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2001 DIGILAW 1255 (PNJ)

Anil Chopra v. Sohan Lal

2001-11-08

R.L.ANAND

body2001
Judgment R.L.Anand, J. 1. This is a civil revision and has been directed against the order dated 13.2.2001 passed by Civil Judge (Sr. Division), Hoshiarpur, who dismissed the application of the tenant under Order 9 Rule 13 C.P.C. for setting aside the ex parte order dated 16.7.1999. 2. Some facts can be noticed in the following manner :- Sohan Lal son of Hari Ram filed an ejectment application under Section 13 of the East Punjab Urban Rent Restriction Act seeking ejectment of the tenant from the demised premises on the ground of non-payment of rent by making allegations that the tenant has neither paid nor tendered the arrears of rent w.e.f. July, 1998. The ejectment application was filed on 30.3.1999. Notice of the application was given to the respondent and as per the order of the learned Rent Controller dated 16.7.1999 the respondent was served but he did not appear despite service and, therefore, he was proceeded ex parte. The landlord led ex parte evidence before the Rent Controller who passed the ejectment order dated 16.7.1999 directing the respondent to vacate the demised premises within two months. Thereafter, the landlord filed an execution application in which notice was issued to the judgment-debtor. Resultantly, he filed the application under Order 9 Rule 13 CPC for setting aside the ex parte order of ejectment on 2.11.1999. It was pleaded by the applicant/tenant that the landlord managed a wrong report on the summons. He managed wrong ex parte order also. The applicant came to know about the passing of ejectment order when he received the summons in the execution on 30.10.1999. On enquiry he came to know that he has been proceeded ex parte. Notice of that application was given to the landlord, who filed reply and denied the allegations. According to the respondent, the petitioner/tenant was duly served and there is no sufficient ground to set aside the ex parte ejectment order. 3 From the pleadings of the parties, the learned executing court framed the following order :- "1. Whether there are sufficient grounds for setting aside ex parte proceedings ? OPP 2. Whether the application is barred by time ? OPR 3. Relief." 4. The parties led evidence in support of their respective cases and vide impugned order dated 13.2.2001 the application under Order 9 Rule 13 CPC was dismissed. Hence the present revision. 5. I have heard Mr. OPP 2. Whether the application is barred by time ? OPR 3. Relief." 4. The parties led evidence in support of their respective cases and vide impugned order dated 13.2.2001 the application under Order 9 Rule 13 CPC was dismissed. Hence the present revision. 5. I have heard Mr. Puneet Bali, Advocate on behalf of the petitioner, Mr. Shakti Singh, Advocate on behalf of the respondent and with their assistance have gone through the records of this case. 6. The learned counsel for the petitioner submitted that his client was never duly served. He came to know about the ex parte order of ejectment on 30.10.1999 and without losing any time he filed the application under order 9 Rule 13 C.P.C. It was also submitted on behalf of the learned counsel for the petitioner that his client has already deposited the claimed arrears of rent in the subsequent ejectment petition which was filed by the landlord. He should be given the chance to contest the proceedings. The absence of the tenant was not wilful and no sane tenant in the modern time will like to be ejected from the commercial premises when he had already paid the rent in the subsequent proceedings. On the contrary, the learned counsel for the respondent vehemently submitted that the petitioner Anil Chopra was duly served. He intentionally did not appear before the learned Rent Controller and in these circumstances the ex parte ejectment order was passed against him. It was also pleaded by the learned counsel for the respondent that the executing Court has rightly considered the evidence and came to the conclusion that no sufficient cause has arisen for setting aside the ex parte order of ejectment. 7. I have considered the rival contentions of the parties and am of the opinion that the order of ejectment should be set aside. In my opinion, there was no due service upon the tenant in the ejectment petition. During the course of submissions my attention has been invited to the statement of Sukhbir Singh, Process Server. A reading of the same would show that the said Process Server has not complied the legal formalities. He has admitted in his cross-examination that earlier to the service he did not know Anil Chopra. It has also come in the statement of this witness that he did not get Anil Chopra identified from anybody before effecting the service. A reading of the same would show that the said Process Server has not complied the legal formalities. He has admitted in his cross-examination that earlier to the service he did not know Anil Chopra. It has also come in the statement of this witness that he did not get Anil Chopra identified from anybody before effecting the service. This statement is enough for me to say that it was not a proper service upon the tenant. The learned counsel for the petitioner has also invited my attention to Joginder Paul v. Mahant Jamna Gir Chela Bawa Ganga Gir, Mahant Mandir, Sat Narain, G.T. Road, Phagwara, 1988(2) PLR 546 : 1989(1) RCR(Rent) 135 (P&H), where it was observed by the Honble Lordship that ex parte order of ejectment on the ground of non-payment of rent should ordinarily be set aside and that no party should be condemned unheard. It was also observed by His Lordship that when it is not the case of the landlord that at the relevant time the tenant was not in a position to tender the arrears of rent, in such a situation the ex parte order of ejectment should be set aside. In the present case also, the tenant has proved his bona fide when he has tendered the arrears of rent claimed in the subsequent ejectment proceedings which were filed by the landlord. 8. Faced this difficulty, the learned counsel for the respondent has invited my attention to Babu Ram Bhatnagar v. Satish Kumar Rawal, 1991(2) PLR 234. In my opinion, this judgment goes against the respondent and favours the petitioner. The Honble Division Bench has categorically held that before proceeding ex parte against person, the Court must be satisfied that there was due service. As I have held in the present case that there was no due service upon the tenant, therefore, the learned Rent Controller committed a patent illegality causing serious prejudice to the petitioner in passing the ejectment order. It may also be mentioned here that the report of the Process Server is not attested from any person in the locality in order to show that Anil Chopra was duly informed about the proceedings supported by a copy of the petition under Section 13 of the said Act. 9. Resultantly, I allow this revision, set aside the order of the learned Rent Controller subject to payment of Rs. 9. Resultantly, I allow this revision, set aside the order of the learned Rent Controller subject to payment of Rs. 2,000/- as costs and direct the parties to appear before the Rent Controller, who is directed to readmit the petition to its original number and dispose of the same according to law. 10. Parties through their counsel are directed to appear before the learned Rent Controller on 3.12.2001.