CR No.303 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh. CR No.303 of 2010 (O&M) Decided on 02.5.2011. Balraj Singh @ Dayal Singh -- Petitioner vs. Pritam Singh --Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. Harsh Aggarwal, Advocate,for the petitioner Mr.K.S.Sidhu,Advocate,for the respondent Rakesh Kumar Jain, J, (Oral) This revision petition is directed against the orders of both the Courts below by which the petitioner has been ordered to be evicted from the demised premises on a petition filed by the landlord under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short,'the Act'), inter-alia, on the grounds of non-payment of rent and personal necessity. After notice, the tenant did not appear before the Rent Controller and was proceeded against ex-parte on 17.5.2004. By that time, the landlord had examined PW-1. Thereafter, the tenant filed an CR No.303 of 2010 (O&M) 2 application for setting aside the ex-parte proceedings which was dismissed by the Rent Controller on 18.8.2005 with the following order:- “Accordingly, the application is dismissed. However, it is ordered that despite restricting his right to file the written statement, he can join the proceedings at this stage and cross examine the witnesses appearing on behalf of the petitioner so that substantial justice may be delivered”. As per zimni orders available on record, the tenant had cross examined one witness of the landlord on 21.9.2006:- “File received. One PW cross examined. Petitioner cleared his evidence. Summoned file be sent back to record room. To come up on 9.10.2006 for consideration”. It was alleged by the learned counsel for the petitioner that an application was filed for summoning Pritam Singh son of Chuhar Singh for cross examination and the application was listed on 22.9.2006 on which date following order was passed:- “File taken up today on the basis of the application moved. The respondent wants file mentioned in the application to be summoned so that documents may be put for cross examination to witness. Said file is ordered to be summoned for the date fixed i.e 9.10.2006 from the record room”. Thereafter, the Rent Controller passed the following order on 15.2.2007 which reads as under:- “At the time of hearing remaining argument on the main petition, the learned counsel for the respondent has drawn the intention of this Court towards the application moved on 14.9.2006 for summoning the file mentioned in the application. I have found that the application is pending. On the contrary counsel for the petitioner has submitted that since vide order dated 4.12.2006, this Court has held that the CR No.303 of 2010 (O&M) 3 respondent has no right to lead any evidence the file can be summoned. After hearing the learned counsel for the parties, this Court is of the considered view that since right to lead evidence has been taken away, this application automatically become infructuous. Hence, the application is dismissed. Arguments heard on merits. To come up for orders after lunch”. Thereafter, the Rent Controller passed the eviction order on that date i.e 15.2.2007 which was assailed by the tenant by way of statutory appeal before the learned Appellate Authority but remained unsuccessful as the appeal was dismissed on 4.8.2009. The only argument raised by the learned counsel for the petitioner is that the application filed by the petitioner on 21.9.2006 was taken up on 22.9.2006, but the same remained undecided, therefore, there is a patent error of jurisdiction on the part of the Rent Controller which is required to be rectified. I have heard learned counsel for the petitioner and perused the record available on the file. Resume of facts which have been given are not much in dispute except for the fact that the learned counsel for the petitioner has submitted that the application which was decided on 14.9.2006 was a separate application and not the application dated 21.9.2006. The learned counsel, however, very candidly admitted that the plea that the application dated 21.9.2006 was not decided by the Rent controller, was not raised before the learned Appellate Authority. He has admitted that the said application, though remained pending, was not further pressed. The question now arises as to ''whether the application CR No.303 of 2010 (O&M) 4 which is not even brought to the notice of the learned Appellate Authority, can be pressed before this Court?'' Keeping in view the decision of this Court passed in C.M.No.9305-CII of 2010 in Civil Revision No. 6956 of 2009 titled as State of Punjab and another Vs. Rajinder Jain and another, decided on 04.3.2011 and taking into consideration the submission made, I am of the view that the said application cannot be now pressed in view the fact that it was not argued before the Appellate Authority and is deemed to have been declined. Hence, this revision petition is dismissed. No costs. 02.5.2011 (Rakesh Kumar Jain) RR Judge