Punjab-Haryana High Court
Jatinderjit Singh Etc vs Raj Rani Etc on 3 February, 2025
Neutral Citation No:=2025:PHHC:015102
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Reserved on: January 28, 2025
Pronounced on: February 03, 2025
RSA No.1773 of 1999 (O&M)
Ja0nderjit Singh and another . . . . Appellants
Vs.
Raj Rani and others . . . . Respondents
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- *Mr. M.L. Sarin, Sr. Advocate with
Ms. Himani Sarin, Advocate for the appellants.
*None for the respondents.
DEEPAK GUPTA, J.
Civil suit for declara!on along with permanent injunc!on and
consequen!al relief of possession filed by plain!ff - Dheru Ram through his
legal representa!ves (now respondents through his legal heirs) regarding
shop in dispute was decreed by the trial Court on 02.02.1999 against
defendants - Ja!nderjit Singh and another (now appellants). Appeal filed by
the defendants was dismissed by the First Appellate Court of Ld. District
Judge, Hoshiarpur vide judgment dated 13.03.1999. Against this concurrent
findings of the Courts below, defendants of the case have now approached
this Court by way of present regular second appeal.
2. In order to avoid confusion, par!es shall be referred as per their
status before the trial Court.
3.1 Perusal of the paper book would reveal that plain!ff - Dheru
Ram was admi4edly a tenant under the defendants on the demised shop @
₹104/- per month inclusive of the house tax. Two ejectment pe!!ons were
earlier filed by the landlords-defendants, claiming rent @ ₹104/- per month
including house tax and on both the occasions, claimed rent was tendered
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and the ejectment pe!!ons were dismissed. Lastly, landlords filed another
ejectment pe!!on claiming rent of subsequent period @ ₹104/- per month
inclusive of house tax, which was tendered by the plain!ff - tenant.
3.2 It was pleaded by the plain!ff in the present suit that in the
aforesaid last ejectment pe!!on, on an understanding given by the
defendants that since the rent claimed had been tendered by him (plain!ff)
and so the defendants-landlords will withdraw the pe!!on, the plain!ff
absented and was proceeded against ex parte by the Rent Controller. Taking
advantage of his absence, defendants against their own pleadings claimed
that rent of ₹104/- per month did not include the house tax and since the
tender was short, so the tenant, i.e. plain!ff was liable to be ejected. Finding
the said tender to be short, the Rent Controller allowed the ejectment
pe!!on on 02.02.1996.
3.3 The ejectment order was executed without no!ce to the
plain!ff. Plain!ff then brought the present suit challenging the order of
ejectment, having been passed on misrepresenta!on and fraud having been
played by the defendants on the plain!ff as well as on the Court.
4. The defendants-appellants herein contested the suit. Necessary
issues were framed. Evidence produced by both the par!es was taken on
record.
5. Trial Court decreed the suit by seAng aside the order of
ejectment. Defendants filed appeal before the First Appellate Court but the
same was dismissed in limine.
6. It may be noted here itself that before the First Appellate Court,
conten!on was raised by the appellants-defendants that suit filed by the
plain!ff-respondent was not maintainable, as the plain!ff should have
challenged the ejectment order before the Rent Controller or before the
Appellate Authority, if the order had been passed against facts. However, the
said conten!on was rejected by the First Appellate Court by observing that a
poor li!gant was at the mercy of legal advice given to him by his counsel and
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in case, he had been wrongly advised at some stage, he could not be allowed
to suffer for lapse of his counsel on the technical grounds. ThereaBer, the
First Appellate Court proceeded to dispose of the appeal on merits and
dismissed the same in limine.
7.1 Assailing the above-said judgments passed by the Courts below,
it is contended by learned Sr. counsel for the appellants that the First
Appellate Court went in error by holding the suit to be maintainable,
inasmuch as in case the ex parte ejectment order had been passed against
facts, as was contended by the plain!ff, the proper remedy was either to
move an applica!on for seAng aside the ex parte ejectment order before
learned Rent Controller, or file the appeal before the Appellate Authority.
Learned counsel has referred to Sec!on 15 of the East Punjab Urban Rent
Restric!on Act, 1949 (hereinaBer referred as 'the Punjab Rent Act') in this
regard.
7.2 S!ll further, it is argued that the plea of fraud, like any other
charge, whether made in any civil or criminal proceedings must be
established beyond reasonable doubt and however, suspicious may be
circumstances, however strange the coincidence and however grave the
doubts, the suspicion alone can never take the place of proof. Learned Sr.
Advocate further argues that mere pleadings do not make a strong case of
fraud, as pleadings make only the allega!ons or averments of facts. Learned
Sr. Advocate contends further that fraud is to be pleaded and proved and
that level of proof required is extremely higher. It is argued further that in
case a decree is challenged on the ground that it is fraudulent and has been
passed based upon the plea which was factually incorrect, the Court in the
second suit cannot go behind the earlier decree to find out as to whether
decree was passed on right or wrong facts, because that decree se4led rights
of the par!es and as such, subsequent Court is not en!tled to go into facts to
find whether on that basis earlier decree could be passed.
7.3 Lastly, it is argued by learned Sr. Advocate that right to file first
appeal against the decree under Sec!on 96 of the Code is a valuable right of
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the li!gant and that jurisdic!on of the Appellate Court while hearing the first
appeal is very wide like that of the trial Court and it is open to the appellant
to a4ack all the findings of facts or/and of law in the first appeal and that it is
the duty of the First Appellate Court to appreciate the en!re evidence and
then it may come to a conclusion different from that of the trial. Learned Sr.
Advocate argues that in the circumstances, the First Appellate Court should
not have dismissed the appeal in limine, without issuing any no!ce to the
opposite party, i.e. plain!ff-respondents and without apprecia!ng the
evidence on record.
8. Present appeal was admi4ed in the presence of counsel for the
respondents-plain!ffs vide order dated 01.05.2002. When the ma4er was
listed for final hearing, fresh no!ce was sent to the respondents. Respondent
No.1 was reported to have died, whereas respondent Nos.2 to 5 did not
appear despite service through the family members. As respondent Nos.2 to
5 as LRs of respondent No.1 were already on record, so the ma4er was
proceeded further and the service was assumed to be completed. Nobody
turned up for the respondents so as to contest this appeal.
9. This Court has considered submissions of learned Sr. counsel for
the appellants and has perused the record carefully.
10. ABer considering the submissions of learned Sr. Advocate for the
appellants, this Court is of the view that present appeal deserves to be
allowed on the sole point that suit in itself, filed for seAng aside an ex parte
ejectment order on the ground of fraud, was not maintainable.
11. Sec!on 15 of East Punjab Urban Rent Restric!on Act, 1949 reads
as under:-
"15. Ves0ng of appellate authority on officers by State Government.
(1) (a) The State Government may, by a general or special order, by
no!fica!on confer on such officers and authori!es as they think fit, the
powers of appellate authori!es for the purposes of this Act, in such area in
such classes of cases as may be specified in the order.
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(b) Any person aggrieved by an order passed by the Controller may,
within fi een days from the date of such order or such longer period as the
appellate authority may allow for reasons to be recorded in wri ng, prefer
an appeal in wri ng to the appellate authority having jurisdic on. In
compu!ng the period of fiBeen days the !me taken to obtain a cer!fied
copy of the order appealed against shall be excluded.
(2) On such appeal being preferred, the appellate authority may order
stay of further proceedings in the ma4er pending decision on the appeal.
(3) The appellate authority shall decide the appeal aBer sending for the
records of the case from the Controller and aBer giving the par!es an
opportunity of being heard and, if necessary, aBer making such further
inquiry as it thinks fit either personally or through the Controller.
(4) The decision of the appellate authority and subject only to such
decision, an order of the controller shall be final and shall not be liable to
be called in ques on in any Court of Law except as provided in sub-Sec!on
(5) of this Sec!on.
(5) The High Court may, at any !me on the applica!on of any aggrieved
party or on its own mo!on, call for and examine the records rela!ng to any
order passed or proceeding taken under this Act for the purpose of
sa!sfying itself as to the legality or propriety of such order or proceedings
and may pass such order in rela!on thereto as it may deem fit."
12. As is evident from the aforesaid provisions, any person who is
aggrieved by an order passed by the Rent Controller, can file an appeal
before the Appellate Authority within the prescribed !me or extended !me,
if allowed by the appellate authority; and the decision of said Appellate
Authority and subject only to such decision, an order of the controller shall
be final and is not liable to be called in ques!on in any Court of Law except as
provided in sub-Sec!on (5) of this Sec!on. Thus, a complete remedy is
provided to any person aggrieved by the order of the Rent Controller so as
approach the appellate authority.
13. In the present case, impugned ejectment order dated
02.02.1996 was passed allegedly by pleading wrong facts on the part of the
landlords-defendants (appellants herein). Without going into the controversy
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as to whether the facts pleaded by the landlords before the Rent Controller
to the effect that rent of ₹104/- per month was exclusive or inclusive of
house tax, the fact remains that ejectment order has been passed ex parte by
the Rent Controller. In case the tenant i.e., plain!ff-respondent herein was
aggrieved by the said ex-parte ejectment order passed by the Rent
Controller, the proper remedy for him was to challenge the ex parte
ejectment order before the Appellate Authority under Sec!on 15 of the Act.
The other alterna!ve remedy could be to move an applica!on under Order 9
Rule 13 CPC before the Rent Controller for seAng aside the order proceeding
the tenant ex-parte and the subsequent final ex parte ejectment order.
However, the independent suit filed by him for assailing the ex parte order on
the ground of fraud or misrepresenta!on was not at all maintainable. The
Courts below clearly went in error in holding the suit to be maintainable.
14. Apart from above, it has been held by this Court in "Harpal and
others v. Smt. Ram Piari and others", 1981 P.L.J. 492 that when challenge is
given that a consent decree was collusive and fraudulent and the same is
liable to be declared as null and void, based on the plea, which was factually
wrong, the Court in the second suit cannot go behind earlier decree to find
out as to whether decree was passed on the right or wrong facts, because
that decree se4led rights of par!es. It was held further the subsequent Court
is not en!tled to go into the facts to find whether on that basis earlier
consent decree could be passed.
15. In present case, the First Appellate Court clearly went in error in
holding that in case the plain!ff had been ill advised by his counsel, he could
not be faulted, is absolutely not sustainable. When a specific remedy under
Sec!on 15 of the East Punjab Urban Rent Restric!on Act, 1949 is provided to
a tenant to assail the ex parte ejectment order; or to move the Rent
Controller for seAng aside the ex parte ejectment order under Order 9 Rule
13 CPC, he could not have filed an independent suit to challenge the
ejectment order on the ground of fraud and misrepresenta!on.
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16. On the basis of the en!re discussion as above, the present
appeal is hereby accepted. The judgment and decrees as passed by the
Courts below are hereby set aside. The suit as filed by the plain!ff
(respondents herein) is dismissed with cost.
February 03, 2025 (DEEPAK GUPTA)
Sarita JUDGE
Whether speaking/reasoned? Yes
Whether reportable? Yes
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