RSA No.3316 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3316 of 2009 Date of Decision: 23.07.2010. Jatinderpal Singh .……Appellant Versus Jagdeep Singh ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. S.D. Sharma, Sr. Advocate with Mr. Anupam Sharma, Advocate for the appellant. Mr. Vivek Singla, Advocate for the respondent. L. N. MITTAL, J (ORAL) This is second appeal by defendant-Jatinderpal Singh, who has been unsuccessful in both the Courts below. Respondent-Jagdeep Singh was tenant in the disputed shop under the defendant-appellant. Defendant filed ejectment petition on 02.02.1999 under the Rent Control Act against the plaintiff-respondent before the Rent Controller. Ex parte ejectment order dated 02.08.1999 was passed in the said ejectment petition. Pursuant thereto, defendant obtained possession of the disputed shop on 28.01.2000 by executing the ejectment order. The plaintiff moved application for setting aside ex parte ejectment order dated 02.08.1999. The said application was allowed by the Rent Controller vide order dated 22.04.2002 and accordingly ex parte ejectment order dated 02.08.1999 was set aside. Subsequently, said ejectment petition was dismissed by the Rent Controller vide order dated RSA No.3316 of 2009 -2- 07.08.2003. Since the plaintiff was dispossessed on 28.01.2000 in execution of ex parte ejectment order, the plaintiff filed instant suit on 29.05.2000 for possession of the disputed shop. The defendant resisted the suit, although factual position noticed hereinbefore could not be controverted. Learned Additional Civil Judge (Senior Division), Ropar vide judgment and decree dated 09.05.2008 decreed the plaintiff's suit. Learned District Judge, Rupnagar vide judgment and decree dated 03.06.2009, dismissed the first appeal preferred by the defendant against judgment and decree of the trial Court. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. There appears to be some confusion in the judgment of the trial Court regarding the date on which the plaintiff was dispossessed in execution of the ex parte ejectment order. The trial Court has observed that the plaintiff was dispossessed on 28.02.1999. This observation is factually incorrect because even ex parte ejectment order, in execution whereof the plaintiff was dispossessed, was passed on 02.08.1999 and, therefore, the plaintiff could not have been dispossessed on 28.02.1999 i.e even before the passing of the ejectment order. On the other hand, the plaintiff in the plaint pleaded that bailiff came to the disputed shop on 28.01.2000 with warrant of possession in execution of the ex parte ejectment order. Even defendant while appearing in the witness-box stated in his affidavit of examination-in-chief itself that possession of the RSA No.3316 of 2009 -3- disputed shop was delivered to him on 28.01.2000 in execution of the ex parte ejectment order. It is thus apparent that the plaintiff was dispossessed from the disputed shop on 28.01.2000 in execution of the ex parte ejectment order which was later on set aside. The instant suit was filed on 29.05.2000 i.e just four months after the plaintiff was dispossessed and so the suit was filed within limitation period of six months required under Section 6 of the Specific Relief Act, 1963. Learned counsel for the appellant vehemently contended that application moved by plaintiff under Section 144 of the Code of Civil Procedure (in short, C.P.C) for restoration of the possession was dismissed by Rent Controller and in view thereof, instant suit for possession is not maintainable. The contention cannot be accepted. There is neither any pleading nor any evidence on record to substantiate the aforesaid contention. There is no pleading or evidence on record to depict that the plaintiff had moved application under Section 144 C.P.C before the Rent Controller for restoration of possession. On the contrary, the defendant while appearing in the witness-box stated specifically in the affidavit of examination-in-chief itself that the plaintiff did not make use of Section 144 C.P.C for restoration of possession. It is thus apparent that no application for restoration of possession was filed under Section 144 C.P.C by the plaintiff. Consequently, the aforesaid contention cannot be accepted. As noticed hereinabove, it is not disputed that the defendant took possession in execution of the ex parte ejectment order dated 02.08.1999 which was, however, set aside vide order dated 22.04.2002 and thereafter the ejectment petition itself was RSA No.3316 of 2009 -4- dismissed on 07.08.2003. Consequently, plaintiff became entitled to take back possession of the disputed shop from the defendant because the ejectment order in execution whereof the defendant had taken possession of the disputed shop is no longer in existence and the ejectment petition filed by the defendant already stands dismissed. Resultantly, the plaintiff is entitled to take back possession of the disputed shop as tenant. Defendant has no right to retain possession of the disputed shop. On the other hand, plaintiff being tenant in the disputed shop is entitled to take back possession thereof. It may be added that ex parte ejectment order was set aside vide order dated 22.04.2002 by observing that the summons in the ejectment petition had not been signed by the plaintiff herein. Consequently, the ex parte ejectment order was vitiated for this reason as well and possession taken in execution of the ex parte ejectment order cannot be perpetuated by the defendant, particularly when the ejectment order itself has been set aside and the ejectment petition has also since been dismissed. For the reasons recorded hereinabove, I find no merit in the instant second appeal. The plaintiff has been wrongly deprived of the possession of the disputed shop for 10 ½ years. It is time for the defendant to gracefully surrender possession thereof immediately in favour of the plaintiff. The defendant has already derived undue benefit by retaining possession over the disputed shop for 10 ½ years. Even after setting aside of ex parte ejectment order on 22.04.2002 and even after dismissal of ejectment petition on 07.08.2003 i.e. almost 7 years ago, defendant has retained the RSA No.3316 of 2009 -5- possession unlawfully and without any right. The poor tenant i.e plaintiff-respondent has been deprived of the possession for such a long period in wrongful manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed. ( L. N. MITTAL ) JUDGE 23.07.2010. A. Kaundal