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2022 Supreme(P&H) 913
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Anil Kshetarpal, J.
M/s Jagdamba Jewellers - Appellant
Versus
Surinder Singh - Respondent
CR-2060-2022 (O&M)
Decided On : 23-05-2022
Mr. Raman Sharma, Advocate, for the Appellant.
The duty of a party receiving a summon to object to any defects at the time of receiving the summon, and the importance of appearing before the Court to address concerns at the time of receiving the summon.
Headnote:
ex parte eviction - Rent Control - Negotiable Instruments Act, 1881 - Section 138 - Order 5 Rule 2 CPC
Fact of the Case:
The tenant's application for setting aside ex parte eviction order has been dismissed. The petitioner received the notice for service of summons but did not appear, leading to an ex parte decree for eviction. The petitioner claimed confusion due to a similarly titled proceedings under Section 138 of the Negotiable Instruments Act, 1881, and argued that the summons were not accompanied by a copy of the petition.
Finding of the Court:
The Court found that the petitioner's claims of confusion and lack of accompanying copy of the petition were not acceptable. The Court also noted the petitioner's failure to pay arrears of rent and the unregistered rent note. The Court dismissed the tenant's application for setting aside the ex parte eviction order.
Issues: Service of summons, confusion regarding multiple proceedings, non-appearance of the petitioner, lack of accompanying copy of the petition, arrears of rent, unregistered rent note
Ratio Decidendi: The Court held that the petitioner's failure to object to the lack of accompanying copy of the petition at the time of receiving the summons was fatal to their claim. The Court also emphasized the petitioner's duty to appear before the Court and address any concerns at the time of receiving the summons.
Final Decision: The Court dismissed the tenant's application for setting aside the ex parte eviction order.
JUDGMENT
Anil Kshetarpal, J. (Oral) - The tenant's application for setting aside ex parte eviction order has been dismissed.
2. Admittedly, the petitioner did receive the notice for service of summons on 11.08.2021. On his non-appearance, ex parte proceedings were ordered on 20.09.2021 and thereafter, an ex parte decree was passed. The petitioner claims that it remained under a confusion as a similarly titled proceedings under Section 138 of the Negotiable Instruments Act, 1881, were also pending. It is further submitted that the summons were not accompanied by a copy of the petition.
3. The Court has noticed that the petitioner has not paid arrears of rent to the tune of Rs.40,00,000/-, approximately. The petitioner took the premises on rent at the rate of Rs.1,00,000/- per month which was liable to be increase as per determined percentage every year. The petitioner did receive the summons. The summons were issued to the petitioner by Civil Judge, Junior Division, Chandigarh. The summons in a criminal complaint are issued by the Judicial Magistrate.
4. There is a ex parte decree for eviction. The Rent Controller, on appreciation of material, has recorded as many as five reasons to dismiss the application. The relevant discussion is as under:-
"(i) On the summons sent for the service of the case in question, the name of the Court before which the same was pending has been duly mentioned, along-with the nature of the case filed against her. The case in question instituted against the applicant/respondent had a different title and different number, which could not have been confused as any other case instituted against the applicant/respondent for the dishonour of any cheque.
(ii) The summons of the case in question were served on the applicant/respondent for a specific date i.e. 20.09.2021. Nothing has been brought on record on behalf of applicant/respondent to show that the other case pending between the parties was also fixed for the same date, so as to justify the confusion of the applicant/respondent regarding both the said cases being the same.
(iii) It is stated that the applicant has not been feeling well for the last couple of years, because of which she failed to engage a counsel and show the summons received by her to the said counsel. However, in support of the said claim of the applicant, no medical record etc. has been produced, which could establish that the applicant was suffering from such a serious ailment, which prevented her from even approaching her counsel on receiving a fresh set of summons in her name from the Court. As such, in the opinion of this Court, the above furnished reasoning of the applicant is nothing but a vague excuse.
(iv) It is stated that the applicant did not receive a copy of the Rent Petition in question along-with summons sent to her. However, no such objections has been taken by the applicant while receiving the said summons, which is evident from the report of the process server upon the copy of the said summons attached on the judicial file. Had the applicant really not received a copy of the petition along-with the summons served to her, she would objected regarding the same during that time only and the said objection would have been recorded by the process server upon the copy of the said summons sent back to the Court. It appears that the applicant has taken this objection as a result of an afterthought, only to create an additional ground in her favour for setting aside the exparte eviction order passed against her.
(v) In the case in question, the summons were received by the applicant on 11.08.2021. She was proceeded against exparte on 20.09.2021 and thereafter, after a period of roughly two months, final eviction order was passed against her on 16.11.2021. In the case in question, the applicant after receiving the summons, had a total period of more than 3 months to put in her appearance before the Court, before the final eviction order was passed against her. However, she hersel
