A. S. SHERKHAN v. R. APPAJAPPA — 1973 DIGILAW 130 (KAR)

( 1 ) THIS is a tenant's revision petition under S. 50 of the Mysore Rent control Act, 1961 (hereinafter referred to as the Act), against the order passed by the, First Additional First Munsiff, Bangalore in HRC No. 98 of 1969 dt. 7-2-1973 dismissing the petitioner's application filed under Or. 9, rule 13 of the CPC read with Rule 29 of the Mysore Rent Control Rules. ( 2 ) THE respondent-landlord filed an application for eviction against the petitioner. During the pendency of the said application, I. A. No. 1 was made by the landlord for taking action under S. 29 of the Act. That matter was adjourned from time to time and finally an order was made on the 15th of April, 1969, which reads as follows :" Rs. 84 paid towards rent. Hence I. A.-I is closed, for now. On main petition 19-8-1969". Thereafter, the evidence on behalf of the landlord was recorded and his side was closed on 12th September, 1969 and the case was adjourned for recording the evidence of the respondent. Thereafter, the case was adjourned to 13-10-1969. On 13-10-1969, the case was once again adjourned for the tenant's evidence. On that date, it is noted in the order-sheet that the landlord's Counsel reported that heavy rents are due and that Rs. 100 are paid towards rent. The case was adjourned at the request of the counsel for the tenant to 27th November 1969. On 27th November, 1969, the Court made an order under S. 29 (4) of the Act stopping all further proceedings and directing summary eviction of the tenant. The order disclosed that the tenant as well as his Counsel were absent till 1-50 p. m. on that date and that no payment was made or reported to be made except a payment of Rs. 100 paid on 13-10-1969. On the ground that the tenant has not paid rent from 15-4-1969 onwards at the rate of Rs. 100 per month and that as no cause has been shown, the Court made the order under s. 29 (4) of the Act against the tenant. Thereafter, an application was made on behalf of the tenant under Or. 100 paid on 13-10-1969. On the ground that the tenant has not paid rent from 15-4-1969 onwards at the rate of Rs. 100 per month and that as no cause has been shown, the Court made the order under s. 29 (4) of the Act against the tenant. Thereafter, an application was made on behalf of the tenant under Or. 9, Rule 13 of the CPC read with rule 29 of the Mysore Rent Control Rules for setting aside the order made by the learned Munsiff on the 27th November, 1969 under S. 29 (4) of the act. That application was dismissed by the learned Munsiff by his order under revision dt. 7th February, 1973. The learned Munsiff has taken the view that the order of 27th November, 1969 is not an exparte order and further that as the order was passed und,er S. 29 (4) of the Act, the only remedy of the petitioner was to approach the High Court in revision. ( 3 ) SHRI C. Srinivas Vakil, learned Counsel for the petitioner, contended that the view taken by the learned Munsiff is wrong. Rule 29 of the Mysore Rent Control Rules provides that any exparte order passed under the Act may be set aside on sufficient cause being shown for non- appearance and the provisions of Or. 9 of the CPC, 1908 shall, as far as may be and with necessary medifications, be followed. The learned Munsiff was wrong in assuming that because the order was passed under Sec- 29 of the Act that the petitioner could not have taken advantage of Rule 29 of the Rules and the provisions of Or. 9 of the CPC. I also find it difficult to agree with the learned Munsiff that the order passed was not an exparte order. The facts and circumstances of the case, which I have narrated above, clearly show that the order passed on the 27th of November, 1969 was an exparte order, the same having been passed in the absence of the tenant as well as his Counsel. ( 4 ) THE various notings in the order sheet indicate that after I. A.-I for taking action under S. 29 of the Act was closed by the Court on the 15th of April, 1969, the petitioner-tenant was thereafter not required to show cause why actioa should not be taken under S. 29 (4) of the Act. ( 4 ) THE various notings in the order sheet indicate that after I. A.-I for taking action under S. 29 of the Act was closed by the Court on the 15th of April, 1969, the petitioner-tenant was thereafter not required to show cause why actioa should not be taken under S. 29 (4) of the Act. There was no further application made by the landlord in that behalf. It is also not possible to infer from the notings in the order-sheet that the petitioner was, in fact, required to show cause against the proposed action under S. 29 (4) of the Act. In these circumstances, the Court ought to have set right the mistake committed in passing the order on the 27th november, 1969 under S. 29 (4) of the Act instead of passing an order on the merits of the petition after considering the evidence produced by the landlord. ( 5 ) THE petitioner, in support of his application for setting aside the exparte order of 27th November, 1969, has stated that a bona fide mistake was committed in noting the date of hearing as 28-11-1969 and it is on, account of that mistake that the tenant as well as his Counsel were not present in Court. It is supported by the noting in the diary of the Counsel lor the petitioner. There are no good grounds to disbelieve this part of the case of the petitioner. It appears that it is on account of a bona fide mistake committed in noting the wrong date of hearing that the petitioner and his Counsel remained absent on the 27th November, 1969. This is, therefore, an eminently fit case, in my opinion, to set aside the order under revision dt. 7th February, 1973, as also the exparte order made by the learned Munsiff on the 27th of November 1969. ( 6 ) THE revision petition is accordingly allowed and the learned Munsiff is directed to dispose of the eviction petition in accordance with law and on merits. As this matter is pending for a long time, the learned Munsiff is directed to dispose of the main matter expeditiously. No costs. --- *** --- .