Punjab-Haryana High Court
State Of Haryana vs Jasmohinder Singh on 4 March, 2011
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CR No.2499 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.2499 of 2010 (O&M)
Date of Decision: 04.3.2011
State of Haryana
. . .Petitioner
Versus
Jasmohinder Singh
. . . Respondent
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Ms.Sushma Chopra, Addl. A.G. Advocate, Haryana,
for the petitioner.
Mr.Chetan Mittal, Sr. Advocate, with
Mr.Vishal Garg, Advocate,
for the respondent.
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RAKESH KUMAR JAIN, J.
Tenant has filed the present revision petition assailing two orders dated 18.3.2010 (Annexures P-3 and P-4) whereby the Executing Court dismissed the objections filed by the judgment-debtor/tenant and issued warrant of possession.
In brief, the demised premises is a house in Sector 18, Chandigarh, which was let out to the tenant/State of Haryana for residential accommodation of the Minister on 1.10.1987. The landlord Jasmohinder Singh filed Rent Application No.100 dated 30.9.1999 against the tenant/petitioner under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short 'the Act') on the twin grounds of non-payment of rent w.e.f. 31.51988 and change of user. The tenant was duly served with summons on 6.10.2000, who did not appear and as such they were proceeded against ex parte and after recording the ex parte evidence of the landlord, the Rent Controller vide its order dated 12.2.2001 allowed the eviction petition. The landlord then filed Execution Application No.15 of 4.4.2002 in which the tenant filed objections. On the pleadings of the parties, issues were framed to the following effect:
CR No.2499 of 2010 (O&M) -2-"1. Whether the ex parte judgment/decree dated 12.2.2001 is liable to be set aside? OP objector.
2. Whether the application is within limitation? OPR
3. Whether the application is not maintainable?
OPR
4. Relief."
After taking evidence, the learned Executing Court observed that in the cross-examination OW-1 Balwant Singh Khokhar had admitted that the demised premises was taken on rent by the tenant on 1.10.1987 @ `6000/- per month which was paid upto 31.5.1988. He admitted that rent agreement was executed between Jasmohinder Singh (landlord) and the State of Haryana through Executive Engineer, Provincial Division No.1, Chandigarh. It was also admitted that summons in the eviction petition was duly received on 6.10.2000 to appear before the Court on 9.10.2000, which was diaried in the register at serial No.5336 on 6.1.2000 as per original diary brought by him. He also admitted that they had to appear before the Court on 9.10.2000. He also brought with him the summons issued in the said eviction petition and deposed that the said summons were accompanied with the copy of the petition but he further stated that he cannot say that whether they took any action on 9.10.2000 or thereafter to appear in the Court. The learned Court below has also observed that from the testimony of the tenant's witnesses it is proved that they were aware of the pendency of the eviction petition which was denied by them during the course of arguments but it was held that in the Civil Suit filed by the tenant the present decree-holder (landlord) had filed a written statement on 14.10.1999 in para No.6 of which they have categorically stated about the pendency of the rent petition, which was much earlier to the passing of the eviction order on 12.2.2001. It was also observed as under: -
"So, from the above said admissions on the part of the OW 1 Balwant Singh Khokhar, the judgment debtor/objector has the full knowledge about the pendency of the rent petition, proceeding them ex parte on 9.10.2000 because the summons for appearing in the said rent petition were admittedly received by the judgment debtor/objector and further the judgment debtor/objector is also aware of passing of the ex parte CR No.2499 of 2010 (O&M) -3- eviction order dated 12.2.2001 but in spite of that the judgment debtor/objector have not made any effort to appear in the said eviction petition so as to contest the same and even later on they have not made any application to set aside the ex parte proceedings dated 9.10.2000 and the ex parte eviction order dated 12.2.2001 nor any appeal was filed against the ex parte eviction order dated 12.2.2001. So in view of the facts and circumstances of the case, the judgment debtor/objector had the knowledge about the pendency of the eviction proceedings since 6.10.2000 when the summons were received by it regarding the said eviction petition, hence the present objection at this stage are very belated."
Keeping in view the circumstances, objection petition was dismissed and at the same time warrant of possession was issued.
Aggrieved against the said orders, present revision petition has been filed in which it is alleged that due to lack of proper advice, application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short 'CPC') could not be filed before the proper Court but now they have filed an application before the Rent Controller, who had passed the order of the ex parte eviction in which notice has been issued. It is alleged that though the summons were received on 6.10.2000 but the deputed official was negligent in his duty in not properly defending the case on behalf of State of Haryana as a result of which nobody had appeared on 9.10.2000 when they were proceeded against ex parte.
After notice of motion, the landlord filed CM Nos.4628 & 4629-CII- 2011 in order to place on record application and objection dated 26.11.2003 filed before the Executing Court and the application under Order 9 Rule 13 of the CPC which is now filed on 10.4.2010 before the Rent Controller after the delay of 3470 days. He also prayed in the application that he may be exempted from filing certified copies of these documents, which are attached as Annexures R-1 to R-3. Both the applications are allowed as prayed for.
Learned counsel for the respondent has submitted that the petitioner/tenant has not come to this Court with clean hands as they have not CR No.2499 of 2010 (O&M) -4- disclosed in their grounds of revision that objection before the Executing Court was also filed along with an application under Order 9 Rule 7 & 13 of the CPC for setting aside the ex parte order dated 9.10.2003 and the decree dated 12.02.2001 passed by the Rent Controller and for this purpose this application is placed on record through CM No.4629-CII-2011, which has already been allowed. It is further submitted that there is no error in the impugned order because everything has been admitted by the tenant with regard to the receipt of summons from the Rent Controller of the eviction petition filed by the landlord, which was duly diaried and then the concerned official did not choose to appear on the date fixed leaving no alternative with the Rent Controller to proceed ex parte. Now, it does not lie in the mouth of the tenant to challenge the said order by way of objection merely by condemning the concerned official on the ground of red- tapism. If there is any fault on the part of the State functionaries or if it is felt that there is some hanky-panky at the hands of the PWD (B&R) Department, who was custodian of that demised premises, the State Government is free to initiate appropriate departmental enquiry or take any other legal action as prescribed under the law but this fact alone would not make the impugned order illegal for the purpose of setting it aside by this Court.
In view of the above discussion, I do not find any merit in the present revision petition and as such the same is hereby dismissed with cost.
(RAKESH KUMAR JAIN)
MARCH 04, 2011 JUDGE
Vivek