BALDEV SINGH Vs. JIWAN KUMAR PATHAK

JUDGEMENT

(1.) THIS is tenant's petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity 'the Act') challenging concurrent findings of facts recorded by both the courts below upholding the ex parte order of ejectment passed against him. The Rent Controller had passed ex parte order of ejectment dated 3.11.1998. Thereafter, the tenant -petitioner filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') which has been dismissed by the Rent Controller vide its order dated 20.8.2002 which has been upheld by the Appellate Authority vide its order dated 13.1.2003. It has been held by both the Courts that the tenant -petitioner was served with the summons on 8.8.1997 for appearance in the court on 23.8.1997 along with a copy of the ejectment petition. The appellate authority in para 10 of its order has categorically observed as under : -

(2.) MR . Vipul Aggarwal, learned counsel for the petitioner has argued that as a matter of fact, a copy of the ejectment petition along with summons was never served on the tenant -petitioner and his rights were seriously prejudiced. According to the learned counsel, non -furnishing of a copy of the ejectment petition constitutes sufficient ground for the tenant -petitioner not to appear before the Rent Controller on 23.8.1997. Therefore, the ex parte order dated 3.11.1998 ordering his ejectment is liable to be set aside. Mr. Aggarwal has further placed reliance on Division Bench judgment of this Court in the case of Jagat Ram v. Shanti Sarup, 1965 PLR 45 to argue that within the meaning of Section 13(2)(i) of the Act, no service can be considered to be the due service unless a copy of the ejectment petition has been sent along with summons. The learned counsel has also argued that according to the judgment of Supreme Court in Rakesh Wadhawan v. M/s Jagdamba Industrial Corporation, 2002(1) RCR 514, the tenant is required to be granted an opportunity for depositing the rent and the tenant -petitioner is even today prepared to deposit the rent.

(3.) MR . R.K. Joshi, learned counsel for the landlord -respondent has argued that firstly there are concurrent findings of facts to the effect that the copy of the plaint was supplied to the tenant -petitioner and it does not lie in his mouth to deny the receipt of copy of the ejectment petition. Learned counsel has relied upon the summons duly signed by Baldev Singh tenant - petitioner in token of receipt of copy or ejectment petition. The summon shows an endorsement stating that the tenant -petitioner had received a copy of the ejectment petition and the endorsement is duly signed by him. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Dev Karan v. Bhagwan Das, 1991(2) RRR 303 (P&H) : 1991(1) PLR 206, and argued that in accordance with proviso to Rule 13 Order 9, non -furnishing of copy of the petition in any case is a mere irregularity, which would not warrant setting aside the ex parte order.