Shri Dev Raj vs Harcharan Singh

D.V. Sehgal, J.—An ex-parte order of ejectment was passed against the tenant-Petitioner on 16.2.1976 by the learned Rent Controller, Chandigarh, on an application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 as applicable to Chandigarh (for short ''the Act'') filed by the landlord-Respondent. The Petitioner filed an application lor setting aside of the said ex-parte order of ejectment on 16 5 1976 stating therein that neither any Process Server nor any postman had ever contacted him for eeffcting service of summons on him regarding the application for ejectment nor had he ever refused to accept service. He further averred that he gained knowledge of the ex-parte order of ejectment on 7 5.1976 when he visited the Courts in connection with some other case. This application was. however, dismissed by the learned Rent Controller vide his order dated 2 5.1979, which has been challenged by the Petitioner by approaching this Court through the present revision petition.

The first question before me is whether the revision petition has been filed in this Court within the period of limitation. The learned Counsel for the Respondent pointed out that while the impugned order was passed by the learned Rent Controller on 2.5.1979, the revision petition was filed in this Court on 10.10.1979, which is, therefore, hopelessly barred by time. The learned Counsel for the Petitioner in reply to this legal objection explained that the impugned order dated 2.5.1979 was sought to be challenged by filing an appeal before the learned Appellate Authority, Chandigarh. This appeal was filed within a period of thirty days as prescribed by Section 15(2) of the Act. However, the same was held to be not maintainable by the learned Appellate Authority vide its judgment dated 8.9 1979. Certified copy of the judgment was applied for on 12 9.1979 The same was, however, not made available within a reasonable time and since the Respondent was taking steps to evict the Petitioner, the present revision petition was filed accompanied by a true copy of the judgment of the learned Appellate Authority on 10 10.1979. The certified copy was later on made available on 27.10 1979 which was then filed in this Court to accompany the revision petition. He, thus, submits that there was no intentional delay on the part of the Petitioner to file the revision petition in this Court. He further submits that there is no period of limitation prescribed for filing a revision petition u/s 15(5) of the Act.

After considering the rival submissions of the learned Counsel for the parties, I am of the view that this revision petition cannot be thrown out on the point of limitation. A perusal of the judgment dated 8.9.1979 of the learned Appellate Authority shows that the question whether or not the appeal before it could be maintained was quite contentious at that stage. After an elaborate discussion of the provisions of Section 15(1) of the Act, the notifications issued by the Government in pursuance of the said provisions and the judgments of this Court on the point, the learned Appellate Authority reached at the conclusion that the appeal before it was not maintainable. It, therefore, cannot be said that the appeal before it was filed mala fide. In fact, while the period of limitation for filing the appeal before it was 30 days only, the revision petition in the normal course could be filed within 90 days. It is not disputed that the appeal was filed well within 30 days before the learned Appellate Authority. Therefore, the prosecution of the appeal before the learned Appellate Authority was clearly bona fide and can at the worst be treated to be the result of wrong advice of the counsel, who filed the appeal. In fact, the question whether or not the appeal against an order refusing to set aside ex-parte order of ejectment passed by the Rent Controller is appealable continued to be a contentious one and was finally settled by a Full Bench of this Court in Daya Chand Hardayal v. Bir Chand 1987 (1) R.C.R. 306. Another judgment of this Court squarely answering the question is Mahant Garib Dass Chela Mahant Uttam Dass v. Smt. Harbans Kaur and Ors. (1987) 91 P.L.R. 133.

Besides, it is by now well settled by a catena of judgments of this Court that there is no period of limitation prescribed for filing a revision petition u/s 15(5) of the Act. Reference in this connection may be made to Rajinder Kumar v. Dr. Jaswant Rai Sood (1983) P.L.R. 177, Sh. Madhu Sudhan Lal Advocate, and Ors. v. Sh. Sadhu Ram and Ors. (1984) 86 P.L.R. 101. I, therefore, reject this legal Objection.

Then, coming to the merits of the case, the learned Counsel for the Petitioner invited my attention to the statement of Charanji Lal R.W. 1, the Process Server, who is alleged to have contacted the Petitioner to serve the summons on him and made a report of refusal and affixed a copy of the summons at the residence of the Petitioner. In his statement he admitted that he did not know the Petitioner personally. He came to know that the Petitioner is Dev Raj because he told him that he is Dev Raj. When the Petitioner refused to accept service of summons no one was present to witness his report of refusal to accept summons made by him. He reached the house of the Petitioner at about 8 AM. There were no doubt some ladies present there. He, thus, made no attempt to get the report of refusal to accept summons by the Petitioner attested from a witness He could not say whether the residential house of the Petitioner is a 71/2 Maria or a one Kanal house. He admitted that he was no longer in service. He has been removed from service because of some defalcation. The statement of Harcharan Singh landlord-Respondent as R.W.2 is of no avail for the reason that he was not present at the time when the service was sought to be effected through Charanjit Lal R.W. 1 Order V, Rule 17, Code of Civil Procedure, lays down that the report made by the Process Server regarding refusal to accept summons by the party on whom the same is sought to be served and consequent affixation of a copy of the same should mention the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. It is submitted by the learned Counsel that since no attempt was made by the Process Server to witness the refusal of summons and affixation of a copy thereof by any person in the locality, no reliance can be placed on his solitary statement. He has further invited my attention to the statements the Petitioner as AW 1 wherein he stated that he tendered the arrears of rent from 12.2.1975 to 11.7.1976 in the Court of Shri B. R. Gupta, Rent Controller, and later on he paid rent to the Respondent up to 11.4.1977. He, thus, submits that had the Petitioner been actually sought to be served, there was no reason for him to refuse service of summons and not to appear in Court and tender the arrears of rent which at the most would have been for a period of six months.

The learned Counsel for the Respondent, on the other hand, has contended that there is no reason why the statement of the Process Server should not be believed. He further submitted that summons by registered post in accordance with the provisions of Order V, Rule 19 A, Code of Civil Procedure, was also issued to the Petitioner but the same was received back by the Rent Controller with the report that in spite of repeated visits by the postman the Petitioner was not available and thus the registered cover was returned to the Court. He, thus, submits that it cannot be said that the Respondent manoeuvred the report of refusal from the Process Server. He also submitted that the Petitioner has not been able to show how he gained knowledge of the ex-parte order of ejectment on 7.5.1976 and since this has not been shown the application dated 16.5.1976 for setting aside the ejectment order dated 16.2.1976 was clearly barred by time.

After considering the rival contentions of the learned Counsel for the parties, I am of the considered view that the order of the learned Rent Controller refusing to set aside the exparte order of ejectment dated 16.2.1976 is neither legal nor proper. No doubt as laid down by the proviso to Order XIII, Rule 9, Code of Civil Procedure, no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the Defendant had notice of the date of hearing and had sufficient time to appear and answer the Plaintiff''s claim, but in the present case I am not at all satisfied that the Petitioner had notice of the date of hearing or he had sufficient time to appear before the learned Rent Controller. In fact, what I find is that the Process Server never contacted him ana the report of refusal of service by the Petitioner as recorded by him was managed by the landlord-Respondent. It cannot be believed that the Process Server R.W.1 went to effect service on the Petitioner, and without knowing him and getting him identified recorded his refusal. His statement that the Petitioner himself told his name cannot be believed. Before recording the report of refusal of summons it is incumbent on the Process Server to ascertain not only the identity of the party but also the place of its residence. For this purpose the assistance of a resident of the locality, in the normal course, should be sought for. Charanji Lal Process Server R W 1 was removed from service because of defalcations on his part. When he appeared in the witness-box he was no longer in service The statement made by him before the Rent Controller shows that he had no knowledge of the locality or the identity of the house where the Petitioner resided. I, therefore, find the statement of the Petitioner that the Process Server never contacted him to be correct. The view taken by the Rent Controller is contrary to the evidence on the record and is, therefore, reversed.

The occasion how the Petitioner got knowledge of the ex-parte order of ejectment was provided by a subsequent ejectment application filed by the Respondent. As noticed above, the Petitioner stated on oath that he had tendered rent for the period 12 2.1975 to 11.7.1976 in the Court of Shri B. R. Gupta, Rent Controller and he had also paid subsequent rent up to 11.4 1977 to the Respondent. It, thus, appears that successive eviction applications were being filed by the Respondent against the Petitioner on the ground of non-payment of rent. It is not disputed before me that the ejectment application in which the ex-parte order dated 16.2.1976 was also filed on the ground of non-payment of rent only. Thus, his statement that on 7 5.1975 on coming to the Courts in connection with another case he got knowledge of the ex-parte ejectment order appears to be plausible. It cannot be believed that the Petitioner did not have sufficient funds with him to tender the arrears of rent and that is why he refused the service of summons. In fact, on a subsequent date he tendered rent for a period of one year and five months at a time, i. e. from 12.2 1975 to 11.7.1976. In the ejectment application in which the ex-parte ejectment order has been passed against him, the rent which he was required to be tendered was at the maximum for a period of seven months as the said ejectment application was filed on 19.9.1975 and the rent was due from 12.12.1975. I, therefore, cannot rule out the possibility that the landlord-Respondent was trying by any means to secure eviction of the Petitioner from the demised premises, which is a booth situated in the industrial area, Chandigarh, and is a non-residential building. Such a building cannot be easily got vacated under the provisions of the Act In my view, therefore, the learned Rent Controller ought not to have adopted the rigid measure of assessment of evidence as he has done.

Consequently, I allow this revision petition, and set aside the impugned order of the learned Rent Controller dated 2.5.1979. I allow the application of the Petitioner and set aside the order of ejectment passed by the learned Rent Controller on 16.2 1976. The parties are, however, left to bear their own costs.

The parties through their counsel are directed to appear before the learned Rent Controller for taking further proceedings on 19.10.1987.