Mahabir Sewa Samiti (Regd.) Vs. Parkash Coal Depot and anr. - Court Judgment

Excerpt:

.....both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - the conclusion is that the rent controller who had passed an ex-parte order of eviction was after sometime satisfied that on the unrebutted affidavit of the tenant it was a fit case for setting aside an ex-parte order of eviction notwithstanding the subsequent event such as the alleged execution of the order of eviction as observed in m/s......and no counter affidavit was filed by the respondent (landlord) the trial court considered the un- rebutted affidavit of respondent-tenant sufficient evidence for setting its own ex-parte order of eviction. in manohar lal l. nadarchand v. mohan lal gian chand, a. i. r. 1957 punjab 72, it was observed that a rent controller was at liberty to devise his own procedure in ascertaining the facts on which he is to act or decide. the conclusion is that the rent controller who had passed an ex-parte order of eviction was after sometime satisfied that on the unrebutted affidavit of the tenant it was a fit case for setting aside an ex-parte order of eviction notwithstanding the subsequent event such as the alleged execution of the order of eviction as observed in m/s. manick enterprises v. haji sulaiman, 1989 (2) rent l. r. 29. in view of this no interference is called for and the present revision attempted by the landlord is hereby dismissed.

Judgment:

ORDER

J.B. Garg, J.

1. Mahabir Sewa Samiti (Regd.) Baikhunthpuri, Shahabad (M) is a registered Society and is the landlord in respect of the shop in question and it was let out to Parkash Coal Depot, Shahabad at the rate of Rs. 200/- per mensem vide a rent note dated 16.10.1984 and Krishan Lal Anand was alleged to be a sub-tenant. A petition for eviction was instituted mainly on the plea of non-payment of rent since 16.6.1987. The respondent No. 2, the sub-tenant, was given up The proceedings against the tenant were ordered ex-parte on 12.6.1990 and on the plea of non-payment of rent an order of eviction was passed ex-parte by Shri Dewan Chand, Rent Controller, Kurukshetra on 28.2.1991.

2. An application was made for setting aside the ex-parte order of eviction by tenant alleging that he did not know that these summons related to a fresh eviction petition inasmuch as two eviction petitions were already pending against him. Shri Dewan Chand has passed an order setting aside the ex-parte order of eviction on 5.12.1991 and aggrieved against it the landlord has moved the present revision.

3. On behalf of the petitioner it has been pleaded that the Rent Controller should have framed as issue whether there was sufficient cause for non-appearance of the tenant and whether the application for setting aside the ex-parte order of eviction was within limitation.

4. On behalf of the respondent it has been argued that one eviction petition against him was pending in the court of Shri Indarjit Mehta and another in the Court of Mr. Darshan Singh the two Rent Controllers and he could not understand that a fresh eviction petition has been instituted in the Court of Chief Judicial Magistrate-cum Rent Controller, because the summons were not served alongwith a copy of plaint. The learned Rent Controller has relied upon the affidavit filed by the tenant-respondent and no counter affidavit was filed by the respondent (landlord) the trial Court considered the un- rebutted affidavit of respondent-tenant sufficient evidence for setting its own ex-parte order of eviction. In Manohar Lal L. Nadarchand v. Mohan Lal Gian Chand, A. I. R. 1957 Punjab 72, it was observed that a Rent Controller was at liberty to devise his own procedure in ascertaining the facts on which he is to act or decide. The conclusion is that the Rent Controller who had passed an ex-parte order of eviction was after sometime satisfied that on the unrebutted affidavit of the tenant it was a fit case for setting aside an ex-parte order of eviction notwithstanding the subsequent event such as the alleged execution of the order of eviction as observed in M/s. Manick Enterprises v. Haji Sulaiman, 1989 (2) Rent L. R. 29. In view of this no interference is called for and the present revision attempted by the landlord is hereby dismissed.