Joginder Paul vs Mahant Jamna Gir Chela Bawa Gir

N.C. Jain, J.—This revision petition has been filed by the tenant against the order of the Learned Rent Controller by which application for setting aside the ex-parte order of eviction has been dismissed on merits as well as on the point of limitation.

Exparte order of eviction was passed on the ground of non-payment of rent against the petitioner on 6.10.1977 by the Learned Rent Controller. The petitioner filed an application on 16.3.1978 and it was stated therein that the petitioner learnt of the ex-parte order only a day earlier; that he was never served with any notice and that the ejectment order has been obtained by misusing the process of the court.

The petitioner stepped into the witness box and has stated on oath that he never refused to accept the service and that no Munadi was effected. He has further stated on oath that he did not refuse any registered A.D. letter.

After going through the statement of the witnesses and other evidence brought on the record of the case, I am fully satisfied that the petitioner has not been duly served and that he never refused to accept service. There is nothing to disbelieve the petitioner. He could prove the non-service only by leading negative evidence which he has done. Moreover, Munadi man Mohinder Pal has appeared as petitioner''s witness and stated that he did not do Munadi and that only Munadi report bears his signatures, therefore, the case of the landlord to the extent of Munadi is apparently false. For this very reason Girdhari Lai, Process Server, AW3 who got Munadi done and who made an effort to effect service on the petitioner in the ordinary course cannot be relied upon. The evidence of postman also does not inspire confidence. Even otherwise, the interest of justice very much requires that the ex-parte orders should be ordinarily set aside and that no party should be condemned unheard. The present petition has been filed on the ground of non-payment of rent and it is not the case of the landlord that at the relevant time the petitioner was in such bad financial condition that he was not in a position to tender the arrears of rent.

While reversing the finding of the Learned Rent Controller under Issue No. 1, I further find that there is nothing to disbelieve the sworn testimony of the petitioner that he learnt of the ex-parte order dated 15.3.1978 and therefore, the application is held to be within time. Finding under Issue No. 2 is also reversed.

Taking an over all view of the facts and circumstances of the case. I am of the view that the ex-parte order must be set aside. Consequently, the impugned order passed by the Learned Rent Controller dated 7.3.1980 is quashed, and the revision petition is allowed. The parties through their Learned Counsel are directed to appear before the Learned Rent Controller on October 10, 1988. No costs.