Civil Revision No. 277 of 2009 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 277 of 2009 (O & M) Date of decision:- 30.03.2009. Hardip Pal Singh ...Petitioner Versus Pt. Jagan Nath Hang Ghar Trust (Redg.) and others ...Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. D.S. Pheruman, Advocate for the petitioner. JASWANT SINGH J. C.M. No.6177-CII of 2009 Application is allowed and documents i.e. Annexures P-5 to P- 7 are taken on record. Civil Revision No.277 of 2009 Petitioner-Judgment Debtor No.1-Hardip Pal Singh has filed the present revision petition under Article 227 of the Constitution of India praying for quashing the order dated 9th of December, 2008 (Annexure P-4) whereby his application for setting aside the ex-parte order dated 26.9.2008, moved before the learned Executing Court has been dismissed. The facts of this case are that the contesting respondent- Pt. Jagan Nath Hang Ghar Trust filed an application under Section 13 of the East Punjab Rent Restriction Act, 1949 on 02.8.2001 seeking the eviction of Trilok Singh son of Ishar Singh, retired charge-man, from the premises of Civil Revision No. 277 of 2009 (O & M) -2- House No. ES 26 consisting of three rooms as described in the application, with a further prayer for directing Trilok Singh to hand over the actual and physical possession of the house. On the basis of the pleadings, the following issues were framed:- 1. Whether Pt. Jagannath Jang Ghar Trust is registered trust and Shri Ram Dass Sharma and Pt. Jagannath being President and Secretary of the Trust are authorized to file the present application? OPA 2. Whether respondent has not paid the rent to the applicant from 01.10.2002 and he is in arrears of rent since then? OPA 3. Whether applicant required the property in dispute for his own use and occupation? OPA 4. Whether the property in dispute is unfit and unsafe for human habitation and whole of the property including the demised premises is to be demolished and reconstructed as alleged in the application? OPA 5. Whether the application of the applicant is not maintainable? OPR 6. Whether applicant has no locus standi and cause of action to file the present application? OPR 7. Relief. During the pendency of the rent application, Trilok Singh expired and petitioner Hardip Pal Singh and respondent No.3-Surinder Pal Singh sons of Trilok Singh were impleaded as Legal Representatives of deceased Trilok Singh. On the basis of the evidence adduced, the following relief was granted by the learned Rent Controller vide its order dated 30.8.2006:- “In view of what has been discussed above and in view Civil Revision No. 277 of 2009 (O & M) -3- of the provisions contained in Section 13(4) of the Act and law laid down by the Hon'ble Court, and the undertaking given by the landlord, I allow the application and order ejectment of the respondents from the demised premises i.e. house No. ES-26 consisting of three rooms shown in red colour and delineated as ABCDEF in the site plan attached with the application, on ground floor, situated outside Mori Gate, Ferozepur City, bounded as East by property of the applicant, West by property of the applicant, North by street and South by MC Road, on the ground that the demised premises has since become unsafe and unfit for human habitation and grant 3 months time to the respondents to vacate the same and to deliver its possession to the applicant landlord. I also direct the landlord to reconstruct the building within 4 months from the date of taking possession from the respondents tenants and to restitute possession of one newly constructed shop measuring 17' x 13' towards Eastern side of the building in question. There is no order as to costs. Memo of costs be prepared accordingly and file be consigned to the records.” Petitioner-Hardip Pal Singh and respondent No.3 herein- Surinder Pal Singh being aggrieved and dissatisfied with the order dated 30.8.2006 passed by the learned Rent Controller, filed an appeal and the learned Appellate Authority vide its order 14.5.2007 upheld the order dated 30.8.2006. However, the period of three months allowed to the petitioner- Civil Revision No. 277 of 2009 (O & M) -4- tenant to deliver vacant possession of the demised premises was ordered to start from w.e.f. 14.5.2007. Both the brothers Hardip Pal Singh and Surinder Pal Singh still dissatisfied and aggrieved by the appellate order, filed civil revision No.3301 of 2007 before this Court and the same was dismissed by this Court vide order dated 06.7.2007 thereby upholding both the impugned orders in revisional jurisdiction of this Court. The Hon'ble High Court in revisional jurisdiction observed that the conditional order of ejectment passed by the Trial Court, appears to be in the nature of concession to the tenants. It is evident that despite concession granted by the Court, petitioner-Judgment Debtor No.1 and respondent No.3-Judgment Debtor No.2 did not hand over the physical possession of the demised premises and therefore respondents No.1 and 2-Decree Holders were constrained to file execution on 20.10.2007 on the basis of the order dated 30.8.2006 passed by learned Rent Controller. It appears that due to avoidance of service of summons of the execution proceedings, petitioner-Judgment Debtor No.1 was proceeded ex-parte vide order dated 26.9.2008 and for setting aside the same, he moved an application dated 31.10.1998 (Annexure P-3), which was dismissed vide the impugned order dated 09.12.2008. Hence, the present revision petition. Learned counsel for the petitioner-Judgment Debtor No.1 has argued that the impugned order dated 09.12.2008 is liable to be set aside as it has ignored the fact that service upon the petitioner through Munadi was ordered for 4th of August, 2008 on deposit of requisite charges vide orders dated 09.6.2008 and on 4.8.2008 the Presiding Officer of the Court was on leave and therefore, the learned Executing Court could not order ex-parte Civil Revision No. 277 of 2009 (O & M) -5- proceedings without ordering fresh service upon the petitioner-Judgment Debtor No.1 for a fresh date. After hearing the learned counsel for the petitioner and perusing the impugned orders as well as the other orders placed on record, I find no merit in the submission of the learned counsel for the petitioner. Before proceeding further, it is appropriate to reproduce the order dated 26.9.2008, which is reads as under:- “Present:- Counsel for D.H. As per report of Ahlmad munadi issued against the J.D. No.1 received back duly executed on 4.8.2008 but he has not come present despite service. Even none had appeared on behalf of J.D. No.1. It is already 3.55 P.M., therefore, J.D. is proceeded against ex-parte. J.D. No.2 has been already sufficient time for filing of objection but he has failed to furnish the same. Adjournment is requested. Request is highly opposed by the opposite counsel on the ground that he has already availed sufficient time. Heard. I do not find any sufficient reason to grant more adjournment for this purpose. So defence of J.D. No.2 is struck off. Now warrant of possession of property of the J.Ds as mentioned in the site plan be issued for 17.10.2008 on filing of WF etc. CJJD 26.9.08” The learned Executing Court has found that as per the report of Ahlmad, Munadi was duly effected against the petitioner-J.D. No.1 for 4th of August, 2008. In view of the facts of the present case and perusal of the zimni orders reproduced in the revision petition, it is revealed that the petitioner-Judgment Debtor No.1 was throughout aware of the execution Civil Revision No. 277 of 2009 (O & M) -6- proceedings against him. Learned Trial Court has rightly observed that from the record it is clear that petitioner-Judgment Debtor No.1 was avoiding service. It is also come on record that petitioner had refused to accept the summons and therefore substituted service through Munadi was resorted to. The petitioner has not been able to show his bonafide by disclosing as to what steps he had taken to join proceedings after 04.8.2008, when the Presiding Officer had next held Court on 10.08.2008 and till the passing of the ex-parte proceedings dated 26th September, 2008. In fact, the bailiff vide his report dated 15.10.2008 as noticed by the Executing Court, has reported that the petitioner had created hindrance in the execution of warrant of possession with the help of bad elements. In view of the facts of the present case, this Court is of the opinion that sufficient opportunities have been granted to the petitioner to join the proceedings, who was all along aware of the execution proceedings and he had willfully evaded to join proceedings at his own peril. In any case as per the orders passed by learned Rent Controller dated 30.8.2006, the petitioner himself was bound to hand over the vacant possession within the stipulated time to avail the concession granted. Therefore, he cannot take the plea of lack of knowledge of pending execution. In view of the above, no grounds for interference are made out. Dismissed. March 30, 2009 (JASWANT SINGH) vj JUDGE