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2007 DIGILAW 1224 (PNJ)

Gurpartap Singh v. Rajinder Kumar

2007-05-28

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. (Oral) - The present revision petition has been filed against the order dated 23.8.2004 passed by the learned Rent Controller, Khanna vide which application moved by the petitioner under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree dated 3.8.2000, has been ordered to be dismissed. 2. The respondent landlord has filed a petition for eviction of the petitioner from the tenanted premises. Due to non-appearance of the petitioner ex parte proceedings were ordered and resultantly ex parte decree of ejectment was passed. Thereafter petitioner moved an application for setting aside the said ex parte order passed by the learned Rent Controller primarily on the ground that no service was effected on the petitioner. However, the learned Rent Controller dismissed the application by invoking the proviso to Order 9 Rule 13 CPC. 3. The learned counsel for the petitioner vehemently contends that the zimini orders on record show that the learned Rent Controller was wrong in ordering substituted service under Order 5 Rule 20 CPC first without taking steps to serve the petitioner by ordinary means. He made reference to the orders passed by the Rent Controller, which read as under :- "Rajinder Kumar v. Gurpartap Singh etc. Present :- Counsel for the petitioner. Report of the reader seen. Petition be registered. Notice of main petition as well as of the application be issued to the respondent for 14.6.1996 on PFRC. Sd/- R.C. Khanna 19.4.1996 Present :- Counsel for the petitioner. Defendant No. 2 is evading service. They be summoned through substituted service through Munadi & affixation for 24.9.1996 on deposit of necessary cheques. Defendant No. 1 be again summoned for date fixed on filing of correct address & RC. Sd/- Rent Controller 14.6.1996 Present : Counsel for the plaintiff. Munadi not received back. Same be issued again for 30.10.1996 an old charges. Present : Counsel for plaintiff. Munadi issued against the defendant not received back. Same be issued again for 18.12.1996 on old charges. Sd/- RC 30.10.2006 Present :- Counsel for the parties. Munadi against defendant No. 2 effected. None has come present on behalf of the defendant No. 2. Case called repeatedly. It is already 2.30 p.m. Notice issued to Respondent No. 1 received back with the report of refusal. Respondent No. 2 be summoned for 19.2.1997 through Munadi and affixation. Necessary charges be deposited within three days. Munadi against defendant No. 2 effected. None has come present on behalf of the defendant No. 2. Case called repeatedly. It is already 2.30 p.m. Notice issued to Respondent No. 1 received back with the report of refusal. Respondent No. 2 be summoned for 19.2.1997 through Munadi and affixation. Necessary charges be deposited within three days. Sd/- RC 18.12.1996. Present :- Counsel/defendant No. 2 ex parte Munadi received back duly effected. None has come present. Case called several times during the day. It is already 3.45 p.m. None has come present on behalf of respondent No. 1. Respondent No. 1 is therefore, proceeded against ex parte. Adjourned to 23.7.1997 for PWs. Sd/- RC 19.2.1997." 4. The learned counsel for the petitioner has also placed reliance on the judgment of this Court in the case of Gurinder Singh Sodhi v. Ramesh Kumari and others, 1997(2) Civil Court Cases 23 (P&H) to contend that the Court is bound to serve the parties personally and in case the defendant refuses to accept the service or cannot be found then the summons to be affixed on the outer door or some other conspicuous part of the house where the defendant ordinarily resides or carries on his business or personally works for gain. It has further been argued that mere informing the petitioner about the pendency of suit does not absolve the Court of performing its duties. The learned counsel for the petitioner also placed reliance on the judgment of this Court in the case of Ajit Singh v. Santokh Singh, 2004 RCR(Civil) 13 to contend that it was incumbent upon the Court to record that it was not possible to serve a party by ordinary means before ordering substituted service. The final contention of the learned counsel for the petitioner is that the order may be set aside on payment of costs. 5. I have considered the arguments of the learned counsel for the petitioner and find no force in the same. A reading of the impugned order shows that the petitioner himself has filed a suit for injunction restraining the respondent landlord from interfering in peaceful possession except in due course of law. 5. I have considered the arguments of the learned counsel for the petitioner and find no force in the same. A reading of the impugned order shows that the petitioner himself has filed a suit for injunction restraining the respondent landlord from interfering in peaceful possession except in due course of law. In the suit written statement was filed in which it was specifically mentioned that a petition under Section 13 of the Punjab Urban Rent Restriction Act, 1949 has been moved against the petitioner and the next date of hearing was also mentioned therein. Thus, it was proved on record that the petitioner has the knowledge of the proceedings as well as the date of hearing. In the judgment relied upon by the petitioner there was no such situation where a dispute inter se between the parties was pending in which the details of the petition as well as the next date of hearing was specifically mentioned giving due intimation to the petitioner. Thus judgments relied upon by petitioner have no application to present case. Even otherwise the zimini orders reproduced above, show that the Court had made an attempt to serve the petitioner and even service thereafter was effected through substituted service, though the learned counsel for the petitioner has vehemently disputed the same. However, the reading of the impugned order shows that the orders passed by the learned Rent Controller were based on the finding of proviso to Order 9 Rule 13 CPC wherein it has been provided as under :- "Provided further that 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 plaintiffs claim." 6. In the present case the date of hearing as well as the particulars of the case were also within the knowledge of the petitioner and it shows that the petitioner and consequently the learned Rent Controller was right in dismissing the application moved under Order 9 Rule 13 CPC. The jurisdiction exercised by the learned Court below is in consonance with the proviso to Order 9 Rule 13 CPC and does not call for any interference by this Court under Article 227 of the Constitution of India. Dismissed. Petition dismissed.