C.R. No. 4230 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- C.R. No. 4230 of 2011 (O&M) Date of decision:- 22nd July, 2011 Kewal Singh ... Petitioner Versus Leelawati ... Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. Rakesh Nehra, Advocate, for the petitioner.. Rakesh Kumar Garg, J (oral) C. M. No. 16779 -CII of 2011 Allowed subject to all just exceptions. C. M. No. 16780-CII of 2011 For the reasons mentioned in the application, which is supported by an affidavit, delay of 6 days in filing the present petition is condoned. C.R. No. 4230 of 2011 (O&M) The petitioner, who is a tenant in the demised premises, has approached this Court challenging the order dated 14.8.2010 passed by Rent Controller, Rohtak, whereby the ex-parte decree of eviction was passed against him and further an order dated 28.2.2011 passed by the appellate Court, dismissing his appeal. Briefly stated, the respondent-landlord filed an eviction petition against the petitioner on the ground of non-payment of rent, change of user and personal necessity. Despite service, petitioner did not appear before the C.R. No. 4230 of 2011 (O&M) -2- Rent Controller and was proceeded against ex-parte vide order dated 10.5.2006. Subsequently, an application for setting aside the ex-parte order was moved on behalf of the petitioner. However, the petitioner did not appear to contest the said application and was again proceeded against ex- parte. Thereafter, respondent-landlord lead ex-parte evidence and on the basis of the aforesaid evidence the ejectment of the petitioner was ordered, holding that there existed a relationship of landlord and tenant between the parties. The grounds of ejectment as raised by the respondent-landlord i.e non-payment of rent, personal necessity and change of user remained uncontroverted and keeping in view evidence on record, which is sufficient to draw a presumption against the petitioner, he was directed to vacate the demised premises. The aforesaid order of the Rent Controller was challenged by the petitioner before the appellate authority. While dismissing the appeal the appellate authority observed as under:- "10. Though the appellant has challenged ex parte eviction order in this appeal but his entire emphasis is on the aspect that he was wrongly proceeded against ex parte on 10.5.2006 by the learned Rent Controller. Admittedly, no remedy has been availed by the appellant to get the said ex parte order set aside. The record reveals that even otherwise aforesaid contention raised for the appellant is contrary to the record. On 10.5.2006, the appellant was proceeded against ex parte and case was fixed for ex parte evidence of the petitioner/landlady. On 23.5.2008, an C.R. No. 4230 of 2011 (O&M) -3- application for setting aside ex parte order dated 10.5.2006 was filed by the appellant. The perusal of said application reveals that it was mentioned by the appellant that he did not receive any court notice or summon and he was wrongly proceeded against ex parte on 10.5.2006 on the basis of report of Ruhposh. Nothing has been mentioned in the said application that the counsel engaged by the appellant did not appear on 10.5.2006 (the plea raised now). Now only that record further reveals that the aforesaid application for setting aside ex parte order could not be adjudicated as on 21.1.2010 again nobody appeared for the appellant/tenant and as such, he was proceeded against ex parte. No effort has been amde by the appellant to get set aside ex parte orders passed against him by the learened Rent Controller. Even otherwise, appellant has not disclosed the fact that his application for setting aside the initial ex parte order also could not be decided due to his subsequent absence. In the circumstances, the contention raised for the appellant that he was wrongly proceeded against ex parte on 10.5.2006 by learned Rent Controller is devoid of merit and is of no help for him in appeal. 11.Now as far as the challenge of impugned order on merit vide present appeal is concerned there is no material on record to support the plea of the appellant that said order is bad. In order to rebut the pleading and ex parte evidence of the petitioner/landlady, there is no material produced by the C.R. No. 4230 of 2011 (O&M) -4- appellant/tenant. The pleadings and evidence of the petitioner/landlady have remained unchallenged as appellant did not contest the petition despite knowledge. On the strength of evidence of her son Rakesh Kumar PW1 petitioner/landlady has duly proved the grounds taken in the eviction petition. Said witness being son and General Power of Attorney has deposed that respondent/tenant was in arrears of rent, value and utility of the property has been imparied by installing lathe machine whereas rented premises was given on rent to run garage for auto parts, respondent/tenant has changed the use of demised premises from auto parts to turner without any oral or written consent of the petitioner and garage/rented premises has become unfit and unsafe. The evidence of said witness being son of landlady is trustworthy. The entire pleadings and evidence of the petitioner has remained unrebutted and uncontroverted, in the absence of any challenge to the same, the case of the petitioner/landlady stands duly proved. 12. Resultantly, no interference is warranted in the findings so recorded by the learned Rent Controller and the appeal stands dismissed with costs. Memo of cost be prepared accordingly. Lower Court record with one copy of this judgment be sent back and appeal file be consigned to the record room after due compliance." It is not in dispute that the order dated 10.5.2006, whereby the petitioner was proceeded against ex parte was never set aside. Even the C.R. No. 4230 of 2011 (O&M) -5- petitioner failed to challenge the subsequent order whereby he was again proceeded against ex-parte. From the record it is also proved that the respondent-landlord has led ex-parte evidence to support the averments made in the petition and the aforesaid averments and the evidence led by the respondent remained uncontroverted. Thus no fault can be found with the order of eviction passed by the Rent Controller. Even while dismissing the appeal the appellate authority has observed that there is no material on record warranting any interference for setting aside the ex-parte order. Learned counsel for the petitioner has made sternous efforts before this Court to challenge the impugned orders by referring to the orders passed by the Rent Controller in subsequent rent petitions regarding the payment of rent tendered by the petitioner, even for the period in question in this petition and has submitted that in view of the uncontroverted evidence that the respondent-landlord has accepted the payment of rent for the period in question also, the impugned orders are liable to be set aside as the grounds of non-payment of rent was not available to the respondent- landlord. Be that as it may, it hardly matters if the ground of non-payment of Rent is not available to the landlord because the petitioner has also been evicted on the ground of personal necessity as well as change of user. The aforesaid findings could not be challenged successfully by the petitioner before this Court in any manner. Dismissed. July 22nd, 2011 (Rakesh Kumar Garg) tripti Judge