M/s. Saran Singh Waryam Singh vs Shri Jit Singh

J.V. Gupta, J.—This petition has been filed on behalf of the tenant whose application for setting aside the ex parts ejectment order was dismissed.

Jit Singh, landlord, filed an ejectment application against his tenant M/s Saran Singh Waryam Singh on 30th March, 1977. The tenant was proceeded against ex parte on 11th November, 1977, on the basis of the service said to have been effected by munadi. Ultimately, ex parte order of ejectment was passed on 17th April, 1978. Immediately thereafter on 26th July, 1978, the tenant who, came to know for the first time of the ejectment order against him, moved an application for setting aside the ex parte order dated 17th April, 1978. This application was contested on behalf of the landlord. The Rent Controller framed the following issues:

Whether there are sufficient grounds to set aside the ex parte ejectment order. OPJD.

Relief.

The learned Rent Controller found that substituted service on the tenant was not proper as the provisions of Order 5, Rule 20, CPC were not complied with. However, the learned Rent Controller dismissed the application on the ground that it was barred by time as the tenant had the knowledge of the ejectment order on 5th October, 1977, when his son Dalbir Singh received a registered envelope from the court of the Rent Controller for service on the tenant of the ejectment application. Dissatisfied with the same the tenant has filed this petition in this Court.

After hearing the Learned Counsel for the parties, I am of the considered view that the whole approach of the Rent Controller is illegal and improper and he has acted illegally and with material irregularity in the exercise of his jurisdiction causing failure of justice. After having found that the substituted service on the tenant was not proper, the application could not be dismissed as being barred by time. Article 123 of the Limitation Act provides as period of 70 days from the date of the decree or where the summons or notice was not duly served, when the applicant bad knowledge of the decree. After holding that there was no valid service on the tenant it could not be held that that the limitation was thirty days from the date of the decree. In that situation the limitation of thirty days will be from the knowledge of the decree which was 24.7.1978 when the execution was sought Under the circumstances the Learned Counsel for the landlord was also unable to justify the order of the Rent Controller dismissing the application for setting aside the ex parte order. Consequently, ex parte ejectment order was liable to be set aside. The Rent Controller is directed to set aside the said order keeping in view the observations made above. The parties have been directed to appear in his Court on 21.5.1984. The records of the case be sent back forthwith. It is further made clear that the arrears of rent, if any, will be deposited or tendered by the tenant on the date when the ex parte ejectment order is set aside by the Rent Controller keeping in view the observetions made earlier.