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2011 DIGILAW 118 (PNJ)

Sheela Devi v. Financial Commissioner

2011-01-12

AJAI LAMBA

body2011
JUDGMENT Ajai Lamba, J. (Oral) - This judgment shall dispose of 3 writ petitions namely CWP No. 9365 of 2009 entitled Sheela Devi and others v. Financial Commissioner and others, CWP No. 9366 of 2009 entitled Chaman Lal and others v. Financial Commissioner and others and CWP No. 9367 of 2009 entitled Chaman Lal and others v. Financial Commissioner and others, as common questions of facts and law are involved. 2. For reference to record, CWP No. 9365 of 2009 entitled Sheela Devi and others v. Financial Commissioner and others is being taken up. 3. This civil writ petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing order dated 17.09.2008 Annexure P-8, order dated 03.03.2008 Annexure P-6, order dated 11.05.2006 Annexure P-4, order dated 19.10.2005 Annexure P-2 and order dated 17.11.2003 Annexure P-1. 4. Gist of the matter is that an application was filed on behalf of the petitioners for setting aside ex parte order of ejectment dated 17.11.2003, placed on record as Annexure P-1. The application has been dismissed by various authorities in the hierarchy under the Punjab Tenancy Act, 1887 (for short the Tenancy Act) read with Section 9 of the Punjab Security of Land Tenures Act, 1953. The factual details are required to be given. 5. The petitioners were tenants of landlord Harbans Lal S/o Bihari Lal impleaded in this petition as respondent No. 5. Since the petitioners did not pay rent, the respondent No. 5 filed a suit for recovery of arrears of rent for the crop period Kharif 1997 to Rabi 2000 under Section 77(n) of the Tenancy Act and also for ejectment of the respondents under Section 77 (e) of the said Act. The notice of the suit was sent to the petitioners who put in appearance through the counsel and the matter was adjourned from time to time for filing of reply by the petitioners. The petitioners, however, chose not to file reply. The matter was adjudicated and vide order dated 08.01.2003, placed on record by respondent No. 5 as Annexure R-5/1, it was directed that the petitioners shall pay Rs. 28,373/- as rent to the landlord. No adjudication in regard to the ejectment was, however, made. 6. The petitioners, however, chose not to file reply. The matter was adjudicated and vide order dated 08.01.2003, placed on record by respondent No. 5 as Annexure R-5/1, it was directed that the petitioners shall pay Rs. 28,373/- as rent to the landlord. No adjudication in regard to the ejectment was, however, made. 6. The petitioners accepted the order and did not file any appeal against the order passed by Assistant Collector 151 Grade, Gurdaspur dated 08.01.2003. 7. The landlord Harbans Lal-respondent No. 5 was aggrieved because there was no adjudication in regard to ejectment of the petitioners on account of non- payment of rent and, therefore, filed an appeal before the Collector. The Collector dealt with the issue and vide order Annexure R-5/2 dated 07.08.2003 held in the following terms : "To my mind if the decree of rent has been passed then the order regarding ejectment has also to be passed in detail, but in the instant case, the learned Lower Court has not even touched this issue which needs to be discussed and then passed a detailed order of ejectment. I fully agree with the arguments advanced by learned counsel for the appellant as prayed for and order to remand the case to Assistant Collector 1st Grade, Gurdaspur to decide all the claims mentioned in the grounds of appeal within 2 months from the receipt of this order. The parties are directed to appear before the Assistant Collector 1st Grade, Gurdaspur on 04.09.2003." 8. It would be pertinent to notice that as per the contents of order Annexure R-5/2, petitioners in writ petitions (respondents before the Collector) were duly represented before the Collector and were aware of the fact that the parties were to appear before Assistant Collector 1st Grade, Gurdaspur on 04.09.2003. 9. On remand, Assistant Collector 1St Grade, Gurdaspur issued notices to the petitioners (respondents before that authority). Neither the petitioners appeared through their counsel nor in person, although the case was adjourned to 17.10.2003 and then to 30.10.2003 and thereafter for 12.11.2003. The case was heard and decided on 17.11.2003 directing the ejectment of the petitioners from the suit land. 10. Against the order dated 17.11.2003, an application under Order Rule 13 of the Code of Civil Procedure was filed by the petitioners on 09.10.2005 i.e. after nearly two years, as informed by learned counsel for the petitioner. The case was heard and decided on 17.11.2003 directing the ejectment of the petitioners from the suit land. 10. Against the order dated 17.11.2003, an application under Order Rule 13 of the Code of Civil Procedure was filed by the petitioners on 09.10.2005 i.e. after nearly two years, as informed by learned counsel for the petitioner. The application has been dismissed by Assistant Collector lst Grade vide impugned order Annexure P-2. 11. The petitioners carried an appeal before Collector, Gurdaspur which had been dismissed vide order Annexure P-4 while taking into account the fact that at the point in time when the case was remanded for adjudication by Collector, Gurdaspur to the Court of Assistant Collector 1" Grade, Gurdaspur, the petitioners were duly represented and knew about the date of hearing for appearance before Assistant Collector 1St Grade. In such circumstances, the petitioners being aware of the pendency of the case and the date on which it was scheduled to be heard, it was not believable that the petitioners did not know about the pendency of the matter. 12. Aggrieved by order Annexure P-4, the petitioners carried a revision which has been dismissed vide order Annexure P-6, also impugned by way of this writ petition. The Commissioner while dealing with the revision petition has recorded finding of fact that the petitioners were fully aware of the pendency of the case before Assistant Collector 1st Grade and, therefore, the ground taken by the petitioners that they were not aware about the pendency of the case is not believable. 13. The petitioners carried revision to the Court of Financial Commissioner (Appeals), which has also been dismissed vide impugned order Annexure P-8 holding that there was no ground for interference as the petitioners knew about the pendency of the litigation. 14. Learned counsel for petitioners contends that Chaman Lal was pursuing the litigation before the authorities. A day before the passing of order on 07.08.2003, Chaman Lal was taken in custody in connection with a criminal case and, therefore, could not appear. The non-appearance is for bona fide reasons and, therefore, ex parte order is required to be set aside. 15. Learned counsel for petitioners contends that Chaman Lal was pursuing the litigation before the authorities. A day before the passing of order on 07.08.2003, Chaman Lal was taken in custody in connection with a criminal case and, therefore, could not appear. The non-appearance is for bona fide reasons and, therefore, ex parte order is required to be set aside. 15. Learned counsel further states that Assistant Collector 15t Grade, after remand of case by Collector and while taking up the matter under order Annexure P-2 issued notices to the petitioners, however, at the wrong address and, therefore, for that reason alone, the ex parte order is liable to be set aside. 16. Learned counsel for the respondent-landlord has argued that the conduct of the petitioners has consistently been mala fide in so much as the petitioners earlier did not make payment of rent for the crop period Kharif 1988 to Rabi 1991. The petitioners filed an application for purchase of land which was dismissed and the order was endorsed upto the High Court. Learned counsel further states that for the said crop period of Kharif 1988 to Rabi 1991 also, the authorities had found that the rent had not been paid by the petitioners, as required. Learned counsel further has pointed out that for crop period Kharif 1991 to Rabi 1994 also, the rent was not paid and, therefore, the landlord was constrained to approach the authorities under the Tenancy Act. The suit was decreed and the matter went upto the Honble Supreme Court of India and decided in favour of the landlord i.e. Respondent No. 5. The present proceedings were initiated by respondent No. 5-landlord for reason of non- payment of rent by the petitioners for the crop period Kharif 1997 to Rabi 2000. 17. Learned counsel for respondent No. 4 further states that there is manipulation in the record to show that the notice had been sent to the wrong address/village. The petitioners belong to village Kharal. In the vernacular of the notice by manipulation, it has been shown as Gural. 18. I have considered the rival contentions. 19. The issue raised in the petition and in the impugned orders originates from order Annexure R-5/1 i.e. the order under which it was held that the petitioners are defaulters in payment of rent and, therefore, the suit of the landlord was decreed against the petitioners. 18. I have considered the rival contentions. 19. The issue raised in the petition and in the impugned orders originates from order Annexure R-5/1 i.e. the order under which it was held that the petitioners are defaulters in payment of rent and, therefore, the suit of the landlord was decreed against the petitioners. The petitioners have not placed the order on record. For complete adjudication of the issue, it was required to be placed on record because order Annexure R-5/1 clearly shows that the petitioners were duly represented by their counsel. It further indicates the conduct of the petitioners in so much as despite opportunity, the petitioners did not file any reply to the suit filed by the respondent landlord. 20. I am further,of the opinion that the petitioners were required to place on record the order passed by Collector passed on 07.08.2003, vide which the case was remanded to Assistant Collector 1st Grade. Perusal of order Annexure R-5/2 clearly shows that the petitioners were duly represented as it has been recorded "respondents are in person". The parties were directed to appear before Assistant Collector 1st Grade on 04.09.2003, as is clear from extracted portion above. 21. The contention of learned counsel for the petitioners to the effect that the litigation was being pursued by Chaman Lal, who was taken in custody on 06.08.2003, cannot be accepted as a good justification for non-appearance before the Assistant Collector 1st Grade. The order has to be accepted as depicting the correct factual position. The petitioners have been shown to be present in person and, therefore, it has to be accepted that it was in their presence that it was directed that they were required to put in appearance before Assistant Collector 1st Grade on 01.09.2003. 22. The conduct of the petitioners is found to be mala fide on a perusal of orders Annexure R-5/1 and R-5/2. Perusal of order Annexure R-5/1, under which it was found that the petitioners had not paid the rent shows that despite opportunity the petitioners did not file any reply to the suit filed by the landlord-respondent No. 5 with a prayer for ejectment of the petitioners, also. The conduct indicates that the petitioners throughout have been wanting to take undue advantage of the protracted proceedings as they continue to be in possession of the land by way of filing one application after the other. 23. The conduct indicates that the petitioners throughout have been wanting to take undue advantage of the protracted proceedings as they continue to be in possession of the land by way of filing one application after the other. 23. I have also taken note of the fact that the application under order 9 Rule 13 CPC has been filed after nearly 2 years of the event as the application has been filed, which was decided on 19.10.2005. 24. The sending of notice by Assistant Collector 1st Grade to summon the petitioners was not a mandatory requirement in view of the fact that vide order Annexure R-5/2 dated 07.08.2003 itself, the parties who were present before the Collector were directed to appear before the Assistant Collector 1st Grade, Gurdaspur on 04.09.2003. In such circumstances, the petitioners were required to be vigilant to put in appearance before the authority. The petitioners, however, remained dormant. In this regard, reference may be made to 2008(2) Supreme Court Cases 326, Sunil Poddar and others v. Union Bank of India, para Nos. 22 and 23, which read as under : "22. Accepting the recommendations of the Law Commission, the Rule was amended by the Code of Civil Procedure (Amendment) Act, 1976. Rule 13 of Order 9 with effect from 1-2-1977 now reads thus : "13. Setting aside decree ex parte against defendant. 22 and 23, which read as under : "22. Accepting the recommendations of the Law Commission, the Rule was amended by the Code of Civil Procedure (Amendment) Act, 1976. Rule 13 of Order 9 with effect from 1-2-1977 now reads thus : "13. Setting aside decree ex parte against defendant. - In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also : 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. Explanation. - Where there has been an appeal against a decree passed ex parte under this Rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this Rule for setting aside that ex parte decree." 23. It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order 5 of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service, of summons. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service, of summons. If the court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiffs claim, he cannot put forward a ground of non-service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order 9 of the Code. Since the said provision applies to the Debts Recovery Tribunals and the Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before DRT, they had no sufficient time to appear and answer the claim of the plaintiff Bank and on that ground, ex parte order deserves to be set aside." 25. The above extracted portion from the judgment would clearly apply to the facts of the present case in so much as in para No. 23 reproduced above, it has been said that what is relevant is that a party had a notice of a date of hearing. If the party had notice of date of hearing, it is irrelevant whether service of summons was effected or not. In such circumstances, ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. 26. In the case in hand also, as noticed above, the petitioners had prior notice on 07.08.2003 itself that they were required to appear before Assistant Collector 1st Grade on 04.09.2003. In such circumstances, it cannot be pleaded on behalf of the petitioners that the summons were sent to the wrong address. Vide order Annexure P-1, the petitioners were proceeded ex parte and ejectment order was passed on 17.11.2003. Even thereafter, the petitioners remained dormant for nearly two years before filing an application under Order 9 Rule 13 of the Code of Civil Procedure. 27. In view of the above, the writ petitions call for no interference and are hereby dismissed with costs amounting to Rs. 10,000/- in each of the cases. Execution proceedings are pending for execution of the orders of ejectment and recovery of rent. 27. In view of the above, the writ petitions call for no interference and are hereby dismissed with costs amounting to Rs. 10,000/- in each of the cases. Execution proceedings are pending for execution of the orders of ejectment and recovery of rent. The authorities shall also ensure recovery of costs imposed in these petitions for payment to the landlord. Petition dismissed.