TRILOK SINGH Vs. GANGA DEVI

JUDGEMENT

(1.) SMT . Ganga Devi filed a joint petition for eviction under section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, against her tenants Amrik Singh and Trilok Singh, sons of Satwant Singh, from shop No. 250. In those proceedings Trilok Singh tenant was proceeded ex-parte. On 10.6.1982, when the ejectment case was fixed for final arguments, Trilok Singh tenant filed an application for setting aside the ex-parte proceedings on the ground that he was not served and the report of service, if any, was wrong and since there was no service in accordance with law, ex-parte proceedings deserve to be set aside. That application was opposed by the landlord. By order dated 9.8.1982, the learned Rent Controller dismissed the application as having been filed beyond the period of limitation of 30 days although it came to the conclusion that he was not properly served because according to the report of the Process Server dated 14.7.1981, the tenants refused service of notices for want of copies of the ejectment petition. It also concluded that the applicant had the knowledge of the ejectment proceedings from the very beginning but did not appear in Court intentionally to delay the proceedings. Trilok Singh tenant has come to this Court in this revision petition.

(2.) AFTER hearing the learned counsel for the parties at great length, I am of the view that this revision petition deserves to succeed. It has been held by this Court repeatedly that in ejectment cases there is due service of the tenant only when he is served with summons of the Court along with a copy of the ejectment petition and if the copy of the ejectment petition is not supplied along with the summons, it is no service in the eye of law. Reference may be made to Jagat Ram v. Shanti Sarup, 1965 P.L.R. 45 (D.B.), Jagan Nath and another v. Tek Chand and another, 1974 P.L.R. 339, and Piare Lal v. Kehru Ram, 1982 Cur. L.J. 411. Even Rule 7 of the Haryana Urban (Control of Rent and Eviction) Rules, 1976, provides that a copy of the ejectment petition has to be served with the summons. This Rules is in consonance with this Court's judgment which was rendered prior to the coming into force of the Rules.

(3.) KEEPING the aforesaid law laid down by this Court in view, I proceed to examine the facts of the present case. On 10.6.1981, an ejectment petition was filed against two brothers, who are alleged to be tenants of the shop in dispute. On 14.7.1981, the process server presented summons to them which they refused to accept. The report of the process server shows that both the tenants refused the service for want of copies of ejectment petition which were not annexed with the summons. The first date of hearing was 5.8.1981. On that date, Amrik Singh tenant appeared but Trilok Singh tenant did not appear and he was ordered to be proceeded ex parte. Thereafter, the case concluded on the contest between the landlord and Amrik Singh tenant and when the case was posted for arguments Tirlok Singh tenant filed an application for setting aside the ex parte proceedings. As found by the Court below, Tirlok Singh tenant was not served with a copy of the ejectment petition. It is true that copy of the ejectment petition was not supplied to the other tenant also but since he appeared in Court and took part in the proceedings without raising any objection, the matter no longer subsit for consideration. However, Tirlok Singh has his independent right to contest the petition in accordance with law. Since he was not supplied with any copy of the ejectment petition, therefore, he was well within his rights to refuse the summons and as ruled by this Court, it would be no service and he can wait till he is properly served. The learned counsel for the landlord laid great stress on the fact that he had come to know of the ejectment proceedings and specially when his real brother appeared on the first date of hearing and contested the same for about ten months, therefore, it should be held that the application filed by Tirlok Singh was unduly delayed or was mala fide. As regards the finding of limitation given by the Rent Controller, the learned counsel for the landlord had to concede that a period of 30 days applies only under Article 123 of the Limitation Act, 1963, which is against ex parte decrees and not ex parte proceedings. In fact, there is no limitation provided for setting aside the parte proceedings, which depends upon the discretion of the Judge on the peculiar facts of each case. Therefore, the Rent Controller clearly fell in error in dismissing the application as time barred. However, the delay can be a relevant factor. On the peculiar facts of this case, once it is held that Tirlok Singh was not served in accordance with law and unless he is supplied with a copy of the ejectment petition along with the summons there is no due service, then he was well within his rights to stay at home till he was served in accordance with law. If that is so, the question of delay would not arise because he could come under Order 9, Rule 3 of the Code of Civil Procedure even after ex parte ejectment order has been passed. The cases, which have been noticed above, show that ex parte orders were set aside merely on the ground that the tenant was not served with a copy of the ejectment petition. In this view of the matter, the mala fide intention of the tenant as suggested by the counsel for the landlord, would also not arise for consideration.