Punjab-Haryana High Court
Sarwan Kumar vs Shyam Mangla on 23 August, 1989
Equivalent citations: (1990)97PLR152
JUDGMENT M.S. Liberhan, J.
1. This is a revision peti- tion arising out of an order of the Rent Controller, Palwal, declining to set aside his own order of ejectment passed ex-parte.
2. The facts giving rise to this revision are that the ejectment of the petitioner was sought on the ground of non-payment of rent. The petition was preferred on October 3, 1985 and notice to the petitioner- tenant was issued for December 12, 1985, On December 12, 1985, summons were not received by the Court either served or unserved. Resultantly an explanation of Naib Nazir was sought after lunch and the explanation of civil Ahlmad was sought for December 19, 1985. On December 19, 1985 the Court ordered ex-parte proceedings against the petitioner-tenant.
3. The petitioner preferred an application for setting aside the ex-parte order inter alia praying that the case was not called nor it was adjourned for awaiting the service of the respondent, rather the order passed on December 12, 1985 was as under :
"Present Sh. R. D. Mangla, Advocate for the petitioner. Respondent not (served) summoned."
"Naib Nazar has submitted his report. In view of his explanation, explanation of Civil Ahlmad, Sh. Udham Singh be sought for 19-12-1985."
This averment of the petitioner-applicant was not denied by the respondent and it has been only stated in the reply that Para No. 2 of the application is a matter of record, but he had been duly served. No order of ex-parte proceedings was passed on December 12, 1985 nor the case was adjourned for December 19, 1985 for any proceedings. On my repeatedly asking from the counsel for the parties, no satisfactory answer has been given as to what for the case was adjourned to December 19, 1985. The petitioner specifically stated that he was never summoned for December 19, 1985 nor the case was fixed for any proceedings on December 19, 1985. This fact has not been refuted in the course of arguments before me, though the order proceeding ex parte against the petitioner was passed on December 19, 1985. The case was adjourned for recording the ex-parte evidence to January 16, 1986 which finally resulted in passing the order of ejectment on March 20, 1986.
4. An application for setting aside ex-parte order was moved on May 15, 1986 contending that the applicant had no knowledge of the ejectment order, dated March 20, 1986.
5. The landlord-respondent raised various objections against the petition for setting aside the ex-parte order viz that the application is not maintainable as the tenant-petitioner was served, the application is time barred, application has been filed with ulterior motive for prolonging the litigation as the matter and the proceedings were in the knowledge of the petitioner. The date of acquiring the knowledge was controverted.
6. The Rent Controller after framing the issues to the effect "whether there is sufficient ground to set aside the ex-parte order dated 19-12-1985 and 20-3 1986" and "The application being within time" attempted to unravel the facts. While doing so, he observed that the summons which had come on record show that the tenant was served for December 12, 1985, but the summons were not placed on the file of the presiding Officer, who called the explanation of the Naib Nazir after lunch and Civil Ahlmad for December 19, 1985. However, the summons were traced out and placed on the record and treating the service to be valid, the respondent was ordered to be proceeded ex-parte on December 19, 1985 and since the petitioner has nowhere claimed that he was not served for December 12, 1985, the ex parte proceedings taken on December 19, 1985 are valid. It was further observed that in spite of the fact that the case was not called, it was incumbent duty of the respondent himself to appear before the Court and get his presence marked after verifying the facts of the case. Instead of doing so, the respondent sliped away from the Court and thereafter did not bother to verify the facts of the case for another five months, resultantly it was assumed that the tenant had the knowledge of the proceedings. He further relied upon Order 9, Rule 13 of the Cods of Civil Procedure wherein it has been provided that "no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim." It was further observed that he was duly served and did have the time to appear on December 12, 1985 and the ex-parte proceedings has been legally ordered on December 19, 1985 which resulted in ex parte order of ejectment dated March 20, 1986 It was further found that the date of knowledge acquired by the petitioner-tenant, as stated in the application is not correct. Consequently, the petition is barred by time.
7. The only question raised in this case is whether an ex-parte proceeding can be orderded on a date subsequent to the date fixed for appearance of the parties, particularly when the case is not adjourned for the said date for any proceedings in the Court nor the defendant is required to appear on the said date. On my repeatedly asking the counsel for the parties, whether there is any order on the record except the one for asking explanation of the Naib Nazir with respect to summons that shows that the case was fixed for consideration for any purpose on December 19, 1985 but nothing has been pointed but. In view of these undisputed facts, admittedly the case was never fixed for any proceedings on December 19, 1985 except for, asking the explanation of the staff on the administrative side The tenant even if he knew all the proceedings was not bound to appear on December 19, 1985. He was justified in expecting notice , to be served upon him for appearance. No order for ex-parte proceedings can be passed for non-appearing on a date already expired and no action or order can be passed to proceed ex parte on the date fixed for which he had no notice. The Courts cannot proceed ex parte, latter for non-appearance on the date fixed earlier for which the service of summons was effected and the date had already expired without any proceeding having taking place. No ex parte, proceedings can be taken with retrospective effect.
8. In my considered view the observations of the learned Rent Controller that there was an irregularity in the service of summons, which had resulted in ex-parte proceedings and the petitioner had the knowledge of the proceedings and sufficient time to appear in Court is again unfounded. It is not a case of irregularity in service of summons. The summons may have been properly served for December 12,1985 but no proceedings took place on that date. A person who is not conversant with the legal procedure not expected to get his presence recorded, particularly when the Reader has appeared in the witness box on behalf of the respondent and stated that the case was not called for second time though the petitioner stated that it was conveyed to him by the Reader that next date shall be intimated to him. Be that as it may, in my considered view the order dated, December 19, 1985 is a verbal order which has resulted in the order dated, March 20, 1986, which will again be avoid order having been passed at the back of the petitioner without summoning him. The question of limitation does not arise. Void order can be ignored even in the execution proceedings muchless by getting it set aside
9. At this stage, the learned counsel for the respondent has raised the objection that the final order of ejectment' has been passed end the same being an appealable order, no revision petition lies. The contention of the learned counsel for the petitioner has no force. The revision petition is against the order declining to set aside the ex-parte order and the final order, If the ex-parte is set aside, the final order lapsis with it. Apart from this under Section 15(5) of the Rent Restriction Act, this Court has the power to suo moto send for the record to see the legality of the proceedings of the Rent Controller in any ejectment case.
10. Keeping in view the peculiar facts and circumstances of the case, I in exercise of my sou moto powers and observing that the Rent Controller has not even adverted to the facts for setting aside the ex-parte order has acted illegally, quash the impungned order and the consequent order of ejectment.
11. In view of my observations above, the impugned orders viz. the ex parte order and the order declining to set aside the ex parte order as also the order of ejectment are quashed The case is remanded to the Rent Controller concerned to proceed in accordance with law afresh in the ejectment proceedings. The parties are directed to appear before the Rent Controller on September 29, 1989.