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Himachal Pradesh High Court · body

2017 DIGILAW 855 (HP)

Sunanda Sharma v. D. P. Sood

2017-07-26

DHARAM CHAND CHAUDHARY

body2017
Dharam Chand Chaudhary, J.: This petition is directed against the order dated 28.9.2016 passed by learned Appellate Authority in Rent Appeal No. 26-S/14 of 2016, whereby the order dated 13.6.2016 passed by learned Rent Controller, Shimla in an application under Order 9 Rule 7 read with Section 151 CPC filed by the petitioner herein (respondent No. 4 before learned Rent Controller) registered as CMA No. 125/6 of 2015 has been dismissed along with another application filed under Section 5 of the Limitation Act. The petitioner-respondent claims that she was never served with the notice issued for her service by way of publication for 3.8.2007. She was proceeded against exparte on 3.8.2007 in the rent petition. This order reads as follows: “Case called twice but none appeared. None appeared in the morning also for respondent No. 4. She is duly served by way of publication in daily News paper ‘Himachal Time, but not present. It appears that she is no interested in contesting the petition. Hence, she is proceeded against exparte. Put up for rejoinder if any, and issues on 29.8.2007.” 2. She filed the application registered as CMA No. 125/6 of 2015 as aforesaid on 4.12.2015 with a prayer to set aside the exparte order on the grounds, inter alia, that she was never served by way of publication of notice in the News paper “Himachal Times” which according to her has no circulation in the area to which she belongs. Also that, the notice was not published for her service properly. The Process Server of Process Serving Agency, Dehra at Kangra had never visited her matrimonial house to serve her with the notice issued by ordinary mode. 3. The application filed by her was resisted and contested on behalf of the respondent, hereinafter referred to as the ‘petitioner-landlord’. Her mother respondent No. 1 Kamlesh Lakhanpal (since dead) and brother respondent No. 2 Arvind Lakhanpal were duly served with notice issued in the rent petition, hence respondent No. 4 being their daughter/brother respectively can be reasonably believed to have the knowledge of the institution of the rent petition and also that she was duly served by way of publication. Since she failed to put in appearance, therefore, the application was sought to be dismissed by the petitioner-landlord. 4. Learned Rent Controller on completion of the pleadings in the application has disposed of the same vide order dated 13.6.2016. Since she failed to put in appearance, therefore, the application was sought to be dismissed by the petitioner-landlord. 4. Learned Rent Controller on completion of the pleadings in the application has disposed of the same vide order dated 13.6.2016. As noticed at the outset, that learned Appellate Authority has affirmed the order passed by learned Rent Controller vide judgment under challenge before this Court in this petition. 5. The perusal of the orders under challenge make it crystal clear that factum of filing of the reply to the rent petition by Shri Neeraj Gupta, Advocate, on behalf of respondents No. 1, 2 and 4 in the year 2008 is heavily weighed with learned Rent Controller and also the Appellate Authority. True it is, that Shri Neeraj Gupta, Advocate has filed reply on behalf of respondents No. 1, 2 and 4 on 7.9.2007. However, he has filed power of attorney on 9.5.2007 only on behalf of respondents No. 1 and 2. How the reply could have been filed on behalf of respondent No. 4 without she having authorized Shri Neeraj Gupta, Advocate remained unexplained. Above all, the reply has only been signed by Shri Arvind Lakhanpal. Similarly, it is he who alone has signed the power of attorney. True it is, that the reply/written statement is filed jointly on behalf of more than one respondent/defendant is not required to be signed and verified by all of them and signature/verification by one of them is sufficient. However, the authorization to file reply by way of signing power of attorney in favour of the Counsel should be there. 6. This Court has checked the entire record and is unable to lay its hand on the power of attorney signed by respondent No. 4 in favour of Shri Neeraj Gupta, Advocate and thereby authorising him to file reply to the rent petition. Merely mention in the head note that the reply has been filed on behalf of respondent No. 4 also without authorizing learned Counsel by her to do so should not be taken to form an information that the reply was filed on behalf of respondent No. 4 also. I am, therefore, not in agreement with the findings to the contrary recorded by learned Rent Controller and learned Appellate Authority below. 7. Interestingly enough the reply was filed on 7.9.2007 i.e. after the respondent No. 4 was proceeded against exparte on 3.8.2007. I am, therefore, not in agreement with the findings to the contrary recorded by learned Rent Controller and learned Appellate Authority below. 7. Interestingly enough the reply was filed on 7.9.2007 i.e. after the respondent No. 4 was proceeded against exparte on 3.8.2007. In the subsequent order i.e. dated 29.8.2007 she was shown exparte. Even in the order dated 7.9.2007 the day when the reply was filed, on one hand she was shown to be represented by Shri Neeraj Gupta, Advocate, however, in the next line exparte. In the subsequent orders also, either she has been shown to be exparte or represented by Counsel. True it is, that she was served by way of publication for 3.8.2007 and failed to put in appearance on that day, hence was proceeded against exparte. The fact, however, remains that she never engaged Shri Neeraj Gupta, Advocate to defend herself in the rent petition nor he could have file reply on her behalf. Whether she is a necessary party in the rent petition or not is a question which has to be decided in the main petition after affording her an opportunity of being heard. However, in the opinion of this Court, she has satisfactorily pleaded and proved that publication of notice in ‘Himachal Times’ an English daily for her service was not in her knowledge because the possibility of the circulation of the said News Paper in the area where she resides cannot be ruled out. The service of her mother (since dead) respondent No. 1 and brother respondent No. 2 in the rent petition should have also not been construed as her valid service because it is not always necessary that the co-respondent or any other relation may inform the unserved respondents about the pending litigation. 8. This Court, as such is also not in agreement with the observations made by both Courts below that since respondents No. 1 and 2 were duly served with the notice issued to them in the Rent petition, respondent No. 4 may have also come to know about the institution of the rent petition and the dates on which the same remained listed before learned Rent Controller. In the totality of the circumstances and the explanation offered by respondent No. 4 qua her absence on 3.8.2007 learned Rent Controller and for that matter learned Appellate Authority below should have quashed the exparte order passed against her on that day and allowed her to contest the petition. Failure to do so, on the part of learned Rent Controller and the Appellate Authority has definitely resulted in miscarriage of justice to respondent No. 4 who in the considered opinion of this Court is condemn unheard. The judgment under challenge, as such, cannot be said to be legally and factually sustainable. 9. For all the reasons hereinabove, this petition succeeds and the same is accordingly allowed. Consequently, the impugned judgment is quashed and set aside. As a result thereof the exparte order dated 3.8.2007 passed by learned Rent Controller, Shimla is also quashed and set aside and the petitioner-respondent No. 4 is permitted to contest the petition by filing reply etc. thereto. 10. However, keeping in view the petition is old one, she is granted one month’s time and that too by way of last opportunity for the purpose. She, therefore, is directed to file reply on the next date to be fixed for the presence of the parties before learned Rent Controller below. On her failure to file the reply on the date to be so fixed, her defence shall stand automatically struck off. In the event of the reply is filed by her, the petitioner-landlord, if so, advised may file rejoinder within two weeks thereafter. Learned Rent Controller shall thereafter consider the matter for settlement of additional issues, if any, and record the evidence, if any, is produced by her on her own responsibility and in the event of the assistance of learned Rent Controller required by taking steps and ensuring the service of the witnesses for the date fixed. Any other and further opportunity shall not be granted to her in this regard. The rebuttal evidence, if any, required to be produced by the petitioner-landlord will also be produced thereafter within one month on his own responsibility and in case the assistance of learned Rent Controller required for the purpose by taking requisite steps and ensuring the service of the witness(s). On completion of the record, learned Rent Controller shall dispose of the rent petition at the earliest. 11. On completion of the record, learned Rent Controller shall dispose of the rent petition at the earliest. 11. The parties through learned counsel representing them are directed to appear before learned Rent Controller on 11.8.2017. 12. The petition is accordingly disposed of. Pending application(s), if any shall also sand disposed of.