Dismissed

Amar Singh v. Jainendera Gurukul

Punjab & Haryana HC12 Jul 2013CR/6482/2011

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition challenging ex parte eviction orders. The Court held that the petitioner unnecessarily delayed filing petitions to set aside the orders after knowing about the pendency of the case, rendering the delay inexcusable.

What did the court decide?

The civil revision petition filed under Article 227 was dismissed for not disclosing any merit, as the petitioner caused unnecessary delay.

Amar Singh Vs Jainendera Gurukul — Landlord and Tenant | Punjab & Haryana HC (2013)

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�� !�"� ��#�$��%#�&��'�(�� Date of decision: 12^th July, 2013

Amar Singh

� Petitioner Versus

Jainender Gurukul

� Respondent

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Present: Mr. Sanjeev Gupta, Advocate for the petitioner.

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Mr. Adarsh Jain, Advocate for the respondent.

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CM No.14553,54,CII of 2013

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Applications are allowed subject to all just exceptions and the copies of zimni orders are taken on record.

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Civil Revision No.6482 of 2011 (O&M)

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As per the brief facts, the respondent,landlord filed an eviction petition against the petitioner,tenant, on the grounds of arrears of rent and bonafide requirement, before the Rent Controller, Panchkula on 11.08.2001. According to the petitioner,tenant, the said petition was allowed vide ex,parte order dated 12.02.2007 and he came to know about the aforesaid ex,parte order of eviction only when he received the execution notice in the second week of December, 2008. Immediately on 18.12.2008, he filed an application

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for setting aside the said order, which was dismissed by the Rent

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Singh Rattan Pal 2013.07.20 12:21 I attest to the accuracy and integrity of this document High Court, Chandigarh

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Controller, Panchkula vide order dated 06.06.2011 and thereafter, he filed an appeal against the said order which was also dismissed by the Appellate Authority on 10.10.2011 on the ground that the appeal was not maintainable, and thus, the instant revision petition has been filed by the petitioner,tenant challenging the aforesaid order dated 06.06.2011 passed by the Rent Controller, Panchkula whereby his application for setting aside the ex,parte eviction order dated 12.02.2007 was dismissed, and challenging the order dated 10.10.2011 of the Appellate Authority whereby appeal filed by the petitioner,tenant against the order dated 06.06.2011 was dismissed.

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In the grounds of revision, by referring to the zimni orders dated 11.08.2001 and 05.04.2002 of the Rent Controller, Panchkula, learned counsel for the petitioner has raised an argument that the Rent Controller had ordered effecting of service upon the petitioner by way of Munadi and affixation for 06.08.2002 without recording any reasons and without making any effort to serve the petitioner either through ordinary process or through dasti summons. According to learned counsel for the petitioner, the trial Court on the first date i.e. 11.08.2001 had directed service upon the petitioner on filing of the process fee and registered cover etc., but no summons were sent to him through registered post and on the very second date i.e. 05.04.2002 the petitioner was ordered to be served by way of Munadi observing that he was avoiding service of summons. A submission has been made on behalf of the petitioner that in the facts and circumstances of the case, the Rent Controller should not have

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Singh Rattan Pal 2013.07.20 12:21 I attest to the accuracy and integrity of this document High Court, Chandigarh

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ordered substituted service on the very next date without recording any finding to the effect that the petitioner could not be served by way of ordinary process, and in the absence of any such finding the impugned order is liable to be set aside.

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Learned counsel for the petitioner has also relied upon a catena of judgments to contend that substituted service could be resorted to only as a last resort when the defendant could not be served by ordinary process.

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However, on the other hand learned counsel for the respondent,landlord has vehemently opposed the prayer made by the petitioner on the ground that the petitioner was ordered to be proceeded against ex,parte on 25.09.2003 and the ex,parte judgment was passed on 12.02.2007, whereas the application for setting aside the said order dated 12.02.2007 was filed in the year 2008 though the petitioner was aware of pendency of the case.

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At this stage, it may be noticed that the Rent Controller, in the application for setting aside the ex,parte order dated 12.02.2007, framed the following issues:

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Thereafter, the parties were allowed to lead their evidence. The Rent Controller, on perusal of the evidence produced

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Singh Rattan Pal 2013.07.20 12:21 I attest to the accuracy and integrity of this document High Court, Chandigarh

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on record by the petitioner,tenant as well as the respondent,landlord, came to a conclusion that from the evidence led by the respondent, it is clearly established that the notice of the petition was served upon the petitioner and he did not appear and thereafter, Munadi was ordered to be effected and the petitioner despite having knowledge of the proceedings did not appear intentionally to delay the proceedings. It has been further found that the petitioner has failed to show sufficient reasons to set aside the order dated 25.09.2003 whereby he was ordered to be proceeded against ex,parte and the judgment & decree of eviction passed against him ex,parte on 12.02.2007.

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Learned counsel for the respondent,landlord has brought to the notice of this Court that on the summons issued vide order dated 11.08.2001 for 04.12.2001, a report had been received that “the petitioner is not residing at the given address”; whereas on the summons issued for 05.04.2002 a report was received with the remarks “that house of the petitioner was found locked”. Referring to the aforesaid reports, learned counsel for the petitioner has placed a heavy reliance upon the fact that the petitioner being a driver in Haryana Roadways remained out of his house most of the time and therefore, he could not have the notice as per Munadi.

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However, the aforesaid argument raised is demolished from the averment of the petitioner in the application for setting aside the impugned orders, wherein he has stated that the petitioner is residing with his family members who remain at house and no person

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Singh Rattan Pal 2013.07.20 12:21 I attest to the accuracy and integrity of this document High Court, Chandigarh

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visited the area to effect Munadi. The petitioner has not examined any of his family members to support the aforesaid submission, which is in contradiction of the argument raised before this Court.

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The report on the summons has been made by the Process Serving Agency of the Court in the ordinary course of its duties. The petitioner is doubting the credibility of the Process Serving Agency without summoning any witness in support of his case to prove his averments.

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The petitioner has further failed to place on record sufficient reasons for filing application for setting aside the ex,parte orders after such a long delay. It is a matter of fact that in a suit for ejectment filed on behalf of the respondent,landlord, the petitioner filed written statement, wherein, he had specifically pleaded with regard to filing of the instant eviction petition by the respondent, landlord; thus, admitting the factum of filing of the instant petition for eviction against him. The aforesaid fact has been duly noticed by the Civil Judge (Junior Division), Panchkula in his judgment dated 28.10.2005 placed on record as Annexure P,10 before this Court. The said fact, as noticed in the Civil Suit, which has never been challenged, clearly demolishes the whole case of the petitioner that he was not having the knowledge of pendency of the instant eviction petition.

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Not only this, it may further be noticed that the petitioner after passing of the order dated 06.06.2011, filed an appeal before the Appellate Authority which was not maintainable and thus, in the

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Singh Rattan Pal 2013.07.20 12:21 I attest to the accuracy and integrity of this document High Court, Chandigarh

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process he gained more time to delay the proceedings. This view of the Court is further fortified from the fact that in his grounds of revision, the petitioner has nowhere stated that he had filed an appeal before the Appellate Authority against the order dated 06.06.2011 in ignorance of law or for a sufficient reason. Even before this Court, the petitioner has filed the instant revision petition under Article 227 of the Constitution of India, whereas his remedy against the order dated 06.06.2011 lies under Section 15 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 wherein a limitation period of 90 days is prescribed. This petition is filed to overcome the expiry of such limitation of prescribed period and to avoid the explaining of reasons for such a delay. Thus, there is nothing on record to suggest that the petitioner was continuing with filing of an appeal before the Appellate Authority bonafidely.

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In this view of the matter, this Court finds no merit in this petition and thus the same is dismissed.

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Singh Rattan Pal 2013.07.20 12:21 I attest to the accuracy and integrity of this document High Court, Chandigarh

Amar Singh v. Jainendera Gurukul

Case brief

What is this about?

What did the court decide?

Amar Singh v. Jainendera Gurukul

Case brief

What is this about?

What did the court decide?

What the court decided

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