Shri Durga Singh Chandel Vs. Smt. Gurbax Kaur - Court Judgment

Excerpt:
- orderv.k. jhanji, j.1. this is tenant's revision directed against the order of the rent controller whereby his application for setting aside the ex parte order dated 14 8.1985 was dismissed.2. ejectment of the petitioner was sought on the ground of nonpayment of rent petitioner was proceeded against ex parte. as per the case of the petitioner, he came to know about the passing of the ex parte order only on 15.1.1986 when he appeared in the court of rent controller in pursuance of the service of summons which was effected upon him in december, 1985. application for setting aside the ex parte order was filed on 18.1.1986. in the application, it was claimed that the ex parte order was obtained in collusion with the process-server by getting a wrong report made by him.3 respondent, upon notice, filed reply to the application contesting the claim of the petitioner.4. from the pleadings of the parties, the following issues were framed :-1. whether there are sufficient grounds for setting aside ex parte order of eviction dated 14.8 1985 opa2. whether the application is within time opr3. relief5. on issue no. 1, the rent controller found that service was never effected on the' petitioner. , rather, the petitioner was proceeded against ex parte on the basis of service of summons in some other case titled 'manohar singh v. gurbax singh.' in that case, the petitioner was not even a party. however, application was dismissed on the ground that the same was barred by limitation. the rent controller was of the view that the process-server went to the house of the petitioner on november 7, 1985. the petitioner was not present and, therefore, the contents of the summons were read out to some lady who was present in the house. the rent controller raised a presumption that the lady must be the wife of the petitioner and, therefore, the petitioner had knowledge of the ex parte order on 7.11.1985.6. i am of the view that the finding of the rent controller on issue no. 2 cannot be sustained. the respondent has not n t proved the record that the petitioner came to know about the-ex parte proceedings in november, 1985. it was also not been proved that the lady present in the house to whom the process-server read out. the; contents of the summons, was the wife of the petitioner. petitioner has successfully proved on the record that he was not served in pursuance of the service of summons which was effected upon him in december, 1985, when he appeared in the court of rent controller on 15.1.1986, he came to know about the passing of the ex parte order. he filed application for setting aside the ex parte order on 18.1.1986. application was thus filed within time. consequently, the impugned order is set aside. the petitioner through his counsel is directed to appear before the rent controller, chandigarh on 12.10.1992. no costs.

Judgment:
ORDER

V.K. Jhanji, J.

1. This is tenant's revision directed against the order of the Rent Controller whereby his application for setting aside the ex parte order dated 14 8.1985 was dismissed.

2. Ejectment of the petitioner was sought on the ground of nonpayment of rent Petitioner was proceeded against ex parte. As per the case of the petitioner, he came to know about the passing of the ex parte order only on 15.1.1986 when he appeared in the Court of Rent Controller in pursuance of the service of summons which was effected upon him in December, 1985. Application for setting aside the ex parte order was filed on 18.1.1986. In the application, it was claimed that the ex parte order was obtained in collusion with the process-server by getting a wrong report made by him.

3 Respondent, upon notice, filed reply to the application contesting the claim of the petitioner.

4. From the pleadings of the parties, the following issues were framed :-

1. Whether there are sufficient grounds for setting aside ex parte order of eviction dated 14.8 1985 OPA

2. Whether the application is within time OPR

3. Relief

5. On issue No. 1, the Rent Controller found that service was never effected on the' petitioner. , Rather, the petitioner was proceeded against ex parte on the basis of service of summons in some other case titled 'Manohar Singh v. Gurbax Singh.' In that case, the petitioner was not even a party. However, application was dismissed on the ground that the same was barred by limitation. The Rent Controller was of the view that the process-server went to the house of the petitioner on November 7, 1985. The petitioner was not present and, therefore, the contents of the summons were read out to some lady who was present in the house. The Rent Controller raised a presumption that the lady must be the wife of the petitioner and, therefore, the petitioner had knowledge of the ex parte order on 7.11.1985.

6. I am of the view that the finding of the Rent Controller on issue No. 2 cannot be sustained. The respondent has not n t proved the record that the petitioner came to know about the-ex parte proceedings in November, 1985. It was also not been proved that the lady present in the house to whom the process-server read out. the; contents of the summons, was the wife of the petitioner. Petitioner has successfully proved on the record that he was not served in pursuance of the service of summons which was effected upon him in December, 1985, When he appeared in the Court of Rent Controller on 15.1.1986, he came to know about the passing of the ex parte order. He filed application for setting aside the ex parte order on 18.1.1986. Application was thus filed within time. Consequently, the impugned order is set aside. The petitioner through his counsel is directed to appear before the Rent Controller, Chandigarh on 12.10.1992. No costs.