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Judgment
J.V. Gupta, J.—This petition is directed against the order of Rent Controller, dated March 13, 1989, whereby application under Order 9, Rule 13 of the CPC for setting aside the ex-parte proceeding was dismissed.
The landlady Krishna Devi filed the ejectment application against her tenant Nand Lal Chiranji Lal on May 28, 1986 on the ground of non-payment of arrears of rent w.e.f. July 16, 1984 The amount claimed was Rs. 1450/-. August 28, 1986 was the first date of the service on the Respondent on which date it was reported that he had refused to accept service. The learned Rent Controller, thereupon ordered for service by way of proclamation for September 29, 1986 and inspite of that the Respondent failed to appear on that date and he was ordered to be proceeded ex-parte. The Respondent filed an application for setting aside the ex-parte proceedings alleging that no proper service was ever made upon him, that no summons were ever served upon him, that the report of the process server was wrong which was made in collusion with the landlady had not given the proper address of Respondent, that no registered notice was ever sent to him, that he never refused to accept the summons as alleged in the report of process server. It was further pleaded that the present application was transferred from the Court of Sh. G.L. Goyal on September 20, 1986 and no notice was given to him by the transferee Court He came to know about the ex-parte order when the husband of the Petitioner threatend him to eject him from the demised premises and he moved the application accordingly.
In the reply, filed by the landlady, these allegations were controverted. It was denied that the report made by the process server was with her collusion. She had also asserted that the tenant had no money to pay on the first date of hearing so he failed to appear on that date in order to gain time.
The learned Rent Controller, after framing the necessary issue, and relying upon the evidence led by the parties came to the conclusion that the allegations brought on record were not proved.
The Process Server who made the report exhibit RW. 3/A appeared in the witness box and stated on oath that the report of refusal was made by him since the tenant had refused to accept service. The person through whom the proclamation was made also appeared in the witness box. It was further held that the application filed by the tenant was liable to be dismissed as there was no ground made out for setting aside the ex-parte proceedings.
The learned Counsel for the Petitioner submitted that whole of the approach of the learned Rent Controller was wrong and illegal. On the report of the Process Server there was no witness attesting the said report and circumstances of the case there was no valid service. According to the learned Counsel the tenant was always ready and willing to deposit the arrears of rent.
Efforts were made for compromise in this Court between the parties, as the rent which is being paid for the shop in dispute was very low, i.e. Rs. 58/- p.m. only but the tenant did not agree thereto. Admittedly, the tenant had not paid the rent w.e.f. July 15, 1984 uptil today nor he had offered the arrears of rent to the landlady till today. Not only that even in the application for setting aside the ex-parte proceedings it was never asserted that he was ready and willing to pay the arrears of rent or he had the means to meet the liability.
After hearing the learned Counsel for the parties, I do not find any illegality or impropriety in the order of the learned Rent Controller. After discussing the entire evidence produced by the parties, a firm finding has been given that the tenant refused to accept the service and even after the proclamation was made he failed to appear. Primarily, this being a finding of fact could not be challenged in the revisional jurisdiction.
It was held by the Division Bench of this Court in Jagat Ram Hamir Chand v. Shanti Sarup AIR 1965 P&H. 175, that where an ex-parte order for the ejectment for non-payment of arrears of rent is made and an application is made by the tenant for setting aside the said order, then while setting aside the ex-parte order the Rent Controller has not merely to go by the fact that the tenant was prevented by sufficient cause from attending the hearing, but also whether on that date the tenant had the funds to clear the arrears of rent. It is for the tenant to prove not only that he was prevented by sufficient cause from not attending on the date fixed but also he had the means to meet that liability. These considerations have to be kept in view, at the time of the decision of an application to set aside an ex-parte order passed at the first hearing.
In view of the said judgment and the fact that the tenant failed to allege that he had the means to meet the liability no interference is called for. Consequently, the petition fails and is hereby dismissed.
Since further proceedings were stayed at the time of motion hearing, the parties are directed to appear before the Rent Controller on September 19, 1989.