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2012 DIGILAW 464 (PNJ)

Satish Kumar v. Dev Raj

2012-03-19

G.S.SANDHAWALIA

body2012
JUDGMENT Mr. G.S. Sandhawalia J, (Oral). - Civil Misc. No.2614-C-II of 2012 Prayer made in the application is for grant of exemption from filing the certified copies of Annexures P-2 to P-4 and for placing the Annexures P-1 to P-4 on record. In view of the averments made in the application, which are supported by affidavit, the Civil Misc. Application is allowed. CR No.653 of 2012 1. The present petition has been filed by the landlord who is aggrieved against the order dated 28.11.2011 passed by the Rent Controller, Bathinda wherein the application filed by the tenant for setting aside the exparte order dated 28.9.2006 and the exparte judgment dated 26.7.2007 passed in Rent Petition No.50 dated 19.4.2006 was allowed subject to payment of Rs.3000/- as costs. 2. The petitioner-landlord filed an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 on the ground that the tenant was in arrears of rent with effect from 1.10.2005 of the premises in question and he had ceased to occupy the same for a continuous period of four months without any reasonable cause. In the said eviction petition, summons were sent on 19.4.2006 and it was ordered that publication be made on 2.6.2006. Accordingly, publication was made on 25.7.2006 and the Rent Controller, Bathinda proceeded to pass an exparte order dated 28.9.2006 against the tenant. Subsequently, the Rent Controller, Bathinda allowed the eviction petition vide order dated 26.7.2007. 3. The tenant filed an application for setting aside exparte order on 6.12.2007 wherein he averred that he had never received the summons of the Court nor he had received the registered cover. The Process Server had never approached the tenant and he never refused to accept summons and the landlord in connivance with the Process Server had succeeded in getting the false report prepared that the shop of the tenant was closed. It was pleaded that registered cover was never delivered to the tenant and the landlord in connivance with the postal authorities got false report. Accordingly, it was pleaded that publication was done in a paper which had no circulation in Bathinda. Therefore, he was wrongly proceeded against exparte on 28.9.2006 on the basis of publication dated 25.7.2006. It was pleaded that registered cover was never delivered to the tenant and the landlord in connivance with the postal authorities got false report. Accordingly, it was pleaded that publication was done in a paper which had no circulation in Bathinda. Therefore, he was wrongly proceeded against exparte on 28.9.2006 on the basis of publication dated 25.7.2006. Subsequently, order of ejectment was passed and the tenant was unaware regarding the pendency of the eviction petition and only when Bailiff came to take possession on 4.12.2007, the tenant came to know and had filed an application on 5.12.2007 for inspection of the execution petition and came to know about the exparte order. 4. The application was contested by the landlord and he pleaded that since the tenant had not appeared intentionally and willfully, therefore, there was no option but to proceed against him exparte, and thus, the application deserved to be dismissed. It was pleaded that the application was filed after a period of more than 15 months from passing of the exparte order and five months from the ejectment order. It was also admitted that respondent was not running his business in the shop in dispute and kept the same locked with malafide intention to unnecessarily harass the landlord with a hope to get some hush money for vacating the premises in question. Regarding publication it was pleaded that Dainik Pilot was a newspaper which was published daily from Bathinda itself and the same had got wide circulation, therefore, exparte order was liable to the upheld. 5. The rent Controller, Bathinda after taking into consideration the pleadings of the parties framed the following issues:- “1. Whether there are sufficient cause to set aside exparte judgment dated 26.7.2007?OPA 2. Whether the application is within time?OPA 3. Whether the application is not maintainable? OPR 4. Relief.” 6. After taking into consideration the evidence of the landlord and tenant brought on record, the Rent Controller, Bathinda allowed the application vide order dated 28.11.2011 which is the subject matter of the present revision petition. 7. Counsel for the petitioner-landlord has contended that in the affidavit filed before the Rent Controller, Bathinda, the tenant had himself given his address as House No.406G, Shiv Mandir Street, Power House Road, Bathinda, therefore, he could not contend that he was not a resident of Bathinda and was not aware of the affixation. 7. Counsel for the petitioner-landlord has contended that in the affidavit filed before the Rent Controller, Bathinda, the tenant had himself given his address as House No.406G, Shiv Mandir Street, Power House Road, Bathinda, therefore, he could not contend that he was not a resident of Bathinda and was not aware of the affixation. Accordingly, it is contended that the tenant was in arrears of rent and allowing the application and setting aside the exparte order and judgment ordering eviction of the tenant is not sustainable in the eyes of law. 8. The submission made by the counsel is not acceptable. Admittedly, the petition was filed on the ground that tenant has ceased to occupy the premises in question. In the reply filed to the application also, the landlord has himself averred that the respondent is not running his business in the shop in question and kept the same locked. In such circumstances, the Rent Controller has noticed that the tenant was not served and service of summons was not effected on him. The Process Server’s statement has been taken into account and even the address given by the landlord himself shows that apart from the shop number, the tenant has been shown as resident of Nathana. It was noticed that no witness from the locality, who was associated with the process of service has been examined once the tenant was avoiding service or refusing to accept summons and served through publication which was a weak type of service. It has also been taken into account that the tenant came to know about the eviction order on 4.12.2007 and the application was filed on 6.12.2007 and, therefore, limitation would start from the date of knowledge and the application was within limitation. The reasoning given by the Rent Controller, Bathinda is justified. The landlord himself has averred that the rent of the premises had been sent from Manimajra vide demand draft but he did not accept the same as it did not pertain to the arrears of rent. Keeping in view the conduct of the tenant that he was willing to pay the rent, the matter is liable to be decided on merits and the reasoning given by the Rent Controller is justified and there is no illegality in the findings recorded by the Rent Controller, which may warrant interference in exercise of revisional jurisdiction of this Court. Keeping in view the conduct of the tenant that he was willing to pay the rent, the matter is liable to be decided on merits and the reasoning given by the Rent Controller is justified and there is no illegality in the findings recorded by the Rent Controller, which may warrant interference in exercise of revisional jurisdiction of this Court. It is settled law that a tenant should be given a proper hearing before passing of order of ejectment which jeopardises his right. However, since the petition is of the year, 2006, it would be reasonable to accept the request of the counsel that the Rent Controller, Bathinda may be directed to decide the eviction petition by 31.12.2012. 9. Accordingly, the revision petition is dismissed. However, the Rent Controller, Bathinda is directed to decide the eviction petition titled as Satish Kumar Vs. Dev Raj on merits by the end of this year. ---------0.B.S.0------------