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Madhya Pradesh High Court · body

2000 DIGILAW 54 (MP)

Upica Handloom Ltd. v. Teckchand Keshwani

2000-01-13

R.S.GARG

body2000
By this petition under Section 23-E of M.P. Accommodation Control Act. the tenant seeks to challenge the correctness, validity and propriety of the order dated 12.7.1995 passed in Case No. 60/RCN92 by the learned Rent Controlling Authority directing eviction of present applicant from the suit premises. According to the learned counsel for the applicant. the evidence led by the non-applicant landlord falls short in proving the alleged bonafide need and as there is no one to support the statements of the plaintiff-non-applicant. the Rent Controlling Authority ought to have dismissed the petition. Criticising the statements of the non-applicant/landlord, it was contended that the non-applicant stated that he had taken the training regarding the business from his relation and he would obtain the goods on credit from the said relation but neither the details of the said relation has been given nor the said relation has been examined in support of the plaintiff's contention, therefore the Court below could not rely upon the solitary testimony of the non- applicant. Learned counsel for the non-applicant, on the other hand submits that as the present applicant was proceeded ex parte it was not necessary for the present non-applicant to lead any further evidence because on the strength of the uncrossed testimony of the non-applicant, the Rent Controlling Authority could certainly grant an order in favour of the landlord. In reply, learned counsel for the applicant submits that the Court below was not justified in rejecting the applicant's application praying for setting aside the ex-parte order. He submits that the Court below could not proceed ex-parte against the present applicant. Before entering into the factual controversy, it is necessary to see the order dated 16.9.1994 and the subsequent orders. On 16.9.1994, the present applicant along with the affidavit filed certain documents, thereafter the case could not be taken up on 3.9.1994 as the Presiding Officer was busy in Election Duty. On 10.10.1994 yet another application under Section 151 of C.P.C. was filed. On 24.10.1994, 7.11.1994 and 1.12.1994 the matter could not be heard as the Presiding Officer was otherwise busy. On 22.12.1994, the learned Rent Controlling Authority rejected the application filed under Section 151. C.P.C. inter alia observing that the application could not be allowed. On 2.1.1995 the learned Rent Controlling Authority recorded that on 28.12.1994 an application under Order 9 Rule 7, C.P.C. was filed. On 22.12.1994, the learned Rent Controlling Authority rejected the application filed under Section 151. C.P.C. inter alia observing that the application could not be allowed. On 2.1.1995 the learned Rent Controlling Authority recorded that on 28.12.1994 an application under Order 9 Rule 7, C.P.C. was filed. Copy of the application was supplied to the counsel for the non-applicant and the matter was fixed for consideration. For one reason or the other, the matter could not be taken up to 6.4.1995. On 17.4.1995, the case was again adjourned and on 2.5.1995 the parties were heard on the application filed under Order 6 Rule 17, C.P.C. On 16.5.1995, the application filed under Order 6 Rule 17, C.P.C. was rejected and on the same date the application filed under Order 9 Rule 7, C.P.C. was rejected. After going through the order-sheet dated 2.5.1995 and 16.5.1995, I am unable to hold that the present applicant was heard on his application filed under Order 9 Rule 7. C.P.C. True it is that the proceedings dated, 16.5.1995 referred to the arguments of the present applicant but not even a single proceeding recorded by the Rent Controlling Authority shows that the parties were heard on the said application. It is further to be seen that if an application filed under Order 9 Rule 7 C.P.C. is rejected, then too the defendant can take part in the further proceedings of the suit but would not be allowed to challenge the earlier proceedings' already drawn by the Court. In the present case, the learned Court below did not care to see the legal provisions and illegally rejected the application filed by the present applicant. In the opinion of this Court the application filed by the present applicant under Order 9 Rule 7 C.P.C. ought to have been allowed and rejection of the same has in-fact caused material prejudice to the rights of the present applicant. The order dated 16.5.1995 rejecting the applicant's application filed under Order 9 Rule 7 C.P.C. deserves to and is accordingly set aside. The direction against the applicant to proceed ex-parte is set aside. All further proceedings taken after the date when the Court proceeded ex-parte in relation to merits of the matter are set aside. The order dated 16.5.1995 rejecting the applicant's application filed under Order 9 Rule 7 C.P.C. deserves to and is accordingly set aside. The direction against the applicant to proceed ex-parte is set aside. All further proceedings taken after the date when the Court proceeded ex-parte in relation to merits of the matter are set aside. At this stage, learned counsel for the non-applicant submits that if the matter is remitted to the Lower Court giving a right to the present applicant then he be also permitted to lead proper and further evidence. The prayer stands unopposed. therefore deserves to be allowed. The order passed by the learned Rent Controlling Authority is set aside. The matter is remitted to the said Tribunal with a direction that it shall give liberty to the landlord-non- applicant to lead further evidence in support of his claim. If he wish to further examine the non-applicant the Rent Controlling Authority shall give him proper opportunity. The present applicant shall be given opportunity to cross examine the non-applicant and his witnesses. Similarly. he shall also have liberty to lead evidence in support of his pleadings and the non-applicant/landlord would be given proper opportunity to cross- examine the witnesses produced by the present applicant. The parties are directed to appear before the Rent Controlling Authority on 14.2.2000. The authority shall try to dispose of the mailer latest by 30.6.2000. No costs.