BACHITTAR SINGH Vs. RAM DASS BHASIN

JUDGEMENT

(1.) This is Bachittar Singh landlord's (hereinafter referred to as the landlord) revision petition directed against Appellate Authority order dated February 11, 1940, allowing in appeal Ram Dass tenant's hereinafter referred to as the tenant) application under Order 9 Rule 13, C.P.C. for setting aside the ex parte order of ejectment dated 14th May, 1977, and reversing the order of the Rent Controller dated 29th October, 1977, who had dismissed the tenant's application for setting aside ex-parte order

(2.) The landlord had sought the ejectment of the tenant on the ground of non-payment of rent. The amount of rent claimed was Rs. 2,450/-. Attempt to effect service of the ejectment petition on the tenant through ordinary process having failed, service was effected through affixation. Despite such a service, the tenant did not appear on 26th February, 1977, for which date the petition for ejectment was adjourned. On that day an order for proceeding ex parte was passed and the case was adjourned for 11th March, 1977, for the evidence of the petitioner. The tenant, who works as contractor in Himachal Pradesh, had come to attend ejectment proceedings already pending between him and the landlord regarding this very house in the Court of Mr. A.S. Sodhi, on 19th March, 1977, where he came to know that an ex parte ejectment order had been passed by another Court against him on 9th March, 1977. He, therefore, on 10th, March, 1977, moved an application for setting aside of the ex plate order dated 9th March, 1977, and also for staying of the execution of the ex-parte ejectment order dated 9th March, 1977. That application was put up for 11th March, 1977. None appeared on behalf of the tenant and thus the said application was dismissed. On 14th March, 1977, on the present ejectment petition the final ex parte ejectment order was passed. The tenant on coming to know about the ex parte order dated 7th April, 1977, moved the present petition under Order 9 Rule 13 C.P.C. for ratting aside that ex-parte order. Landlord contested the petition. Two contentions were advanced against the acceptance of the tenant's petition; (1) the service upon the tenant was satisfactory; (ii) that the tenant having participated in the proceedings, no application under Order 9 Rule 13 was competent; his remedy was by way of appeal.

(3.) The Appellate Authority came to the conclusion that in the first instance, no proper effort was made to serve the tenant. Admittedly, the tenant was working as a Contractor in Himachal Pradesh and the service was to be effected on him on that address. The Appellate Authority smelled a rat in regard to the service by affixation. It did not place reliance on the report of the process server. In my opinion, the Appellate Authority rightly held that there was no proper service In a case where ejectment of a tenant is sought on the ground of non-payment of rent, no tenant in his senses would after coming to know of the proceedings would avert appearance for he knows that if he did not tender rent on the first date of hearing, an order of ejectment would be passed against him, more so, in a case where arrears of rent is not much and the same it within his capacity to pay in the present case, the amount was only Rs. 2,450/-. The tenant being a contractor could easily have paid the same on the first date of hearing and have the application dismissed the Appellate Authority rightly doubted the genuineness of the report of the process server and disbelieved his testimony regarding affixation.