved copy of

warrants and his reports as well as his report qua dispute arisen at the spot as referred above. Applicant Gian Singh in his cross-examination has

clearly deposed rather admitted that he had come to know about warrants of possession 10.6.2006 but it is correct that he in his affidavit has

mentioned that he came to know about execution on 10.7.2006. In this way, applicant Gian Singh himself has admitted that on 10.6.2006 he knew

about warrants of possession. So, obviously he became aware about the exparte order in question dated 17.3.2006 on 10.6.2006. As per

provisions of law, applicant should have filed such application within one month from date of knowledge i.e. w.e.f. 10.6.2006 as discussed above

but he filed the application in hand on 19.7.2006. So the application under reference is patently time barred.

Moreover, act and conduct of the applicant Gian Singh is also to be considered in the main petition. Perusal of evidence on file clearly shows that

applicant Gian Singh was duly served in the main petition as perusal of file of main petition shows that while service of notice for 11.9.2003 was

done by Munadi and affixation on 10.9.2003. Similarly report on the notice for 8.8.2003 shows that present applicant Gian Singh had refused to

accept the service. Further perusal of file shows that after that respondent Rajesh Kumar produced three witnesses in support of his case and only

then that rent petition was allowed in ex-parte. In this way, conduct of the applicant Gian Singh is also not going to support his pleas as regard the

application under reference is concerned. Hence net result of above discussion is that applicant has failed to make out an ground to set aside the

ex-parte order dated 17.3.2006; specifically to the reason that application under reference is barred by limitation and it is not maintainable. Hence

all these issues are decided against the applicant and in favour of respondent.

Thus, after considering the evidence on record. the Rent Controller found that petitioner was duly served on 08.08.2003 and the said notices

were issued received back with the report of clear refusal on the part of Gian Singh and thereafter, Court had further adopted substitute mode of

service and proceeded to order a proclamation through Munadi and affixation for 11.09.2003. Petitioner was duly served through Munadiand

affixation for the date fixed However, none appeared on his behal and was proceeded exparte and in this manner, it is stated that despite

opportunity, the petitioner failed to appear.

Counsel for the petitioner has failed to point out any material on record on the basis of which, aforesaid findings of the authorities below could

be challenged before this Court.

In this view of the matter, I find no merit in this revision petition.

Dismissed.