Rattan Singh vs Harblas

C.G. Suri, J.—An ex-parte order of eviction on the ground of non-payment of rent was passed against the Petitioner by the Rent Controller

at Amritsar, on the application of the Respondent-landlord. The Petitioner filed an application for the setting aside of this order of eviction alleging

that there had been no proper service on him of the Court''s process and that he had come to know about the ex- parte order from some threats

held out by the landlord a couple of days before the filing of his application. The provision of law mentioned in the heading of this application is

order 9, Rule 13 of the Code of Civil Procedure.

The landlord pleaded that the Petitioner had deliberately kept away in spite of the knowledge of the proceedings and proper service on him of

the Courts process and that the application filed by him was time- barred.

The learned Rent Controller has given very cogent reasons for coming to the finding that the landlord had tried to suppress knowledge of the

proceedings from the Petitioner and that there was no proper service of the notices in the case. In spite of this finding the learned Rent Controller

has closely sifted the evidence examined by the Petitioner with regrard(sic) to the circumstances under which he came to know about proceedings

and the ex-parte order. After elaborate discussion, the learned Rent Controller disbelieved this oral evidence and found that the application filed 39

days after the passing of the ex-parte order of eviction was time-barred. The learned Rent Controller was not prepared to condone the delay of 9

days in filing this application in spite of the finding that the landlord had been guilty of practising a fraud on the Court and the Petitioner. This is a

typical case showing how a person may be led to hazy thinking by delving too deep into the slush of perjurred testimony. Where both parties were

found to have examined false evidenence, the party who had practised deception in addition should not have been allowed to retain the advantage

derived by the deceitful means. The Petitioner may appear to have put himself in a false position because he was expected to do something

physically impossible.

The first objection taken by the Respondent-landlord is that this revision petition filed by the tenant is not competent. If the provisions of Order

9 of the CPC were to be applicable to such cases before Rent Controller, an appeal would have been the proper remedy for the tenant. It was

however held in Laki Ram v. Sagar Chand (1963) 65 P.L.R. 691, that the appellate authority cannot entertain an appeal against an order passed

by the Rent Controller refusing to set aside an ex-parte order of eviction. It would therefore appear that a revision petition to the High Court was

the proper remedy which the tenant could adopt on the facts of this case. As no appeal is provided by law against such orders, the scope of a

revision u/s 15(5) of the East Punjab Urban Rent Restriction Act may not be quite as restricted as in revisions u/s 115 of the Code.

It was held in Manohar Lal L. Nadarchand Vs. Mohan Lal Gian Chand, Mathra Das v. Om Parkash (1957) 59 P. L. R. 45. that the Rent

Controller was not a Civil Court in spite of the fact that it exercises certain powers under the Code. The Rent Controller is only a persona disignata

who has to evolve his own procedure consistent with the general principles of natural justice and that he was not hampered by the technicalities of

the CPC or the Limitation Act. The Rent Controller had inherent power to set aside an ex parte order on sufficient cause being shown. In Charles

E. Ring v. The Collector of Bombay AIR 1948 Bom. 387., it was held that the Limitation Act does not apply to an application for such an order of

the Rent Controller exercising powers conferred on him by a special Act. In the exercise of his inherent powers he was to act exaebito justiliae to

do that real and substantial justice for the administration of which alone he exists. In view of the finding that the Respondent landlord had, in the

present case, tried to suppress service of process of Court on the Petitioner, delay of about 9 days in making an application should have been

condoned, even on an oral request.

""The period of limitation starts running against a Defendant from the date of the ex-parte decree or order on the assumption that he has been

duly served with summonses or notices and that he can well imagine what natural consequences are likely to have followed his failure to answer the

Court''s summonses. Where there is no proper service of the process of the Court, a party cannot be taken to have any knowledge about an order

passed in his absence and the non-existence of his knowledge about the ex-parte decree is a subjective state of his mind about which he can. only

make a bare statement. No positive proof or objective evidence can possibly exist about the non-existence of a state of mind or of lack of

knowledge and the bare statement of the person pleading lack of knowledge should shift the burden on the other party of proving facts which

could fix the party pleading ignorance with knowledge of the ex-parte order or of the proceedings in which that order was passed. If in such a case

the party in whose favour the ex-parte order has been passed can further be suspected of having tried to suppress proper service of the process of

the Court on the other party then very little evidence would be required to come to the conclusion that he was trying to practise a fraud on the

Court and also on his opponent. If in such a case we expect the Defendant to perform the rope trick, he is sure to be caught on the wrong foot and

to do something silly"". In this connection, the following observations of the Supreme Court in Panna Lal v. Murari Lal (5), could be reproduced

with advantage:

Under 0.9, R.13, C.P.C., a decree passed ex parte against a Defendant is liable to be set aside if the summons was not duly served or if the

Defendant was prevented by any sufficient cause from, appearing when the suit was called on for hearing. It the summons is not duly served, the

Defendant suffers an injury and he is entitled ex debito jtistilatiae to an order setting aside the ex parte decree provided he applies to the Court

within the prescribed period of limitation. Under Act. 161 of the Indian Limitation Act 1908, the period of limitation for an application by a

Defendant for an order to set aside a decree passed ex parte was 30 days from ""the date of the decree or when the summons was not duly served,

when the applicant had knowledge of the decree."" The onus is on the Defendant to show that the application is within time and that he had

knowledge of the decree within 30 days of the application. If the Defendant produces some evidence to show that the application is within time, it

is for the Plaintiff to rebut this evidence and to establish satisfactorily that the Defendant had knowledge of the decree more than 30 days before

the date of the application

And the Rent Controller had found that there was no due service of notice on the Petitioner and that the process server''s report about the

Petitioner having refused service or about the proclamation having been published at the spot did not inspire confidence, the delay of 9 days should

have been condoned even on the oral application of the tenant.

For reasons given above, I accept the revision petition and set aside the ex parte order of eviction obtained by the Respondent-land-lord against

the Petitioner. I leave the parties to bear their own costs.

Parties are directed to appear before Shri Amarjit Chopra, Rent Controller Amritsar, for further proceedings on 10th April, 1970.