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Union of India and anr. Vs. Surinder Chand Mehra and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 534 of 1983
Judge
Reported inAIR1985P& H68
ActsConstitution of India - Articles 299 and 300; Code of Civil Procedure (CPC), 1908 - Sections 79 - Order 9, Rule 13
AppellantUnion of India and anr.
RespondentSurinder Chand Mehra and anr.
Excerpt:
.....the parties concerned acquire knowledge of passing of the said order. - 4. on the other hand, the learned counsel for the landlord submitted that from the written statement filed on 13-3-1981 it was quite evident that the military estate officer signed the same on 21-2-1981 which clearly means that he was served for the date 23-21981 and therefore, service having been effected for 23-2-1981, that was the first date of hearing and as the rent was not tendered on that date, eviction order was rightly passed by the authorities below. the very fact that fresh summons were issued to him for 3-3-1981 was sufficient to hold that the rent controller was not satisfied that the military estate officer was served for 23-2-1981. admittedly on 3-3-1981, the arrears of rent were tendered. here the..........on that date government pleader appeared for respondent no. 1 i.e. the president of india. the learned rent controller assessed the costs as rs. 55/-. however it was stated on behalf of the government pleader that service on respondent no. 2 i.e. the military estate officer, jullundur circle, was not effected and therefore, the learned rent controller directed that respondent no. 2 be again summoned through registered post for 3-3-1981. on 3-3-1981, the arrears of rent were tendered along with costs amounting to rs. 9341/- on behalf of respondent no. 2. statements of the counsel for the parties were recorded and the case was adjourned for filing the written statement on 13-3-1981. however, on the pleadings of the parties issues were framed by the rent controller. ultimately eviction.....
Judgment:
ORDER

1. This is a tenant's petition against whom ejectment order has been passed by both the authorities below.

2. The demised premises consisting of one Bangalow No. 501-XIII-7, Rattangari Annexe situated on Chatturbhuj Road, Amritsar was given on rent at the rate of Rs. 400/- per month to the Military Estate Officer, Jullunder Circle from 5-1-1973. The regular agreement to that effect was reduced into writing. The agreement was entered into in the name of the President of India as contemplated under Art. 299 of the Constitution. The landlord filed the present application for ejectment on 17-1-1981 inter alia on the ground of non-payment of arrears of rent from 1st Oct., 1980 onwards up to the date of this application. The ejectment application was filed against the President of India and Military Estate Officer, Jullunder Circle, Jullunder Cantt. Notice of this application was issued to the respondents for 23-2-1981. On that date Government Pleader appeared for respondent No. 1 i.e. the President of India. The learned Rent Controller assessed the costs as Rs. 55/-. However it was stated on behalf of the Government Pleader that service on respondent No. 2 i.e. the Military Estate Officer, Jullundur Circle, was not effected and therefore, the learned Rent Controller directed that respondent No. 2 be again summoned through registered post for 3-3-1981. On 3-3-1981, the arrears of rent were tendered along with costs amounting to Rs. 9341/- on behalf of respondent No. 2. Statements of the counsel for the parties were recorded and the case was adjourned for filing the written statement on 13-3-1981. However, on the pleadings of the parties issues were framed by the Rent Controller. Ultimately eviction order was passed on the ground that the tender of arrears of rent made on 3-3-1981 was accepted under protest and since the tenant respondent No. 2 was served for the earlier date i.e. 23-2-1981 as was evident from the written statement filed on 13-3-1981, the tender made on 3-3-1981 was not valid. The other pleas taken by the landlord were negatived. In appeal the learned appellate authority affirmed the said finding of the Rent Controller and thus maintained the eviction order. Dissatisfied with the same, the tenant Union of India has filed this petition in this Court.

3. The learned counsel for the petitioners contended that the landlord wrongly impleaded the President of India as party as he was never the tenant and under the law he could not be made a party in any civil proceedings though the agreement on behalf of the Union of India as contemplated in Art. 299 of the Constitution. According to the learned counsel S. 79 of C.P.C. specifically provides that in a suit by or against the Government the authority to be named as plaintiff or defendant as the case may be shall be, in the case of a suit by or against the Central Government, the Union of India. Reference was also made to Art. 300 of the Constitution to contend that the Government of India may sue or be sued by the name of the Union of India. Thus argued the learned counsel that the service on the President of India for 23-2-1981 was no service in the eye of law and as regards the service on respondent No. 2 i.e. the Military Estate Officer, the same was not effected on that date and he was served for 3-3-1981 on which date the arrears of rent were duly tendered. Thus argued the learned counsel that being the first date of hearing the tender was valid. The approach of the authorities below in this behalf according to the learned counsel was wrong and illegal and thus the finding arrived at was vitiated. It was also contended that the Union of India was the property party to be made thought the premises were let out to the Union of India through the Military Estate Officer, Jullunder Circle.

4. On the other hand, the learned counsel for the landlord submitted that from the written statement filed on 13-3-1981 it was quite evident that the Military Estate Officer signed the same on 21-2-1981 which clearly means that he was served for the date 23-21981 and therefore, service having been effected for 23-2-1981, that was the first date of hearing and as the rent was not tendered on that date, eviction order was rightly passed by the authorities below. According to the learned counsel, impleading the President of India as party may be a technical mistake, but he was duly served and was represented by the Government Pleader on 23-2-1981 and under the circumstances that will be deemed to be the first date of hearing for making the tender of the arrears of rent. According to the learned counsel once it is found that the respondent Military Estate Officer had the notice of the date of hearing i.e. 23-2-1981 then the Court shall not set aside a decree if passed ex parte merely on the ground that there has been an irregularity in the service of summons. in this context reference was made to O. 9, R. 13, C.P.C. as amended.

5. After hearing the learned counsel for the parties, I find force in the contention raised on behalf of the petitioner. The learned counsel for the landlord was unable to show any provision of the statute under which President of India could be made a party in the civil proceedings even though the contracts or agreements are executed on behalf of the Union of India in the name of the President as provided under Art. 299 of the Constitution. Thus impleading the President of India as a party was wrong and illegal and any notice served on him was of no consequence. As a matter of caution, the Courts should be vigilant enough before issuing the summons as to see who are the parties arrayed as respondents or defendants. In this view of the matter, even though the Government Pleader appeared on behalf of the President of India on 23-2-1981, but it was of no legal consequence and the same could not be said to be the first date of hearing. The Military Estate Officer in whose occupation the premises were, was not served for that date. The very fact that fresh summons were issued to him for 3-3-1981 was sufficient to hold that the Rent Controller was not satisfied that the Military Estate Officer was served for 23-2-1981. Admittedly on 3-3-1981, the arrears of rent were tendered. Under the circumstances, it could not be held that the first date of hearing will be deemed to be 23-2-1981 because in the written statement filed on 13-3-1981 it was found that it was signed by the Military Estate Officer on 21-2-1981. As a matter of fact once the Court adjourns the case for service on the respondents then it could not be successfully argued that they would be deemed to have been served earlier for the prior date simply because in the written statement filed subsequently, some prior date had been mentioned therein. The matter might have been different in case respondent No. 2 i.e. Military Estate Officer was proceeded ex parte and then an application would have been filed for setting aside the ex parts proceedings. In that situation, it might have been argued that since he had the knowledge of the proceedings therefore, irregularity in service was not a sufficient ground for setting aside the ex parte order. That is not the situation in the present case. Here the tenant is required to tender the arrears of rent on the first date of hearing and the first date of hearing will be the date for which he is served and the Court is satisfied that he was served for the date. As observed earlier, the Rent Controller was never satisfied that respondent No. 2 was served for 23-2-1981. If he was satisfied then there was no occasion for adjourning the case for 3-3-1981 for service on respondent No. 1. The very fact that the case was adjourned for service for 3-3-1981, proved that the respondent was not served for that date. Under the circumstances, the first date of hearing will be 3-3-1981 and not 23-2-1981 as held by the authorities below. The whole approach of the authorities in this behalf is misconceived and is wrong and illegal and thus the finding arrived at is vitiated.

6. The learned counsel for the petitioner also tried to argue the question of res judicata etc. as to the relationship of landlord and tenant between the parties. But in view of the above finding this question does not arise. Consequently the petition succeeds and the orders of the authorities below are set aside and the ejectment application is dismissed with no order as to costs.

7. Petition allowed.


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