Mr. G.S. Sandhawalia J, (Oral). - Civil Misc. No.2614-C-II of 2012

Prayer made in the application is for grant of exemption from filing the certified copies of Annexures P-2 to P-4 and for placing the Annexures P-1 to P-4 on record.

In view of the averments made in the application, which are supported by affidavit, the Civil Misc. Application is allowed.

CR No.653 of 2012

1. The present petition has been filed by the landlord who is aggrieved against the order dated 28.11.2011 passed by the Rent Controller, Bathinda wherein the application filed by the tenant for setting aside the exparte order dated 28.9.2006 and the exparte judgment dated 26.7.2007 passed in Rent Petition No.50 dated 19.4.2006 was allowed subject to payment of Rs.3000/- as costs.

2. The petitioner-landlord filed an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 on the ground that the tenant was in arrears of rent with effect from 1.10.2005 of the premises in question and he had ceased to occupy the same for a continuous period of four months without any reasonable cause. In the said eviction petition, summons were sent on 19.4.2006 and it was ordered that publication be made on 2.6.2006. Accordingly, publication was made on 25.7.2006 and the Rent Controller, Bathinda proceeded to pass an exparte order dated 28.9.2006 against the tenant. Subsequently, the Rent Controller, Bathinda allowed the eviction petition vide order dated 26.7.2007.

3. The tenant filed an application for setting aside exparte order on 6.12.2007 wherein he averred that he had never received the summons of the Court nor he had received the registered cover. The Process Server had never approached the tenant and he never refused to accept summons and the landlord in connivance with the Process Server had succeeded in getting the false report prepared that the shop of the tenant was closed. It was pleaded that registered cover was never delivered to the tenant and the landlord in connivance with the postal authorities got false report. Accordingly, it was pleaded that publication was done in a paper which had no circulation in Bathinda. Therefore, he was wrongly proceeded against exparte on 28.9.2006 on the basis of publication dated 25.7.2006. Subsequently, order of ejectment was passed and the tenant was unaware regarding the pendency of the eviction petition and only when Bailiff came to take possession on 4.12.2007, the tenant came to know and had filed an application on 5.12.2007 for inspection of the execution petition and came to know about the exparte order.

4. The application was contested by the landlord and he pleaded that since the tenant had not appeared intentionally and willfully, therefore, there was no option but to proceed against him exparte, and thus, the application deserved to be dismissed. It was pleaded that the application was filed after a period of more than 15 months from passing of the exparte order and five months from the ejectment order. It was also admitted that respondent was not running his business in the shop in dispute and kept the same locked with malafide intention to unnecessarily harass the landlord with a hope to get some hush money for vacating the premises in question. Regarding publication it was pleaded that Dainik Pilot was a newspaper which was published daily from Bathinda itself and the same had got wide circulation, therefore, exparte order was liable to the upheld.

5. The rent Controller, Bathinda after taking into consideration the pleadings of the parties framed the following issues:-

“1. Whether there are sufficient cause to set aside exparte judgment dated 26.7.2007?OPA

2. Whether the application is within time?OPA

3. Whether the application is not maintainable? OPR

4. Relief.”

6. After taking into consideration the evidence of the landlord and tenant brought on record, the Rent Controller, Bathinda allowed the application vide order dated 28.11.2011 which is the subject matter of the pr