Civil Revision No. 5016 of 2005 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 5016 of 2005 Date of Decision: 19.11.2008 Major S.S.Rana …Petitioner Versus Ajit Singh ... Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Sumeet Mahajan, Senior Advocate with Mr. Sham Lal Bhalla, Advocate for the petitioner. Mr. Kanwaljit Singh, Senior Advocate with Mr. G.S.Ghuman, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been filed against the impugned order dated 6.7.1995 whereby the order of ex parte dated 2.5.1994 was set aside. The revision petition was filed in this Court in the year 2005. Mr. Kanwaljit Singh, Senior Advocate, appearing along with Mr. V. Taneja, Advocate, on behalf of the respondent, has stated that during the pendency of present revision petition, entire evidence of landlord and the tenant was recorded. Thereafter, learned Rent Controller had pronounced the judgment on merits of the case. An Civil Revision No. 5016 of 2005 2 appeal was filed against the same by the landlord. The appeal has been decided and the matter was again remitted back to learned Rent Controller. In this context, Mr. Kanwaljit Singh submitted that before learned Rent Controller, entire evidence has been led by the parties. The present revision petition has virtually lost its stings. Mr. Mahajan insists, this Court must go into the root of the matter and return the findings. He states, even in the changed circumstances, this Court must adjudicate. He states setting aside of the ex-parte order, later recording of evidence, pronouncement of judgment, filing of appeal, Appellate Authority remanding the matter to the Rent Controller may have changed the circumstances but could not decide the legal issue. Therefore, in this context, I proceed to decide the present revision petition. Landlord had filed eviction petition against the tenant on 3.9.1993. Notice was issued. Process Server was handed over the summons (Annexure P5). On the summons it was noticed that the case is fixed for 19.11.1993. Karamjit Singh, Process Server, submitted a report Ex.PW2/A on 14.10.1993 that he went to deliver the summons and the landlord was found present there. The Process Server asked the landlord to accept the summons. On refusal, tenant was told that the case was fixed for 10.11.1993. On 24.12.1994, tenant filed an application Ex.P2 in the Court of learned Rent Controller praying that ex- parte order be set aside. Mr. Mahajan has brought to my notice para 2(a) of the application, which reads as under:- “2(a) That no process server ever visited the Civil Revision No. 5016 of 2005 3 applicant/J.D. to effect his service of the summons at any stage”. A reply was filed by the landlord to the application for setting aside the ex parte order and in the reply para 2(a) reads as under:- “2(a) This is incorrect that no process server ever visited the applicant/JD to effect service in this case. The reports made by the process serving officials are on the judicial file. These reports speak for themselves. These reports are correct. The plea raised is baseless”. After the pleadings to the application for setting aside ex parte order is concluded, issues were drawn by learned Rent Controller:- 1. Whether the ex parte decree dated 2.5.1994 is liable to be set aside? OPA 2. Relief. Ajit Singh, tenant, appeared as PW.1. He stated in his evidence that no summons were received by him. No registered letter came to him. No munadi or publication was done. He never refused any letter. Therefore, the order dated 2.5.1994 be set aside. He also examined Karamjit Singh as PW.2. His testimony is attached with the revision petition as Annexure P4 and the same reads as under:- “RW-2 Shri Karamjit Singh, Process Server, Office of Civil Judge (Senior Division), Ludhiana, on S.A. I had taken the summons in the case titled Major S.S. Rana Versus Ajit Singh. The summons were in the name of Ajit Singh. This summons were Civil Revision No. 5016 of 2005 4 taken to the spot of demised premises. The aforesaid premises is situated at Industrial Area-B. My report on the aforesaid summons is Ex.PW-2/A. The aforesaid report is in my hand. I had told the name of the Court, data, month and year. This case was pending in the Court of Shri Dharam Singh, Rent Controller which was fixed for 10.11.1993. I had told Sardar Ajit Singh the date of 10.11.1993. I did not tell any other date except 10.11.1993 and had told him to appear in the Court on the said date. Ajit Singh refused to accept the summons. XXX XXXX by respondent. I made correct report by visiting the spot at the spot as per the existing circumstances”. Mr. Mahajan has stated that there has been misreading of the evidence by learned Rent Controller. In the application is has been stated by landlord that no summons were received by him whereas Process Server has stated that he went there and served the summons in which it was stated that the date fixed is 10.11.1993 and Process Server has categorically stated that the tenant has refused the service. This argument is liable to be rejected. Perusal of the order shows that due credence ought to have been given to the testimony of Ajit Singh, PW.1, which aspire confidence. It was a compulsion for the Process Server to state in terms of the report. Therefore, he could not wriggle out of the same. A valuable property in the industrial town of Ludhiana is on the rent at the Civil Revision No. 5016 of 2005 5 rate of Rs.700/- per month. The tenant, in these situations, will be vigilant to safeguard his interest. Therefore, no reliance can be placed upon the testimony of Process Server and admittedly he has submitted Annexure P5, a manipulated report. Learned Rent Controller has rightly taken a view that since the date was 19.11.1993, therefore, the Process Server stating that date fixed is 10.11.1993 revealed to the tenant cannot be relied upon. The conduct of the Process Server is unnatural, improbable and unconvincing. Therefore, order setting aside the ex parte order dated 2.5.1994 is upheld. It has been stated by Mr. Mahajan that in the present case, ex parte order was passed on 2.5.1994. He has further stated that in pursuance of the ex parte order, execution proceedings were initiated and munadi was conducted on 15.11.1994 and the application was filed on 24.12.1994. Therefore, it is after about 38 days application was filed and there is a delay of eight days, as strictly, application should have been filed within 30 days from the date of knowledge. Mr. Mahajan has canvassed that if the knowledge is to be construed, it should be from the date of decree, once it was found that there is service effected upon tenant, necessarily it should not be construed from the date of munadi. This argument cannot be accepted in view of the fact that no reliance can be placed on the report of Process Server, same being manipulated by the landlord. Even otherwise, this Court in Darshan Lal v. Jaswant Singh (Civil Revision No. 3531 (O&M) decided on 17.10.2008) relying upon various judgments of this Court held that the Code of Civil Procedure in entirety with all vigour and strength do not apply to the Court of learned Rent Civil Revision No. 5016 of 2005 6 Controller. Therefore, ex parte order is not barred by limitation. It has been held therein that though inordinate delay and laches can be taken into consideration but not a ground of limitation. The view taken is reproduced hereunder:- “The view taken in Inderjit Pal’s case (supra) has also been reiterated in ‘Brij Mohan Aggarwal v. Laxmi Narayan @ Lachhu’, 2001 (1) RCR (Rent) 128 and it was held as under: “5. A Division Bench of Delhi High Court in the case of Shri Subhash Chander v. Shri Rehmat Ullah, 1972 Rent Control Reporter 1977 was concerned with relevant provisions of Delhi Rent Control Act, 1958. Under the provisions of Delhi Rent Control Act, the Court of the Controller is not for all practicable purposes a Court nor the Code of Civil Procedure in entirety applies with all vigour and strength. It was held that keeping in view this fact, the provisions of Indian Limitation Act would also not be attracted. Same view prevailed with this Court in the case of Inderjit Pal v. Shankar, 1985(1) Rent Control Reporter 508 and it was held :- "It is now well settled that the Rent Controller is not a court. He is an officer persona designata, specially authorised to adjudicate upon disputes relating to urban property concerning ejectment and determination of fair rent of urban Civil Revision No. 5016 of 2005 7 properties. The provisions of Limitation Act are not applicable to the proceedings before the Rent Controller exercising jurisdiction under the Act. The provisions of the Act are substantially the same as the provisions of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Punjab Act)". 6. That being the position in law, the Controller could not have dismissed the petition on the ground of limitation but was competent to consider if there is inordinate delay and laches.” As stated that learned Rent Controller had concluded the matter and the appeal was filed, therefore, learned counsel for respondent has placed on record the photocopy of the order passed by learned Appellate Authority. During the pendency, much water has flown. The parties have led their evidence. The concluding portion of the order passed by learned Appellant Authority on 22.2.2008, reads as under: “10. In the light of my above discussion, the appeal is accepted and the case is remanded back to the Ld. Rent Controller for freshly assessing the due rent after taking into account the house tax as per the rent deed Ex.AW1.4. In view of the peculiar circumstances of the case, the parties are left to bear their own costs. Counsel fee is assessed at Rs.1000/-. Memo of costs be prepared. The parties Civil Revision No. 5016 of 2005 8 through their counsel are directed to appear before the Ld. Lower Court on 28.3.08. Lower Court file be returned immediately while the appeal file be consigned to the records”. Even otherwise, I am of the view that balance of equity and fair play demand that proceedings between the parties should be decided on merits. I find no merit in the present revision petition and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 19, 2008 “DK”