Krishan Lal vs Virender Kumar and others

J.V. Gupta, J.—This petition is directed against the order of the Rent Controller dated 23rd May, 1984 whereby the application for setting aside the ex-parte ejectment order dated 9th September, 1980 was dismissed.

The landlord Virender Kumar filed an ejectment application on 31st January, 1977, inter alia, on the ground that the tenants were in arrears of rent and that they had materially impaired the value of and utility of the premises and that the landlord bona-fide required the premises for his own use and occupation. In the ejectment application, five persons were arrayed as tenants named Krishan Lal, Jagmohan, Kuldip Singh and Rajinder Singh, son of Raghu Nath Rai Bakshi and their mother Harbans Kaur, widow of Shri Raghu Nath Rai. It may be stated here that originally Raghu Nath Rai was the tenant but after his death, the four sons and the widow inherited the tenancy. All the respondents-tenant except Krishan Lal (petitioner) were served personally in the ejectment application. Krishan Lal was served through substituted means as he was serving in the Military and was not himself residing in the tenanted premises. The tenants tendered the arrears of rent on the first date of hearing. The application remained pending and the tenants resisted the same. It was only on 5th September, 1980 when they absented themselves and consequently, ex-parte order of ejectment was passed on 9th September, 1980. On 9th January, 1981, Krishan Lal filed an application for setting aside the ex-parte ejectment order alleging that he was never served in the ejectment application filed against him. The other respondents also moved a separate application for setting aside the ex-parte order on the ground that the case was adjourned for compromise and therefore, they did not appear before the Rent Controller under the impression that the case was fixed for compromise and not for regular hearing. These applications were contested on behalf of the landlord who denied the averments made in these applications. A further plea was taken that the applications were barred by time. The learned Land Controller framed the following two issues:--

(1) Whether there are sufficient grounds to set aside the ex-parte decree daded 9th September 1980 as alleged ? OPA.

(2) Whether the application is within time ? OPA.

The learned Rent Controller found that as regards the application filed on behalf of Jagmohan and others, no evidence was led of any alleged compromise and they were, thus, rightly proceeded with ex-parte and there was no sufficient ground to set aside the ex-parte order. As regards the application filed by Krishan Lal the learned Rent Controller observed as under: --

In the present case, three brothers and the mother of petitioner Krishan Lal had appeared in the court and, therefore, they could have well defended their interest with respect to the disputed house which was in their joint tenancy. They had even tendered the arrears of rent in this case on behalf of all the tenant including Krishan Lal and, therefore, it is very clear that they were jointly defending the interest of Krishan Lal also. Hence, the fact that the service upon the petitioner Krishan Lal was not effected through Personel in this case is of no consequence. Therefore, I find no sufficient ground for setting aside the exparte ejectment order dated 9th September, 1980.

Under Issue No. 2 the learned Rent Controller found that both the applications were barred by time as the same were filed after more than 30 days from the order or its knowledge In view of these findings, both the applications were dismissed. Dissatisfied with the same, only Krishan Lal has filed this petition.

The main argument of the learned counsel for the petitioner is that there was no due service on Krishan Lal as required under Order 5, Rule 28, Code of Civil Procedure, because he was serving the military and, therefore, the summons for service were to be sent through his Commanding Officer together with a copy to be retained by the defendant and since this was never done there was no due service on him and any ex-parte order thus passed was liable to be set aside. It was also contended that each tenant had a separate interest and, therefore, it was obligatory on the part of the landlord to get the personal service effected on Krishan Lal tenant as well. In support of this contention, reference was made to Tarlok Chand, Kapoor Chand v. Basubai Vastimal Oswal 1983 (1) R.C.R. 139, Ishwar Lal Pranjivandas v. Labhshankar Hargovindas Bhatt 1982 (2) R.C.R. 380 and Vidyawanti v. Taken Dass 1974 R.C.R. 47.

After hearing the learned counsel for the parties and going through the relevant evidence on record I do not find any merit in this petition. It was admitted by Krishan Lal as AW1 that the tenancy was joint, i.e., all the brothers and their mother were joint tenants. He also admitted in his statement that their family was also joint and they had joint business. He has also stated that he had been receiving letters from his wife during the pendency of the ejectment application before the Rent Controller. Moreover, it has nowhere been suggested that the interest of his brothers and their mother was adverse in any manner to that of Krishan Lal. Admittedly Krishan Lal himself was not in occupation of the premises as such. His wife and children were living therein along with his other brothers. On these admitted facts, it could not be successfully argued that Krishan Lal did not know about the ejectment proceedings or the ex-parte ejectment order passed against them. All the other respondents except Krishan Lal have been appearing in Court regularly. For the reasons best known to them, they absented themselves on 5th September, 1980 when subsequently on 9th September, 1980, ex-parte ejectment order was passed against them. On these facts it has been rightly held by the learned Rent Controller that there was no sufficient ground to set aside the ex-parte ejectment order and that the application for setting aside the same was also barred by time. There is no illegality or improprietry in the said order to be interfered with in revisional jurisdiction. The authorities relied on by the learned counsel for the petitioners have no applicability to the facts of the present case. The ejectment application was filed in January, 1977 whereas the ejectment order was passed on 9th September, 1980. For all this period, the tenants had successfully delayed their ejectment from the demised premises when the landlord sought their ejectment on the ground of bona fide personal necessity as well as on the ground that the tenants had impaired the value and utility of the building. Under these circumstances, the petition fails and is dismissed with costs. How ever, the tenants are allowed three months'' time to vacate the premises provided all the arrears of rent, if any, and advance rent for three months is deposited with the Rent Controller within one month with an undertaking in writing that after the expiry of the said period, vacant possession will be handed over to the landlord.