High Court dismissed tenant\'s revision petition challenging dismissal of applications setting aside ex parte eviction order. Court held petitioner was duly served and failed to show reasonable cause; non-compliance with service rules was irregularity, not illegality, barring setting aside decree.
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.2830 of 2011 (O&M) Date of decision: 4.11.2011
Manjit Singh
......Petitioner(s)
Versus
Yashwant Rai
......Respondent(s)
CORAM:HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr. Brijeshwar Singh Bhalla, Advocate for the petitioner.
Rakesh Kumar Garg, J.
This is tenant's revision petition challenging the order dated 6.9.2008 of the Rent Controller, whereby his application filed under Order 9 Rule 13 CPC for setting aside ex parte eviction order dated 10.5.2003 was dismissed and further the order dated 9.2.2011 of the Appellate Authority dismissing his appeal against the aforesaid order.
Briefly stated that respondent filed an ejectment petition against the petitioner which was allowed ex parte vide order dated 10.5.2003 of the Rent Controller, Moga. The petitioner filed an application on 2.9.2003 for setting aside the aforesaid ex parte eviction order dated 10.5.2003 stating that he had no knowledge regarding the aforesaid ejectment petition as the respondent in collusion with Process Server had obtained the false report and had managed to get ex parte eviction order against him. It was specifically stated that no service was effected upon him in the said ejectment petition as he was already contesting another ejectment petition filed against him by the respondent earlier to the said petition and there was no reason that petitioner will not appear in the instant ejectment petition after notice. Thus, it was necessary to set aside
the aforesaid ex parte order of eviction dated 10.5.2003 passed against him.
The said application was contested by the respondent on the ground of limitation and also on merits. It was stated by the respondentlandlord that petitioner was served in the eviction petition for 27.8.2001 but despite his personal service he deliberately absented himself and was thus, proceeded against ex parte. The allegations of collusion with the Process Server were denied and it was further stated that the application has been filed only to obstruct the execution proceedings resulting from the aforesaid eviction order dated 10.5.2003 and therefore, the application was liable to be dismissed.
On the basis of the aforesaid pleadings of the parties,the following issues were framed:
“1. Whether there is a reasonable cause for setting aside the ex parte proceedings initiated against applicant Manjeet Singh? OPA
2. Whether the application is tune barred? OPR
3. Relief .”
While dismissing the application filed by the petitioner, the
Rent Controller found as under:
“Although, learned counsel for applicant Manjit Singh has argued that the service effected upon applicant Manjit Singh is not a valid service in the eyes of law as per provision of Order 5, Rule 2 of the CPC as copy of the eviction petition was not delivered to applicant Manjit Singh, but applicant Manjit Singh can only plead his case as per his application. It is not the plea of the applicant Manjit Singh that summons served upon applicant Manjit Singh were without copy of the eviction petition. It is pleaded by applicant Manjit Singh that false report was procured by respondent Yashwant Rai and managed to get ex parte eviction order against him.
Therefore, this argument of learned counsel for applicant Manjit Singh that no service under Order 5, Rule 2 of the CPC was effected upon applicant Manjit Singh is not helpful to the applicant. Even during the cross-examination of RW.2 Gurcharan Singh, Process Server, no question or suggestion was put to him by learned counsel for applicant Manjit Singh that he served the summons to Manjit Singh without copy of the eviction petition. It further goes against applicant Manjit Singh. The authorities relied upon by learned counsel for applicant Manjit Singh, supra, are not applicable in this case. Moreover, authority relied upon by learned counsel for respondent, Yashwant Rai, supra, that noncompliance of Order 5, Rule 2 of the Code is an irregularity and not an illegality and ex parte decree is not liable to be set aside on this ground, is fully applicable in this case. Therefore, applicant Manjit Singh was duly served in the eviction petition for 27.8.2001, but despite service he did not appear in the court and was proceeded against ex parte. As such, there is no reasonable cause to set aside the ex parte decree passed against applicant Manjit Singh. Hence, this issue is decided against applicant Manjit Singh and in favour of respondent Yashwant Rai. Issue No.2.
12. Onus to prove this issue is on respondent Yashwant Rai. Applicant Manjit Singh has challenged the ex parte decree dated 10.5.2003 on 2.9.2003, after lapse of four months. Only vague plea has been taken by the applicant that he come to know about the ex parte ejectment order only yesterday when landlord came at the shop in dispute along with ex parte ejectment order and tried to get forcible possession of the shop from the applicant on the basis of ex parte ejectment order. Respondent Yashwant Rai has already filed execution application to get possession of the shop in dispute from applicant Manjit Singh. Therefore, this plea of applicant
Manjit Singh is not tenable that respondent Yashwant Rai tried to get forcible possession of the shop in dispute from the applicant. As such, this application is time barred. Hence, this issue is decided in favour of respondent Yashwant Rai and against applicant Manjit Singh.”
Aggrieved from the aforesaid order of dismissal of his application, the petitioner filed an appeal before the Additional District Judge, Moga, which was also dismissed vide impugned order dated 9.2.2011. The relevant part of the said order reads thus:
“Learned counsel for the applicant-appellant has contended that learned lower Court has erred in passing the impugned order. He has stated that learned lower Court has committed a mistake to take notice of the fact that the appellant was not served as per Order 5 Rule 2 CPC. He has further stated that as per law the service of the defendant/respondent without supply of copy of the plaint is no service in the eyes of law. He has stated that it is admitted fact that regarding the same property another petition between the parties was pending before the Rent Controller, Moga in which applicant/appellant has tendered the rent, so there was no reason the appellant will not appear in the second petition when he has hotly contested the earlier petition. He has contended that the learned lower Court has wrongly relied upon the statement of Process Server when it is clearly proved on record that service upon the appellant was not effected in accordance with law. He has prayed that the appeal may kindly be accepted and impugned order passed by the learned lower Court be set aside.
On the other hand, learned counsel for respondent has argued that eviction order dated 10.5.2003 was passed against the applicant/appellant and application under Order 9 Rule 13 CPC was filed on 2.9.2003, which is clearly beyond limitation. He has stated that in para No.3 of application under Order 9
Rule 13 CPC applicant/appellant has taken the plea that respondent in collusion with Process Server had obtained false report and, thus, managed ex parte eviction order against the applicant. He has stated that no service of any kind was effected upon the applicant regarding the petition. He has stated that had there been any service upon the applicant he would have definitely contested the second petition as he was contesting the first petition. From the perusal of application under Order 9 Rule 13 CPC it is clear that it has been filed on the ground that respondent had colluded with Process Server and had got the false report on summons regarding service of applicant/appellant.
Learned counsel for respondent has argued that now in this appeal, applicant/appellant has taken the plea of his service having not been effected as per Order 5 Rule 2 CPC. He has stated that now in this appeal applicant/appellant cannot take any ground/plea, which was not taken by him in his application under Order 9 Rule 13 CPC. He has argued that non supply of copy of petition along with summons is only an irregularity and on this ground ex parte decree cannot be set aside. In this regard, he has relied upon Ruahar Pakhar Singh (deceased by L.Rs) and others Vs. Bhajan Singh (deceased by L.Rs) and others , AIR 1987 Punjab and Haryana 170, in which it has been held by the Hon'ble Punjab & Haryana High Court that setting aside of ex parte decree on the ground that summons served but copy of plaint invoking Order 5 Rule 2 CPC. It was held that on this ground ex parte decree is not liable to be set aside.
Even from the evidence given by Gurcharan Singh, Process Server, while appearing as RW2, it is clear that no suggestion has been put to him that he had given false report. From the evidence on the file, it is clear that Gurcharan Singh, Process Server, has proved
signatures of applicant/appellant on summons served upon him for appearance in ejectment petition and he has duly proved his report dated 10.8.2001. So, it is proved on the file that applicant/appellant had notice of ejectment petition and he was duly served. In view of the authority referred above, it is clear that ejectment order is not liable to be set aside on the ground of non compliance of Order 5 Rule 2 CPC, which an irregularity and not illegality. It has been rightly held by the learned trial Court that no ground is made out to set aside the ex-parte decree passed against the applicant/appellant.”
Still not satisfied, the petitioner has filed the instant revision petition before this Court.
Challenging the impugned orders, learned counsel for the petitioner has vehemently argued that the Courts below have failed to appreciate the fact that the respondent had categorically admitted that the petitioner was appearing in the earlier ejectment petition and had also tendered the rent in the said petition and therefore, there was no occasion for him not to appear in the instant petition especially when the first petition was being hotly contested and from the aforesaid fact itself, it is established that the petitioner was not served in the instant ejectment petition and the report of the process server being manipulated one, could not have been made the basis for proceeding ex parte against him resulting into his ex parte eviction.
I have heard learned counsel for the petitioner.
Both the Courts below on appreciation of evidence brought on record by the parties, have recorded a concurrent finding that the petitioner was properly served in the ejectment petition. It has come on record that Gurcharan Singh, Process Server has proved his report dated 10.8.2001 according to which summons of the petition was served upon
the petitioner himself. From the evidence of Gurcharan Singh, Process Server, who appeared as RW-2, signatures of the petitioner on the summons served upon him for appearance in ejectment petition were duly proved. Not only this, no suggestion was put to the said Process Server by the counsel for the petitioner that he had given false report. Therefore, the argument raised on behalf of the petitioner is without any merit and liable to be rejected.
Faced with this situation, learned counsel for the petitioner has further argued that the service was not effected as per Order 5 Rule 2 CPC as petitioner was not supplied copy of the petition along with the summons. Though the aforesaid plea was not taken by the petitioner in his application for setting aside the ex parte order of eviction, however, it is suffice to say that non supply of copy of petition along with summons is only an irregularity and on this ground, ex parte decree cannot be set aside. In this regard, reference can be made to the judgment of this Court cited as Risaldar Pakhar Singh (deceased by L.Rs) and others vs. Bhajan Singh (deceased by L.Rs) and others , AIR 1987 Punjab and Haryana 170.
No other point was argued.
Thus, no ground is made out to interfere in the impugned
orders of the Courts below.
Dismissed.
(RAKESH KUMAR GARG) JUDGE
November 4, 2011 ps
3 issues framed by the court
Whether the tenant failed to show reasonable cause to set aside the ex parte eviction order given that he was served but failed to appear?
Whether the claim that the application to set aside the ex parte order was time-barred is sustainable?
Whether non-supply of a copy of the plaint with the summons constitutes an illegality sufficient to set aside an ex parte decree?
Colour shows how this judgement treated each authority
Ruahar Pakhar Singh vs. Bhajan SinghReferred¶30
Ruahar Pakhar Singh (deceased by L.Rs) and others Vs. Bhajan Singh (deceased by L.Rs) and others, AIR 1987 Punjab and Haryana 170
Risaldar Pakhar Singh vs. Bhajan SinghReferred¶38
Risaldar Pakhar Singh (deceased by L.Rs) and others vs. Bhajan Singh (deceased by L.Rs) and others, AIR 1987 Punjab and Haryana 170
2 provisions across 1 enactments
Manjit Singh
Yashwant Rai
Rakesh Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
