Civil Revision No.3998 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3998 of 2011 (O&M) Date of decision 8.7.2011. Baldev Raj Sharma ...... Petitioner. versus Damini Sharma and another ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Ashish Aggarwal, Advocate for the petitioner. Mr. V.S.Bhardwaj, Advocate for the respondents-Caveators. K.C.PURI . J. Baldev Raj Sharma son of Thakur Dass has filed the petition under Section 13(3)(i)(a) of Haryana Urban (Control of Rent & Eviction), Act, 1973 ( in short – the Act ) against Harish Sharma, his son and Damini Sharma his daughter-in-law. 2. It is pleaded by Baldev Raj Sharma that he is 77 years old. He claimed to have given the house in question on rent to his son Harish Sharma at the rate of Rs.7000/-per month in the month of April 2005 and the terms and conditions of the tenancy has been reduced into writing vide rent agreement dated 20.4.2005. However, it had been settled mutually between the parties that respondent No.1 would get transferred from Chandigarh and will hand over the vacant possession to the petitioner. However, the respondent continued to pay the rent up January 2010 but Civil Revision No.3998 of 2011 2 failed to make the payment thereafter. Hence respondents were in arrears of rent w.e.f. 1.2.2010 onwards and as such the present rent petition had been preferred on the grounds of non-payment of arrears of rent as well as personal necessity. 3. Respondent No.1-Harish Sharma admitted the relationship of landlord and tenant. He further admitted to have paid the rent up to January 2010 and not thereafter. It is pleaded that due to strain relationship between him and his wife i.e. Damini Sharma, he had to move to Bathinda. So, at present respondent No.2 was only residing in the tenanted premises. He further pleaded that divorce case was pending adjudication between the respondents and they are not sharing cordial relations. 4. Respondent No.1 was directed to pay the arrears of assessed rent on 3.1.2011. However, the respondent No.1 failed to appear and preferred to proceed against ex-parte. Thereafter, on 7.1.2011 respondent No.1 vide his application got the order dated 3.1.2011 set aside and he was granted time to pay the amount of provisional rent but he failed to pay the rent. Consequently, the eviction order was passed. 5. It is, however, pointed out that Damini Sharma was proceeded ex-parte in the said proceeding of eviction. 6. Damini Sharma preferred appeal before the District Judge, Panchkula, who exercising the powers of Appellate Authority under the Rent Control Act, set aside the order dated 8.1.2011 and remanded the case back to trial Court for fresh decision after giving an opportunity to the appellant to contest the same. The parties were ordered to appear before trial Court on 16.7.2011. It is also observed by the Appellate Court that in case Civil Revision No.3998 of 2011 3 Damini Sharma has been evicted from the suit property in pursuance to order dated 8.1.2011, she will be put in possession within one month from the passing of the judgment. 7. The said judgment dated 7.6.2011 passed by Shri Subhash Mehla, Additional District Judge, Panchkula has been challenged in the present revision petition. 8. The learned counsel for the appellant has submitted that Damini Sharma was proceeded ex-parte and against the ex-parte order of eviction, she could file an application under Order 9 Rule 13 CPC. The fact that respondent-tenant has not been served cannot be agitated in the appeal in view of authorities Bhanu Kumar Jain vs. Archana Kumar & Anr. 2005 (2)RCR(Civil) 781 and Smt.Maya Devi and others vs Mehria Gram Dall Mill, Balsamand Road, Hissar and others reported in 1987 PLR -647. 9. I have carefully considered the said argument but the same does not cut ice before me. 10. No doubt, the tenant/respondents can take re-course simultaneously by filing an application under Order 9 Rule 13 CPC and by appeal but decree can be challenged on the following grounds :- (i)There were no sufficient material brought on the record by the petitioner for passing a decree ; and (ii) when the suit was not otherwise maintainable and the Court is lacking jurisdiction, as per ruling relied upon by the counsel for the appellants. 11. However, the Court cannot shut eyes on fact that Damini Sharma has not been served in the eviction petition. Civil Revision No.3998 of 2011 4 12. So far as Dimini Sharma is concerned, she has not been served. Even according to the zimini orders placed by the revisionist on the file, the petition was received on 10.6.2010 and notice of the petition was ordered to be given to the respondent for 12.6.2010 on filing the process fee, RC, copies of petition and documents etc. As per zimini orders reproduced in the grounds of appeal, respondent No.1 Harish Sharma appeared before the Rent Controller on 12.6.2010. It is mentioned that notice issued to respondent No.2 received back with the report of refusal by his father and case was adjourned to service of respondent No.2 Dimini Sharma for 12.8.2010 through registered cover AD etc. The zimini order of proceeding ex-parte on 12.8.2010 is relevant and is reproduced as under :- “Present :- Shri : Ajay Verma, Proxy counsel for the petitioner. Shri Sandeep Sharma and Shri V.K.Verma, counsel for respondent No.1. Notice issued to respondent No.2 vide registered post received back undelivered with a notice of the postman as “ND” i.e. Notice delivered to the addressee on 21.7.2010. Meaning thereby, the postman had given due notice of the letter to the addressee Smt.Damini Sharma, respondent No.2 but she failed to collect it from the post office. Therefore, it is hereby deemed to be proper service of registered letter upon respondent No.2 and she is avoiding the service of notice upon her despite the fact that she is well aware of the petition pending against her. It is already 12.25PM and none has appeared on behalf of respondent No.2 Smt. Damini, therefore, she is hereby Civil Revision No.3998 of 2011 5 proceeded against exparte. Reply to the petition not filed by respondent No.2. He is directed to file the same subject to last opportunity on 7.9.2010. Sd/- (Jyoti Birbian) RC, Pkl 12.8.2010” 13. The Rent Controller has drawn wrong conclusion from the endorsement of postman as “ND” as notice delivered to the addressee. The order is itself contradictory on the one hand it is mentioned that registered cover received undelivered, on the other hand, it is mentioned that it contained endorsement ND drawing the presumption notice delivered. In case the notice would have been delivered in that case, the registered cover would not have been received undelivered. It is mentioned in the order that postman had given due notice of the letter to the addressee Smt. Dimini Sharma but she failed to collect it from the post office. There is nothing on the file on what basis the said presumption has been drawn. The presumption of service of notice can only be drawn if the registered cover is sent at the correct address and that is not received back in spite of lapse of 30 days. In the present case, the notice was received undelivered. The Rent Controller has wrongly presumed that notice stood delivered. The abbreviation of “ND” which could possible be that “not delivered”. It is highly unsafe to proceed ex-parte on the basis of the said report, moreso, when the letter has been received undelivered. 14. From the other circumstances, it creates doubt in the version of Civil Revision No.3998 of 2011 6 the landlord. Admittedly, Harish Sharma is the son of Baldev Raj Sharma petitioner and Damini Sharma is wife of Harish Sharma i.e. daughter-in-law of Baldev Raj Sharma. Harish Sharma admittedly was the owner of ½ of the properties and he is stated to have executed the gift deed in favour of his own father in respect of that share. Thereafter he executed rent note in favour of his father. It is not disputed that there is matrimonial discard between Harish Sharma and Damini Sharma and in order to create hurdle for Damini Sharma, the above said transaction seems to have been made. 15. Learned counsel for the appellant has further submitted that before learned Additional District Judge, (Appellate Authority ) under the Haryana Urban (Control of Rent & Eviction), Act, 1973, Harish Sharma was the tenant and Damini Sharma was not the tenant and on that account her appeal was not competent. 16. To rebut that argument, counsel for the respondent has submitted that Baldev Raj Sharma has himself arrayed the respondent as party in the petition. It was the matrimonial house of Damini Sharma. It is further submitted that father and son connived together and get the collusive eviction order. It is further submitted that petitioner/appellant and his son Harish Sharma have thrown away the luggage of respondent Damini Sharma out of the house along with the minor as well as appellant and their fraud cannot be upheld by the Court. 17. I have carefully considered the submissions made by both the parties. 18. It is settled law that nobody should be condemned unheard. Civil Revision No.3998 of 2011 7 Damini Sharma has been arrayed on the basis of nonpayment of rent. Whether in the presence of gift deed, Baldev Raj Sharma has any legal right in the property can only be decided during the course of trial? Whether relationship of landlord and tenant exists is also to be decided during the course of trial but it is unheard that a person can be evicted from the property without any due service upon him/her. 19. The other limb of argument advanced by the counsel for the appellant is that main ground for setting aside the order of Rent Controller was in respect of proceedings under Sections 18, 19, 20, 21 and 22 of the Domestic Violence Act, 2005. In this regard, it is submitted that as per annexures P-6 and P-7, Damini Sharma and the children have been provided with one Flat No.5364 FF consisting of two bed rooms and drawing room. So, that ground is not available. Counsel for Damini Sharma has disputed the factum of handing over possession to her. However, that arguments are without any substance. 20. No doubt, the Appellate Court has considered that aspect also but the fact remains that Damini Sharma has been evicted from the premises without any notice. After surrendering the possession of the demised premises, Harish Sharma may apply to the Judicial Magistrate Ist Class to restore him the possession of Flat mentioned above, in case Damini Sharma is found in possession of the same. 21. No other point has been urged before me. 22. In view of the above discussion, the revision petition is without any merit and the same stands dismissed with costs. Civil Revision No.3998 of 2011 8 23. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 08, 2011 sv