IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.1831 of 1992
Date of decision:18.05.2009
Sewa Ram ...Petitioner
versus
Rajinder Singh and others ...Respondents
CORAM: HON'BLE MR. JUSTICE K.KANNAN
Present: Mr. H.N.Mehtani, Advocate for the petitioner.
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1. Whether reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the reporters or not ?
3. Whether the judgment should be reported in the digest ?
K.Kannan, J.(Oral)
1. The revision is against the order dismissing a petition
for setting aside an ex parte order of eviction passed against a tenant on
03.08.1988. The tenant claimed that he had knowledge of the ex parte
order on 02.11.1988 and filed a petition on 04.11.1988.
2. The objections in the petition were two-fold, that
contention that the tenant did not know about the date of hearing was
false and that the petition itself was not filed within the time permissible
by law. Admittedly the ex parte eviction order was passed on 03.08.1988
and the petition filed on 04.11.1988 was seemingly beyond time.
3. Before the Rent Controller the tenant examined
himself and also brought the evidence of the bailiff who stated that
he had served the summons on a person called Sewa Ram and he had not
Civil Revision No.1831 of 1992 -2-
known him earlier. A particular person who signed as a witness in the
summons was also not known to him. He conceded that the father’s
name of Sewa Ram had also not been referred to and the copy of the
petition had not been served on him.
4. The Rent Controller dismissed the petition finding
that the tenant did not take the courage to say that the signature found in
the summons was not his and that further by a comparison of the
signatures found in the summons with the signatures found in the
petition, it was clear that it was signed only by Sewa Ram. If the copy of
the petition could not be served, it was on account of the tenant’s refusal
and his hurry to go away to Vaishno Devi without receiving even the
copy of the petition. After coming to the conclusion that the summons
had been duly served, the Rent Controller found that the petition filed
more than 30 days from the date when the ex parte order of eviction was
made, was beyond time.
5. The Rent Controller, while dismissing the petition
also had made observations against the tenant on the ground that the
tenant was bound to prove the averments in the petition and
consequently he should have proved that the signature found in the
summons was not his by examination of an expert witness.
6. The matter is of the year 1992 and the case has stood
this length of time for disposal of a mere application under Order 9 Rule
13. Even the respondent who has obtained the ex parte order of eviction
is not before the Court to assist and the case is being heard and dispose
of only in the presence of the learned counsel for the petitioner.
Civil Revision No.1831 of 1992 -3-
7. The reasons for dismissing the petition that the
signature found in the summons seemed to the same as the signatures in
the petition was not justified. If the service of summons was denied, it
was for the decree holder to establish the service and the burden is never
on the person who denies the actual service. Even the bailiff was not
examined on the side of the decree holder but the evidence was brought
at the instance of the judgment debtor himself. The bailiff had obviously
no reason to be acquainted with the judgment debtor and he had also
conceded that he had not ascertained the father’s name at the time of the
service of summons. The witness to the summons was also not
previously known to the bailiff and therefore the identity of the person
who was alleged to have been served as that of the judgment debtor
could not also be said to have been established. The order suffers also
from another fundamental error that the tenant should have proved his
signatures if the signatures had been denied. The same must have been
proved only by the decree holder and the inference made by the Court
below that since he had not examined the hand writing expert, it should
be assumed that it contained the signatures of the tenant was clearly
wrong.
8. The case could not be dealt with on mere conjecture
and in the absence of definite proof of service of summons on the
petitioner, opportunity ought to have been granted to the tenant to take
up his plea in defence and go through the adjudication after full-fledged
trial. The issue on limitation has an immediate bearing to whether
the party contended that the summons was served or not. If the summons
Civil Revision No.1831 of 1992 -4-
was not shown to have been served personally, the starting point of the
limitation was only the knowledge and not the date of order itself. The
averment in the affidavit was that he had knowledge about the decree
only on 02.11.1988 and having regard to my finding that the service of
summons had not been proved, the period of limitation would have
started only from the date when the judgment debtor stated that he had
knowledge about the decree. The petition filed on 04.11.1988 was
therefore within time.
9. The order dismissing the application is therefore
erroneous and liable to be set aside and accordingly set aside. The Civil
Revision is allowed.
(K.KANNAN)
JUDGE
18.05.2009
sanjeev