Punjab-Haryana High Court
Sukhbir Singh vs Mansa Ram And Ors. on 14 August, 1992
Equivalent citations: (1993)103PLR149
JUDGMENT N.K. Kapoor, J.
1. This revision petition is against the order of Rent Controller dated 25-1-i992 whereby the petitioner's application for setting aside exparte eviction order dated 24-7-1989 has been dismissed.
2. The case of the petitioner is that he learnt about this ex-parte order on 13-10-1989 and so filed the application. He further averred that as soon as he learnt about the ex-parte order, he came to the Court, applied for certified copy of the impugned order and after perusing the various interim 'orders passed by the Court, filed a petition for setting aside the ex-parte order on the ground that no proper service has been effected upon him in the rent application
3. Respondent Mansa Ram put in appearance, filed reply and controverted all the averments made by the applicant. He further pleaded that applicant Sukhbir Singh did not appear as he had no money to tender in the pending rent application.
4. On the pleadings of the parties, following issues were framed :-
1. Whether there are sufficient grounds to set aside the ex-parte eviction order dated 24-7-1989 as alleged in the petition ? OPA.
Relief.
5. The Rent Controller vide the impugned order came to the conclusion that no ground made for setting aside the exparte order and so dismissed the same.
6. The first submission of the learned counsel for the petitioner is that the Rent Controller has erred in law in not properly perusing the statement of Mahabir, Process Server. The process server, as per this statement, no where states that he knew the petitioner. There is no proof on the record that any other person identified the petitioner whose signatures have been alleged to be on the summons. Thus, according to the counsel, in the absence of proof with regard to the identity of the person who, in fact, put his signatures on the summons Exhibit R. W. 2/1, the Court, indeed, erred in concluding that the service was duly effected upon the petitioner. Not only this, even the landlord has not come in the witness-box in support of the statement of the process server.
7. The statement of Mahabir, RW2, is, indeed, material which when translated reads as under :-
"RW2 Statement of Mahabir, Pocess Server, in the Court of Senior Sub Judge, Jind, on S. A.;
I have seen the copy of sommons Exhibit RW2/1 from the summoned file. I went to serve this summon. Report Exhibit RW/2 is in my hand and is correct, I got the signatures of the respondent and put the date under it. I gave a copy of the summons as well.
Xnnn...............
I do not know Sukhbir Singh personally. I cannot positively say as to the person who signed on the, summons was, in fact, Sukhbir Singh or any other person. I have not got this summon attested by any other witness.
Sd/-
R. O. A. C. R. C. Jind"
26-9-1991
8. The counsel for the petitioner further submitted that after the passing of the ex-parte order of eviction dated 24-7-1989, the respondent filed another ejectment application against the petitioner on ground of non payment of rent and in this petition the arrears of rent for the period from 25-4-1988 to 24-1-1989 which form subject matter of the present petition were also included. According to the petitioner, all the arrears of rent along with costs and interest were tendered in the Court and accepted by the respondent without any objection. Thus, the respondent is precluded from raising the objection as the earlier petition stands merged with the latter.
9. The counsel for the respondent, however, in support of the impugned order urged that mere irregularity in the service of the summons is itself no ground to set aside the ex-parte order. He further submitted that the petitioner had, in fact, knowledge of the first date of hearing who intentionally evaded for the reason that he did not possess sufficient amount as was needed to tender on account of the rent due. The fact that an official has deposed to the effect that service was duly effected upon Sukhbir Singh is itself a sufficient proof that the same was effected upon him.
10. After considering the rival submissions of the learned counsel for the parties, I am of the view that this revision petition merits acceptance. The main stay of the respondent in support of the ex parte order is the statement of Mahabir, process server. A careful perusal of the statement reveals that he did not know the petitioner earlier. None accompanined the, process server nor the process server got attested the signatures of Sukhbir Singh from any other person known to him or residing in the locality where the service was allegedly effected. In the absence of the same, it would be quite hazardous to rely upon such a statement of the process server and thereby deny the petitioner valuable right of hearing. The process server has, not performed his duties properly. The process server was duty bound to get aim identified by a person known to him an I also to record to the same effect in his report. Both these vital aspects are missing in his report Exhibit RW2/1. Even in his statement before the Rent Controller, the process server has clearly admitted that he did not know Sukhbir Singh personally. In this way, the report of the process server cannot be deemed to be worthy of credence. The Rent Controller has, in fact, erred in relying upon such a report. Though there is no need to dilate upon the other contentions raised by the petitioner as the present petition succeeds on the first contention, yet to be fair to the parties, I would briefly examine the same as well The precise submission of the learned counsel for the petitioner is that since the tenant has paid rent in the subsequent application on the first date of hearing for the period which was subject matter of adjudication in the first application, such payment absolves the tenant of any default which might have been committed in not tendering the amount within the stipulated period For this view, the learned counsel drew my attention to the Division Bench judgment in case reported as Rattan Chand v. Jagmohan Singh, A. I. R. 1972 Punj. & Hary 153. There is no denying the fact that the above said judgment lends credence to the contention of the counsel for the petitioner. But this judgment has, in fact, been overruled by Full Bench judgment of this Court in Kalu Ram v. Gonda Mal, (1980) 82 P. L. R. 452 (F. B.), and this way, there is no merit in this contention of the petitioner. Whether this is an oversight 6r lack of update knowledge can be a matter of mere guess All the same it does not reflect well on a counsel of his standing at the bar. In view of my finding that the service has not been properly effected upon the petitioner, I accept this revision petition set aside the impugned order of the Rent Controller and send back the case to the Rent Controller for fresh decision. The parties, are directed to appear before the Rent Controller, Jind, on 22-9-1992.