Civil Revision No. 5016 of 2005 1
In the High Court of Punjab and Haryana, at Chandigarh.
Civil Revision No. 5016 of 2005
Date of Decision: 19.11.2008
Major S.S.Rana
...Petitioner
Versus
Ajit Singh
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Sumeet Mahajan, Senior Advocate
with Mr. Sham Lal Bhalla, Advocate
for the petitioner.
Mr. Kanwaljit Singh, Senior Advocate
with Mr. G.S.Ghuman, Advocate
for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral)
The present revision petition has been filed against the
impugned order dated 6.7.1995 whereby the order of ex parte dated
2.5.1994 was set aside. The revision petition was filed in this Court in
the year 2005.
Mr. Kanwaljit Singh, Senior Advocate, appearing along with
Mr. V. Taneja, Advocate, on behalf of the respondent, has stated that
during the pendency of present revision petition, entire evidence of
landlord and the tenant was recorded. Thereafter, learned Rent
Controller had pronounced the judgment on merits of the case. An
Civil Revision No. 5016 of 2005 2
appeal was filed against the same by the landlord. The appeal has been
decided and the matter was again remitted back to learned Rent
Controller. In this context, Mr. Kanwaljit Singh submitted that before
learned Rent Controller, entire evidence has been led by the parties.
The present revision petition has virtually lost its stings.
Mr. Mahajan insists, this Court must go into the root of the
matter and return the findings. He states, even in the changed
circumstances, this Court must adjudicate. He states setting aside of
the ex-parte order, later recording of evidence, pronouncement of
judgment, filing of appeal, Appellate Authority remanding the matter to
the Rent Controller may have changed the circumstances but could not
decide the legal issue. Therefore, in this context, I proceed to decide
the present revision petition.
Landlord had filed eviction petition against the tenant on
3.9.1993. Notice was issued. Process Server was handed over the
summons (Annexure P5). On the summons it was noticed that the case
is fixed for 19.11.1993. Karamjit Singh, Process Server, submitted a
report Ex.PW2/A on 14.10.1993 that he went to deliver the summons
and the landlord was found present there. The Process Server asked
the landlord to accept the summons. On refusal, tenant was told that the
case was fixed for 10.11.1993. On 24.12.1994, tenant filed an
application Ex.P2 in the Court of learned Rent Controller praying that ex-
parte order be set aside.
Mr. Mahajan has brought to my notice para 2(a) of the
application, which reads as under:-
“2(a) That no process server ever visited the
Civil Revision No. 5016 of 2005 3applicant/J.D. to effect his service of the summons
at any stage”.
A reply was filed by the landlord to the application for setting
aside the ex parte order and in the reply para 2(a) reads as under:-
“2(a) This is incorrect that no process server ever visited
the applicant/JD to effect service in this case. The
reports made by the process serving officials are on
the judicial file. These reports speak for themselves.
These reports are correct. The plea raised is
baseless”.
After the pleadings to the application for setting aside ex parte
order is concluded, issues were drawn by learned Rent Controller:-
1. Whether the ex parte decree dated 2.5.1994 is liable
to be set aside? OPA
2. Relief.
Ajit Singh, tenant, appeared as PW.1. He stated in his
evidence that no summons were received by him. No registered letter
came to him. No munadi or publication was done. He never refused any
letter. Therefore, the order dated 2.5.1994 be set aside. He also
examined Karamjit Singh as PW.2. His testimony is attached with the
revision petition as Annexure P4 and the same reads as under:-
“RW-2 Shri Karamjit Singh, Process Server, Office
of Civil Judge (Senior Division), Ludhiana, on S.A.
I had taken the summons in the case titled
Major S.S. Rana Versus Ajit Singh. The summons
were in the name of Ajit Singh. This summons were
Civil Revision No. 5016 of 2005 4taken to the spot of demised premises. The
aforesaid premises is situated at Industrial Area-B.
My report on the aforesaid summons is Ex.PW-2/A.
The aforesaid report is in my hand. I had told the
name of the Court, data, month and year. This case
was pending in the Court of Shri Dharam Singh,
Rent Controller which was fixed for 10.11.1993. I
had told Sardar Ajit Singh the date of 10.11.1993. I
did not tell any other date except 10.11.1993 and
had told him to appear in the Court on the said date.
Ajit Singh refused to accept the summons.
XXX XXXX by respondent.
I made correct report by visiting the spot at
the spot as per the existing circumstances”.
Mr. Mahajan has stated that there has been misreading of the
evidence by learned Rent Controller. In the application is has been
stated by landlord that no summons were received by him whereas
Process Server has stated that he went there and served the summons
in which it was stated that the date fixed is 10.11.1993 and Process
Server has categorically stated that the tenant has refused the service.
This argument is liable to be rejected.
Perusal of the order shows that due credence ought to have
been given to the testimony of Ajit Singh, PW.1, which aspire
confidence. It was a compulsion for the Process Server to state in
terms of the report. Therefore, he could not wriggle out of the same. A
valuable property in the industrial town of Ludhiana is on the rent at the
Civil Revision No. 5016 of 2005 5
rate of Rs.700/- per month. The tenant, in these situations, will be
vigilant to safeguard his interest. Therefore, no reliance can be placed
upon the testimony of Process Server and admittedly he has submitted
Annexure P5, a manipulated report. Learned Rent Controller has rightly
taken a view that since the date was 19.11.1993, therefore, the Process
Server stating that date fixed is 10.11.1993 revealed to the tenant
cannot be relied upon. The conduct of the Process Server is unnatural,
improbable and unconvincing. Therefore, order setting aside the ex
parte order dated 2.5.1994 is upheld.
It has been stated by Mr. Mahajan that in the present case, ex
parte order was passed on 2.5.1994. He has further stated that in
pursuance of the ex parte order, execution proceedings were initiated
and munadi was conducted on 15.11.1994 and the application was filed
on 24.12.1994. Therefore, it is after about 38 days application was filed
and there is a delay of eight days, as strictly, application should have
been filed within 30 days from the date of knowledge.
Mr. Mahajan has canvassed that if the knowledge is to be
construed, it should be from the date of decree, once it was found that
there is service effected upon tenant, necessarily it should not be
construed from the date of munadi. This argument cannot be accepted
in view of the fact that no reliance can be placed on the report of
Process Server, same being manipulated by the landlord. Even
otherwise, this Court in Darshan Lal v. Jaswant Singh (Civil Revision
No. 3531 (O&M) decided on 17.10.2008) relying upon various
judgments of this Court held that the Code of Civil Procedure in entirety
with all vigour and strength do not apply to the Court of learned Rent
Civil Revision No. 5016 of 2005 6
Controller. Therefore, ex parte order is not barred by limitation. It has
been held therein that though inordinate delay and laches can be taken
into consideration but not a ground of limitation. The view taken is
reproduced hereunder:-
“The view taken in Inderjit Pal’s case
(supra) has also been reiterated in ‘Brij Mohan
Aggarwal v. Laxmi Narayan @ Lachhu’, 2001 (1)
RCR (Rent) 128 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 1977 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. 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
Civil Revision No. 5016 of 2005 7properties. 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.”
As stated that learned Rent Controller had concluded the
matter and the appeal was filed, therefore, learned counsel for
respondent has placed on record the photocopy of the order passed by
learned Appellate Authority. During the pendency, much water has
flown. The parties have led their evidence. The concluding portion of the
order passed by learned Appellant Authority on 22.2.2008, reads as
under:
“10. In the light of my above discussion, the
appeal is accepted and the case is remanded back
to the Ld. Rent Controller for freshly assessing the
due rent after taking into account the house tax as
per the rent deed Ex.AW1.4. In view of the peculiar
circumstances of the case, the parties are left to
bear their own costs. Counsel fee is assessed at
Rs.1000/-. Memo of costs be prepared. The parties
Civil Revision No. 5016 of 2005 8through their counsel are directed to appear before
the Ld. Lower Court on 28.3.08. Lower Court file be
returned immediately while the appeal file be
consigned to the records”.
Even otherwise, I am of the view that balance of equity and fair
play demand that proceedings between the parties should be decided
on merits.
I find no merit in the present revision petition and the same is
dismissed.
(Kanwaljit Singh Ahluwalia)
Judge
November 19, 2008
“DK”