Punjab-Haryana High Court
Shri Raghunath Dass vs Kuldip Singh And Anr. on 6 July, 1994
Equivalent citations: (1994)108PLR102
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT Ashok Bhan, J.
1. Kuldip Singh and Tirath Singh (hereinafter referred to as the respondents) filed an application against the petitioner Raghunath Dass (hereinafter referred to as the petitioner). The petitioner was ordered to be proceeded ex parte. The exparte order of ejectment was passed and in execution of that ejectment order, the respondents took the possession of the building in question on 30.3.1985.
2. The petition filed an application under Order 9 Rule 13 of C.P.C. for setting aside the ex parte proceedings and the decree passed against him on the plea that he was never served in the main petitiion and that the respondents, in collusion with the Process-Server, obtained the report of the refusal of the applicant on the summons. Further the case of the petitioner was that upon this false report, he was ordered to be summoned through Munadi and affixation but the respondents again colluded with the bailiff and got the false report of Munadi and affixation, whereupon the petitioner was ordered to be proceeded ex parte.
3. The petitioner filed the application on 1.4.1985 and notice of the application was served on the respondents. The respondents vehemently denied that they had obtained a false report of refusal of the petitioner from the Process Serving Agency, It was averred that the petitioner had refused to accept the service and thereafter he was ordered to be summoned through Munadi and affixation, and that the petitioner did not appear inspite of Munadi and affixation which had been duly made.
4. The petitioner, in support of his case, appeared as A.W. 1 whereas the respondents produced Kewal Chand as R.W. 1 and Raghunath Parsad as R.W. 2 R.W. 1 stated that the petitioner had refused to accept service. R.W. 2 in his statement averred that munadi was duly effected by him against the petitioner by affixation and beat of drum.
5. The Rent Controller came to the conclusion that the petitioner had not been duly served and a case had been made out by him for setting aside the ex parte proceedings and the order of ejectment passed against him but refused to set aside the proceedings on the ground that the petitioner had no loucs standi to file an application under Order 9 Rule 13 C.P.C. for setting aside the ex parte order as the petition's case, right from the begining, was that he was not the tenant of the landlord; rather it was his son Varinder Pal Bajaj who was the tenant in possession of the shop in question. It may be noticed that only the petitioner was arrayed in the ejectment petition and not Varinder Pal Bajaj. The possession of the property in dispute has been taken from the petitioner. The question as to who the tenant had to be determined in the main petition after setting aside the ex parte order. The same could not be decided at this stage. Accordingly to the landlords, the tenant in the property in dispute was the petitioner. It is the petitioner alone who would be entitled to get the ex parte order set aside against him and to contest the application for his ejectment from the property in dispute. The Rent Controller has clearly erred in refusing to set aside the ex parte order passed against the petitioner on his application. Issue No. 2 has been decided in favour of the petitioner and it has been held that the petitioner actually came to know about the passing of the ejectment order on 31.3.1985 and the application had been filed within limitation from the date of knowledge.
6. For the reasons stated above, this revision petition is accepted. The order passed by the Rent Controller is set aside. The application of the petitioner under Order 9 Rule 13 C.P.C. for setting aside the ex parte order stands allowed. The case is remitted back to the Rent Controller for decision on merits after affording due opportunity to the petitioner to defend himself. The parties through their counsel are directed to appeal before the Rent Controller on Jury 29,1994. No costs.