Sh. Raj Kumar vs Sh. Brij Lal
2004 Latest Caselaw 1051 Del

JUDGMENT

R.S. Sodhi, J.

1. This petition is directed against the judgment dated 18.10.2002 of the Additional Rent Control Tribunal, Delhi whereby the learned Additional Rent Control Tribunal has set aside the order of the Additional Rent Controller dated 6.5.1995 whereby the Additional Rent Controller haddismissed the application of the respondent under Order 9 Rule 13 CPC. The application under Section 19 of the S.R.C. Act for re-entry had also been dismissed.

2. Brief facts of the case as noted by the Additional Rent Control Tribunal are as follows:-

"The facts giving rise to the present appeal are the Mool Chand predecessor of the respondent preferred a petition for eviction against the appellant bearing No.-E-344 of 1991 Mool Chand Vs. Smt.Ram Devi under section 14(1)(A)(b) and (e) of D.R.C.Act. During the pendency of said petition Mool Chand died and his legal represents viz. the respondents were brought on record. In the said petition an eviction order was passed by Shri M.L.Mehta, Addl.Rent Controller on 29.9.85 after proceeding ex-parte against the appellant. The eviction order was passed under section 14(1)(e) of D.R.C. Act and also under section 14(11)(a) of D.R.C. Act if the respondent failed to deposit the rent w.e.f.4.9.78 up to date @ Rs.200/- per month within one month from the date of the order.

3. The order noted that the appellant was proceeded ex-parte vide order dated 27.4.82.

4. An execution of the said eviction order was sought by the respondents. In execution of the said eviction order was sought by the respondents. The appellant having come to know of the eviction order preferred a petition under Order 9 Rule 13 CPC pleading that the appellant has been in occupation of the premises No.1/1A Double Storey, Prem Nagar, opposite Tilak Nagar, New Delhi since 1958 till 2.6.85 when the appellant was forcibly dispossessed by the respondents with the assistance of the court bailiff and the persons accompanied him. The appellant claimed that there was never a relationship of landlord and tenant between the appellant and the respondent. The appellant was never a tenant either under deceased Mool Chand or Raj Kumar. The decree holder obtained exparte eviction order by playing fraud upon the court and in collusion with the process server and the postal authorities. The respondent obtained summons for service of the appellant for 27.4.82 and obtained the report of refusal on the said summons in connivance and collusion with the process server who never came on the spot for service of the summons. The said report had been manipulated by the respondent in the court premises itself by applying dubious means. Similarly the respondent obtained report of service upon the registered cover in collusion with the concerned by applying dubious means. The respondent obtained registered cover dusty from the Ahalmad of the court and thereafter he obtained for forget the signature of some fictitious person on the acknowledgment card in connivance with the local postman and this fact is evident from the record itself. The appellant never received summons from the court by any mode nor did he refuse the same or avoided service of the summons. The summons was obtained for 27.4.82 by the respondent and all manipulation made and got so that appellant is preceded ex-parte on 27.4.82. The appellant was forcibly dispossessed. The appellant therefore submitted that the exparte order dated 29.5.85 is liable to be set aside and possession of the property is liable to be restored to the appellant immediately. The appellant prayed in the application that the exparte order dated 29.5.85 be set aside. The appellant be allowed to contact the proceedings on the circumstances explained in the petition and the appellant be restored possession of the property. Application was supported by an affidavit.

5. The respondent contested the petition. The respondent filed a reply to the petition and claimed that the appellant was fully aware of the pendency of the proceedings. Service of summons were duly sent and received under registered A.D. At very same address. The Appellant intentionally refused the summons. There was no fraud as claimed by the appellant. Respondent denied that the service was procured in collusion with the process server or the postman.

6. The court below recorded the evidence of the appellant Brij Lal, as AW1 one Gurjewat Singh and as AW3 Chander Pal and also the testimony of RW1 D.N.Ratra, RW2 Jai Narain, RW3 Prithvi Singh and RW4 Raj Kumar. The court below after considering the evidence on record ultimately dismissed the petition under Order 9 Rule 13 CPC.

7. It is contended by counsel for the petitioner that the Tribunal is wrong in holding there there was no refusal of service and that the A.D. Card could not have been in the court on 27.4.1982 when the same shows a stamp of 29.4.1982. He also submits that in addition to service by Registered Post serve had also been effected through the process server which was refused by Shri.Brij Lal.

8. In this view of the matter counsel submits that the Tribunal ought not to have interfered with the order of the Additional Rent Controller. Counsel for the respondent on the other hand contends that a bare look at the A.D.Card reflects that the dispatch date of the same is 29.4.1982 and that the is A.D. Card refers to a case, Mool Chand Vs. Gyan Chand and, therefore, could not have been before the court on 27.4.1982 when the respondent was proceeded ex parte. He also submits that the process server in his cross-examination has stated that he does not know Brij Lal and also he made no attempt to join anyone from the neighborhood as witness and also that he is not in a position to recognize Brij Lal. In that view of the matter, counsel submits that no service was in fact effected on Brij Lal and, therefore, the matter could not have been proceeded ex-parte.

9. Heard counsel for the parties and have gone through the judgment under challenge as also th A.D.Card. From a bare perusal of the judgment it appears to me that the Tribunal has with great care gone into the material on record while returning a finding that the service of summons was not effected on Brij Lal. I have also re-examined the material and find that the testimony of RW-2 does not have the required ring of truth and also there is doubt created by the A.D.Card as to the date of the dispatch and receipt in the court.

10. In this view of the matter, I find that the order of the Tribunal cannot be faulted with.

11. With this Civil Miscellaneous Main 61/2003 is dismissed. CM Nos. 333, 334/2003 also stands dismissed.