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2008 DIGILAW 1750 (PNJ)

Darshan Lal v. Jaswant Singh

2008-10-17

KANWALJIT SINGH AHLUWALIA

body2008
Judgment Kanwaljit Singh Ahluwalia, J. 1. In the present case, landlord Jaswant Singh Bhatia - respondent had instituted a petition under Section 13 of the East Punjab Rent Restriction Act for ejectment of the petitioner on the ground of nonpayment of rent. It was further alleged that the petitioner has ceased to occupy the shop since 5th July, 2003 and petitioner required the shop in question for his own use and occupation. Personal necessity was impleaded. Petitioner was proceeded ex-parte and his eviction was ordered on 26th September, 2005. 2. On 3rd August, 2006, petitioner filed an application under Order 9 Rule 13 for setting aside ex-parte ejectment order passed on 25th September, 2005. The application for setting aside the ex-parte eviction order was filed through General Power of Attorney Kewal Krishan. It was averred therein that the tenant - petitioner was not duly served. Process Server never came and no service of summons was effected. It was further pleaded that no substituted service of the summons or by publication was ever effected. Neither the summons were served through the authorized Courier Agency, nor any other mode of service was opted. A false report has been procured by the landlord. It was stated in the application that the landlord came to know the factum of ejectment on 30th July, 2006 and therefore, application is within limitation. Reply was filed by the landlord - respondent, in which it was stated that the tenant intentionally evaded service of summons. Thereafter, a notice, by way of publication in `Des Sewak newspaper, was served. 3. The Rent Controller framed the issues and recorded the evidence. The Rent Controller, after considering the rival submission, formulated opinion that there are sufficient grounds for setting aside the ex parte order dated 26th September, 2005. The following finding was returned by the Rent Controller : "14. The totality of the facts clearly shows that there was no proper service of the tenant. The interest of justice requires that the ex parte order should be ordinarily set aside and no party should be condemned unheard. So, under these circumstances, there are sufficient ground to set aside the ex parte order dated 26.9.2005. Therefore, this issue is decided in favour of the applicant and against the respondent." 4. The interest of justice requires that the ex parte order should be ordinarily set aside and no party should be condemned unheard. So, under these circumstances, there are sufficient ground to set aside the ex parte order dated 26.9.2005. Therefore, this issue is decided in favour of the applicant and against the respondent." 4. Having arrived at the above finding, Rent Controller further concluded that from evidence, it is made out that the tenant had knowledge of the ex-parte decree in May 2006, therefore, claim of the applicant - tenant that he became aware of the decree only on 30th July, 2006, is not tenable. Reliance was placed upon the admission made by the Attorney of the tenant Kewal Krishan in cross-examination that he became aware in May 2006 and eviction has been ordered. Since the application has been filed beyond 30 days from the date of knowledge, therefore, ex-parte order of eviction cannot be set aside. 5. Counsel for the petitioner has stated that it has been held by this Court in Inderjit Pal v. Shankar, 1985(1) RCR(Rent) 508 (P&H), that provisions of the Limitation Act are not applicable to the application for setting aside ex-parte order. It was further held that no limitation has been prescribed by the Act for this purpose. Consequently, the finding that application for setting aside ex-parte order is barred by limitation, cannot be sustained. The view taken in Inderjit Pals case (supra) has also been reiterated in Brij Mohan Aggarwal v. Laxmi Narayan @ Lachhu, 2001(1) RCR(Rent) 128 (P&H) and it was held as under : "5. A Division Bench of Delhi High Court in the case of Shri Subhash Chander v. Shri Rehmat Ullah, 1972 Rent Control Reporter 977 (Delhi) was concerned with relevant provisions of Delhi Rent Control Act, 1958. Under the provisions of Delhi Rent Control Act, the Court of the Controller is not for all practicable purposes a Court nor the Code of Civil Procedure in entirety applies with all vigour and strength. It was held that keeping in view this fact, the provisions of Indian Limitation Act would also not be attracted. Same view prevailed with this Court in the case of Inderjit Pal v. Shankar, 1985(1) Rent Control Reporter 508 and it was held :- "It is now well settled that the Rent Controller is not a court. It was held that keeping in view this fact, the provisions of Indian Limitation Act would also not be attracted. Same view prevailed with this Court in the case of Inderjit Pal v. Shankar, 1985(1) Rent Control Reporter 508 and it was held :- "It is now well settled that the Rent Controller is not a court. He is an officer persona designata, specially authorised to adjudicate upon disputes relating to urban property concerning ejectment and determination of fair rent of urban properties. The provisions of Limitation Act are not applicable to the proceedings before the Rent Controller exercising jurisdiction under the Act. The provisions of the Act are substantially the same as the provisions of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Punjab Act)". 6 That being the position in law, the Controller could not have dismissed the petition on the ground of limitation but was competent to consider if there is inordinate delay and laches." 7. It is not disputed that Rent Controller, Amritsar had passed the ex parte order in the eviction petition preferred by the landlord. On 3.7.2008 while issuing notice of motion, a Co-ordinate Bench passed the following order :- "Having found that the petitioner was not properly served, the court has still dismissed the application for setting aside the ex parte order passed by the Rent Controller by saying that the application was not filed within the period of limitation. Notice of motion for 8.9.2008. Dispossession shall remain stayed till further orders." 8. Mr. Puneet Jindal has stated that attorney of the tenant had appeared and his deposition cannot be taken into consideration. As to when service was effected on the tenant, this fact is only in the knowledge of the tenant and attorney is not in a position to state that fact. Mr. Jindal has relied upon a Single Bench judgment of this Court in Manmohan Singh v. Smt. Narinder Kaur, 2008(4) RCR(Civil) 81 : 2008(2) RCR(Rent) 210 : 2008(3) PLR 415 to contend that evidence of attorney cannot be taken into consideration. Argument advanced by Mr. Jindal is self damaging. Rent Controller has, from the statement of Kewal Krishan attorney, had concluded that tenant became aware of ex parte decree in May 2006 and not on 30th July, 2006. If argument of Mr. Argument advanced by Mr. Jindal is self damaging. Rent Controller has, from the statement of Kewal Krishan attorney, had concluded that tenant became aware of ex parte decree in May 2006 and not on 30th July, 2006. If argument of Mr. Jindal is accepted, this is to be excluded and application will not be barred by limitation. Be that as it may, this authority is not applicable to the facts of the present case as that was not a case of ex parte order and even otherwise, I am deciding the present petition on the larger principles of fair play, equity shorn of all hyper technicalities. 9. A tenant cannot be evicted without affording reasonable opportunity to defend his case. Fair play demands that sufficient opportunity should be granted to him to project his case before the Rent Controller. Accordingly, the order passed by the Rent Controller whereby eviction of the tenant was ordered ex parte is set aside. Parties are directed to appear before the Rent Controller on 14.11.2008. However, in this case the landlord ought to be compensated, in order to balance the equities. Mr. Mahajan states that he is ready to pay the costs. Costs is assessed at Rs. 5,000/-. Same be paid on the date of appearance before the Rent Controller. 10. Mr. Jindal states that the landlord had filed the eviction petition on account of personal necessity and the petition was instituted on 15.6.2004. Rent Controller shall keep this fact into account and make an attempt to expedite the proceedings and decide the case at the earliest by giving short dates, if possible.