Ramesh Kumar vs Rameswar Dass

D.V. Sehgal, J.—This revision petition is directed against the order dated 3rd December, 1986 of the ld. Rent Controller, Jagraon, whereby an application filed by the tenant Petitioner for setting aside an ex-parte order of ejectment dated 29th Sep., 1983 has been dismissed.

The Petitioner is a tenant of a shop under the Respondent who is its landlord at a monthly rent of Rs. 275 with effect from 26th Nov., 1981. The Respondent filed an ejectment application against the Petitioner u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 for short ''the Act'') for his ejectment on the ground that he has neither paid nor tendered rent for the period from 26th Dec, 1982 to 7th June, 1983. The amount of rent thus due, was Rs. 1400. Summons for service on the Petitioner was issued by the Rent Controller. A report was made thereon by the Process Server that the Petitioner had refused to accept service of the same and that he had affixed a copy of the summons at the premises in dispute. On receipt of this report the learned Rent Controller passed an order on 24th Sep., 1983, whereby he directed the Petitioner to be proceeded against ex-parte. After receiving ex-parte evidence of the Respondent, the ld. Rent Controller passed an order of ejectment against the Petitioner on 29th Sept. 1983. The Petitioner made an application on 5th Oct., 1983 for setting aside the aforesaid ex-parte order of ejectment stating therein that he was never served with the summons nor did he ever refuse service of the same. No copy of the summons had been affixed at the premises in dispute and that he gained knowledge of the ex-parte order of ejectment when the Respondent told him about the same. This application has, however, been dismissed by the ld. Rent Controller vide order under revision.

The Petitioner in the first instance sought remedy against this order of the ld. Rent Controller by filing an appeal against the same before the ld. Appellate Authority on 2nd Jan., 1987. An appeal before the Appellate Authority lies against an order of the Rent Controller u/s 15(1) of the Act in such classes of cases as may be specified by the State Government by a general or special order. The appeal remained pending before the ld. Appellate Authority from 2nd Jan., 1987 to 26th Mar. 1987 an which an objection was taken on behalf of the Respondent that the order of the ld. Rent Controller which had been appealed against does not fell within the class of cases from which appeal is maintainable u/s 15(1) of the Act. The Petitioner thereon made an application before the ld. Appellate Authority for allowing him to withdraw the appeal so as to file a revision petition in this Court. However, on 31st March, 1987 the appeal was dismissed by the ld. Appellate Authority as being not maintainable. The present civil revision was filed in this Court by the Petitioner on 2nd April, 1987. C.M. No. 1752 CII of 1987 for condonation of delay for filing the revision petition in this Court was also filed by the Petitioner along with the petition.

When the Civil Revision and the civil miscellaneous application came up for motion hearing before J.V. Gupta, J. on 6th April, 1987, a request made by the ld. Counsel for the Petitioner was recorded to the effect that he wanted to file an affidavit of the counsel as to under what circumstances the appeal was filed before the ld. Appellate Authority. The counsel also gave an undertaking that the Petitioner shall deposit the entire arrears of rent upto date with 12% interest. The motion hearing was adjourned to 24th April, 1987 as is evident from the order dt. 30th April, 1987 of J.V. Gupta, J. The Petitioner deposited the arrears of rent amounting to Rs. 17,950 with effect from 1st Jan., 1983 to 30th April, 1987 at the rate of Rs. 275 per month. An affidavit of Shri Jasbir Singh Dhaliwal Advocate who presented the appeal before the Appellate Authority was also filed. The revision petition was, therefore, admitted and the civil miscellaneous application for condonation of delay was ordered to be heard along with the same.

In the first instance, I have heard the ld. Counsel for the parties on the civil miscellaneous application. It is not in dispute that the appeal was filed before the Appellate Authority within a period of 15 days as prescribed by Section 15(2) of the Act. The affidavit of Shri Jasbir Singh Dhaliwal Advocate contains a deposition to the effect that he honestly believed that the application for setting aside the ex-parte order of ejectment was akin to an application under Order 9 Rule 13 of the CPC (for short ''the Code'') and that since the principles of the Code are applicable to the proceedings under the Act he filed the appeal before the appellate authority against the order dismissing the aforesaid application bona fide. He further deposed that it was only on 25th Mar. 1987 that the ld. Counsel for the Respondent raised the contention that the appeal was not maintainable and relied on a judgment of this Court in Babu Ram and Anr. v. Gordhan Dass 1984 (1) RLR 324. He then studied that law and found that even though the earlier rulings were contrary to the latest judgment the appeal was not maintainable before the Appellate Authority. He moved an application before it for withdrawal of the appeal on 26th Mar. 1987 so as to present a revision petition in this Court but the appeal was ultimately dismissed on 31st Mar. 1987 and was not returned to him. The facts deposed to by Shri Jasbir Singh Dhaliwal make it clear that the appeal was filed by the Petitioner before the Appellate Authority acting on the bona fide advice of his counsel. He could file the revision petition in this Court within a period of three months from the date of the order of the Rent Controller but he hastened to file the appeal before the Appellate Authority within the prescribed period of 15 days. After dismissal of the appeal he had to engage another counsel and filed the present revision petition in this Court. Had he been aware of the fact that the appeal was not maintainable he would not have wasted time and money in filing an appeal before the Appellate Authority? It is evident that after dismissal of the appeal without losing any time the revision petition was filed. I am, therefore, satisfied that the Petitioner had sufficient cause for not filing the revision petition in this Court within the prescribed time. Consequently, I allow the civil miscellaneous application and condone the delay.

Now coming to the merits of the revision petition, I find that the ld. Rent Controller took a very rigid view. Application for setting aside the ex-parte ejectment order was filed within about a week after the ejectment order was passed and it was, therefore, well within limitation. The Petitioner is carrying on business of sale of fertilizers in the shop. The rent due was Rs. 1,400/- only. There was no reason for the Petitioner not to accept the summons. The ground for eviction would have been rendered in fructuous the moment be had tendered rent of Rs. 1,400 along with costs and interest on the first date of hearing the statement of the Process Server in the Court is that he first went to the landlord and by taking him along he went to effect service on the Petitioner. The witness on the report of the Process Server, namely, Jagan Nath R.W. does not belong to the locality where the shop in dispute is situated under Order 5 Rule 19-A of the Code, the Rent Controller in the ordinary circumstances ought to have directed that summons of the ejectment application should be served on the Petitioner by a registered post acknowledgement due in addition to and simultaneously with the issue of summons for service in the ordinary manner but this was not done. The possibility of collusion between the Process Server, the landlord and the witness to the report of the Process Server cannot be Ruled out. It has been held by S.P. Goyal, J. in Girdhari Lal v. Ajay Kumar and Anr. 1985 (2) PLR 253, that the rent laws have, been enforced by the Legislature for the protection of the tenants from the vagaries of their landlords. The whole purpose of the Legislature would be defected if the rent Controller allows the landlords to abuse the process of the Court to seek ex-parte ejectment orders fraudulently. While ordering ex-parte proceedings on a report of refusal, the provisions of Rule 19 Order 5, of the Code, require the Court to satisfy itself regarding the genuineness of such report before declaring summons to have been duly served. The duty cast on the Rent Controller in a petition for ejectment of the tenant from a business premises would be stringent in this regard because the shop cannot ordinarily be got vacated and the landlords often resort to fraudulent means to get the ex-parte ejectment orders.

The above observation in Girdhari Lal''s case apply to the present case. I am convinced that the report of refusal to accept summons recorded by the Process Server and his report to the effect that he had affixed a copy of the same on the premises in dispute ought not to have been treated as sufficient service on the Petitioner particularly when summons by registered post was not sent to the Petitioner under Order 5, Rule 19-A of the Code. The ex-parte order of ejectment passed as a consequence ought to have been set aside on the application which was moved by the Petitioner without losing much time.

I, therefore, allow this revision petition, set aside the order dated 3rd Dec, 1986 passed by the ld. Rent Controller. I further allow the application of the Petitioner and set aside the ex-parte order of ejectment dated 29th Sept., 1983 passed by the Rent Controller subject to payment of Rs. 300/- as costs by the Petitioner to the Respondent, and direct him to allow the Petitioner to enter on his defence and contest the ejectment application on merits. There shall, however, be no order as to costs as regards the present revision petition.

The parties through there Id. counsel are directed to appear before the Id. Rent Controller, Jagraon, for further proceedings on 18th Sept., 1987.