Skip to content


Mahajan General Store Vs. Piara Singh and anr. - Court Judgment

SooperKanoon Citation

Subject

Constitution

Court

Punjab and Haryana High Court

Decided On

Case Number

Civil Revision No. 6427 of 2005

Judge

Reported in

(2006)142PLR514

Acts

Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; Constitution of India - Article 227

Appellant

Mahajan General Store

Respondent

Piara Singh and anr.

Appellant Advocate

 Raman Mehra and; Munishwar Puri, Advs.

Respondent Advocate

 B.R. Mahajan, Adv.

Disposition

Appeal dismissed

Cases Referred

 and Esquire Property Dealers and Anr. v. Ved Parkash Sardana and Ors.

Excerpt:


.....appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a..........the learned trial court has found that the plea on the basis of which the petitioner has sought setting aside of exparte ejectment order is factually incorrect. it has been found that not only the petitioner was properly served but he has even filed written statement and subsequently abstained, which led to the passing of the ejectment order. once, the ground on which the petitioner has sought setting aside of exparte proceedings is not only found to be incorrect but also totally false, the' finding recorded by the learned trial court cannot be said to be suffering from any patent illegality or irregularity warranting interference in exercise of revisional jurisdiction of this court under article 227 of the constitution of india.4. learned counsel for the petitioner has vehemently argued that the learned rent controller has not taken into consideration the judgment exhibit a1, ax and ay, inter-parties. the said judgments were relied upon to show that the ejectment sought by the landlord on identical grounds has remained unsuccessful. learned counsel for the petitioner has relied upon commissioner of income tax v. surindra singh pahwa and ors. 1995(1) civil court cases.....

Judgment:


Hemant Gupta, J.

1. The tenant is in revision petition aggrieved against the order passed by the learned trial Court on 12.11.2005, whereby application to seek setting aside of exparte ejectment order was dismissed.

2. An exparte ejectment order was passed on 26.2.1997. The application for setting aside exparte ejectment order was made on 15.3.1997 on the ground that the petitioner was not served as no process server ever came to effect the service and the landlord got wrong report resulting into exparte ejectment order. During the pendency of the said application, the petitioner sought amendment of an application under Order 6 Rule 17 of the Code of Civil Procedure on 16.5.1999. The said application was declined by the learned Rent Controller. The revision against the said order was also dismissed by this Court on 3.5.2005.

3. The learned trial Court has found that the plea on the basis of which the petitioner has sought setting aside of exparte ejectment order is factually incorrect. It has been found that not only the petitioner was properly served but he has even filed written statement and subsequently abstained, which led to the passing of the ejectment order. Once, the ground on which the petitioner has sought setting aside of exparte proceedings is not only found to be incorrect but also totally false, the' finding recorded by the learned trial Court cannot be said to be suffering from any patent illegality or irregularity warranting interference in exercise of revisional jurisdiction of this Court under Article 227 of the Constitution of India.

4. Learned Counsel for the petitioner has vehemently argued that the learned Rent Controller has not taken into consideration the judgment Exhibit A1, AX and AY, inter-parties. The said judgments were relied upon to show that the ejectment sought by the landlord on identical grounds has remained unsuccessful. Learned Counsel for the petitioner has relied upon Commissioner of Income Tax v. Surindra Singh Pahwa and Ors. 1995(1) Civil Court Cases 682, The Punjab National Bank v. Sita Ram and Ors. (1991-1)99 P.L.R. 12, G.P. Srivastava v. R.K. Raizada and Ors. 2000(1) R.C.R. 238, and Esquire Property Dealers and Anr. v. Ved Parkash Sardana and Ors. (2002-3)132 P.L.R. 236, to contend that the Courts are not to adopt hyper-technical approach while setting aside exparte order. It is argued that since the petitioner has approached the Court immediately within the statutory time specified, therefore, the discretion should have been exercised in favour of the petitioner.

5. However, I am unable to accept the arguments raised by the learned Counsel for the petitioner. The judgments inter-parties are in respect of the controversy on merits. Such judgments are not relevant to determine the plea of the petitioner whether he was properly served or there exists sufficient cause for setting aside the exparte proceedings. Therefore, such judgments cannot be considered, while considering the question of sufficiency of grounds of passing of an exparte order against the petitioner.

6. So far as the judgments to the effect that the Courts are not to adopt hyper-technical approach in such matters, suffice it to say that there cannot be any dispute about the proposition so laid. However, in the facts of the case, it is not the hyper-technical approach of the Court but the conduct of the petitioner which is relevant. The petitioner has sought setting aside of exparte ejectment order on a specific ground. Such ground has been found to be totally incorrect. The petitioner, in fact, put in appearance and was proceeded exparte but the proceedings were sought to be set aside on the ground that he was never served. Such false plea could not merit any consideration by the Court. The application for setting aside of the exparte ejectment order has been filed within one month. If the petitioner could come out with a false plea within a short period of passing of an ejectment order, such conduct does not merit any indulgence from this Court even on equity.

7. Consequently, I do not find any merit in the present revision petition. Hence, the same is dismissed.




Save Judgments// Add Notes // Store Search Result sets // Organize Client Files //