IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1831 of 1992 Date of decision:18.05.2009 Sewa Ram ...Petitioner versus Rajinder Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. H.N.Mehtani, Advocate for the petitioner. ----- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? K.Kannan, J.(Oral) 1. The revision is against the order dismissing a petition for setting aside an ex parte order of eviction passed against a tenant on 03.08.1988. The tenant claimed that he had knowledge of the ex parte order on 02.11.1988 and filed a petition on 04.11.1988. 2. The objections in the petition were two-fold, that contention that the tenant did not know about the date of hearing was false and that the petition itself was not filed within the time permissible by law. Admittedly the ex parte eviction order was passed on 03.08.1988 and the petition filed on 04.11.1988 was seemingly beyond time. 3. Before the Rent Controller the tenant examined himself and also brought the evidence of the bailiff who stated that he had served the summons on a person called Sewa Ram and he had not Civil Revision No.1831 of 1992 - 2 - known him earlier. A particular person who signed as a witness in the summons was also not known to him. He conceded that the father's name of Sewa Ram had also not been referred to and the copy of the petition had not been served on him. 4. The Rent Controller dismissed the petition finding that the tenant did not take the courage to say that the signature found in the summons was not his and that further by a comparison of the signatures found in the summons with the signatures found in the petition, it was clear that it was signed only by Sewa Ram. If the copy of the petition could not be served, it was on account of the tenant's refusal and his hurry to go away to Vaishno Devi without receiving even the copy of the petition. After coming to the conclusion that the summons had been duly served, the Rent Controller found that the petition filed more than 30 days from the date when the ex parte order of eviction was made, was beyond time. 5. The Rent Controller, while dismissing the petition also had made observations against the tenant on the ground that the tenant was bound to prove the averments in the petition and consequently he should have proved that the signature found in the summons was not his by examination of an expert witness. 6. The matter is of the year 1992 and the case has stood this length of time for disposal of a mere application under Order 9 Rule 13. Even the respondent who has obtained the ex parte order of eviction is not before the Court to assist and the case is being heard and dispose of only in the presence of the learned counsel for the petitioner. Civil Revision No.1831 of 1992 - 3 - 7. The reasons for dismissing the petition that the signature found in the summons seemed to the same as the signatures in the petition was not justified. If the service of summons was denied, it was for the decree holder to establish the service and the burden is never on the person who denies the actual service. Even the bailiff was not examined on the side of the decree holder but the evidence was brought at the instance of the judgment debtor himself. The bailiff had obviously no reason to be acquainted with the judgment debtor and he had also conceded that he had not ascertained the father's name at the time of the service of summons. The witness to the summons was also not previously known to the bailiff and therefore the identity of the person who was alleged to have been served as that of the judgment debtor could not also be said to have been established. The order suffers also from another fundamental error that the tenant should have proved his signatures if the signatures had been denied. The same must have been proved only by the decree holder and the inference made by the Court below that since he had not examined the hand writing expert, it should be assumed that it contained the signatures of the tenant was clearly wrong. 8. The case could not be dealt with on mere conjecture and in the absence of definite proof of service of summons on the petitioner, opportunity ought to have been granted to the tenant to take up his plea in defence and go through the adjudication after full-fledged trial. The issue on limitation has an immediate bearing to whether the party contended that the summons was served or not. If the summons Civil Revision No.1831 of 1992 - 4 - was not shown to have been served personally, the starting point of the limitation was only the knowledge and not the date of order itself. The averment in the affidavit was that he had knowledge about the decree only on 02.11.1988 and having regard to my finding that the service of summons had not been proved, the period of limitation would have started only from the date when the judgment debtor stated that he had knowledge about the decree. The petition filed on 04.11.1988 was therefore within time. 9. The order dismissing the application is therefore erroneous and liable to be set aside and accordingly set aside. The Civil Revision is allowed. (K.KANNAN) JUDGE 18.05.2009 sanjeev