Rajasthan High Court - Jaipur
Smt Angoori Devi vs Shri Ramesh Chand on 29 August, 2016
S.B. CWP No. 10340/2016
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH JAIPUR
ORDER
S.B. Civil Writ Petition No. 10340/2016
Smt. Angoori Devi vs. Shri Ramesh Chand
Date of order: 29th August, 2016.
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Mr. Veyankatesh Garg, for the petitioner.
Mr. Kapil Prakash Mathur, for the respondent.
The present writ petition is a tactic to delay the decision of the application filed under Order 9 Rule 13 CPC. Having said so, this Court shall notice the brief facts of the case.
The respondent had filed an application in the year 2010 before Rent Control Tribunal, Ajmer for eviction of the petitioner and recovery of rent. The petitioner remained unserved and ex-parte decree was passed on 13.12.2011. Subsequently, the petitioner filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte order. During the pendency of the petition, an application was filed by the petitioner praying that liberty be granted to the petitioner to cross- examine the Process Server. The trial court vide impunged order rejected the prayer by holding that after the Process Server submitted report regarding non-service of the petitioner, much water has flown as subsequently, a notice was published in daily newspaper called 'Dainik Jagaran' hence, after publication of notice in newspaper, the petitioner cannot pray that the Process Server be cross-examined.
I find no infirmity in the impugned order passed by the Tribunal. The ex-parte order has not been passed because of report of service given by the Process Server. The ex-part order was passed for the reason that in spite of publication of notice in the newspaper, petitioner had not caused appearance in the court.
The learned counsel for the petitioner has cited two judgments to say that where the Tribunal had not given an opportunity to cross-examine the Process Server, the said order being bad is required to be set aside. A perusal of the judgments cited reveal that in those cases court notice was not published in the newspaper. The learned S.B. CWP No. 10340/2016 2 counsel for the petitioner has also relied on other three judgments, one of Punjab and Haryana High Court in Kuldip Rai vs. Sharan Singh (deceased by Lrs) and Ors, Civil Revision No. 893/1984 decided on 15.2.1989; second of Rajasthan High Court in Harbhajan Singh & Anr. vs. LR's of Gardhara Singh, 2010(3) DNJ (Raj.) 1139; and third of Allahabad High Court in Om Prakash vs. Prakash Chand & Ors., Civil Misc. Writ Petition No. 24922/2004 decided on 8.7.2004, to contend that cross- examination of Process Server is necessary. The judgments cited are not again applicable. In those judgments, the order whereby the court had refused to set aside the ex-parte order was challenged.
Taking totality of circumstances, there is no merit in the present writ petition and the same is dismissed.
However, considering that the eviction petition was filed in the year 2010, a direction is issued to the Tribunal to decide the application filed under Order 9 Rule 13 CPC pending before it within one month from today, after hearing all concerned.
(KANWALJIT SINGH AHLUWALIA), J.
Mak/-
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