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2002 DIGILAW 1188 (PNJ)

Mam Raj v. Suresh Chand

2002-11-13

SATISH KUMAR MITTAL

body2002
Judgment Satish Kumar Mittal, J. 1. Mam Raj, tenant herein, had filed the present revision petition against the order of ejectment passed against him by both the Courts below. He died during the pendency of this revision petition and his legal representatives have been impleaded vide order dated September 23, 2002, passed by this Court. 2. The brief facts of the case are that on 13.6.1986, Suresh Chand and Naresh Kumar, respondents-landlords herein, filed an ejectment application against the tenant under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act) for his ejectment on the ground of non-payment of rent from 1.8.1983 to 31.5.1986. The rate of rent was claimed as Rs. 40/- per month plus the house tax. Pursuant to the notice issued by the trial court, the tenant appeared and contested the ejectment application. Though, he admitted the rate of rent as Rs. 40/- per month, but denied the house tax, as claimed by the landlords. However, it was submitted that he had already paid the rent up to 31.5.1986 and no rent is due towards him. He, therefore, did not tender any amount of rent on the first date of hearing. On the pleadings of the parties, the following issues were framed by the learned trial court on 25.4.1987:- 1. Whether the respondent is in arrears of rent w.e.f. August, 1983 to onwards, if so to what effect? OPA 2. Whether the petitioner is entitled for house tax, if so its effect? OPA 3. Relief. Subsequently, on 6.11.1987, the following additional issue No. 2-A was framed:- 2-A. Whether the respondent has paid the arrears of rent as claimed by the landlord? OPR. 3 Thereafter the case was adjourned to 27.1.1988 for evidence of the landlords. On that day, no witness was examined and the Case was adjourned to 19.4.1988 on which date again no witness was examined by the landlords and the case was adjourned to 5.8.1988. On that day, neither the tenant nor his counsel was present and he was proceeded against ex-parte and landlords examined one witness as AW-1 and the following order was passed; "Case called several times since morning. It is already 12.30 P.M. None has put in appearance on behalf of the respondent. The respondent is therefore proceeded against ex-parte. One AW is present and recorded. Request is made for date. It is already 12.30 P.M. None has put in appearance on behalf of the respondent. The respondent is therefore proceeded against ex-parte. One AW is present and recorded. Request is made for date. To come up on 16.8.88 for remaining exparte evidence of the applicant." 4. On 16.8.1988, no witness of the landlords was present and the case was again adjourned to 31.8.1988. In the meanwhile, on 19.8.1988, the tenant filed application for setting aside ex-parte order dated 5.8.1988. In that application, he explained that he has engaged Shri P.L. Bardwaj as his counsel had told him that he need not come in the Court on every date and as and when his presence will be necessary, he will be informed. His counsel did not inform him about the said date i.e. 5.8.1988. He is poor and illiterate person and was kept in dark by his counsel. He further stated that on 12.8.1988, when he came to the Court in connection with another case filed by the landlords, in which he had tendered the rent and asked his counsel about the present case, but no satisfactory reply was given to him. Therefore, on 15.8.1988, again he met his counsel at Saharanpur and enquired about his case, but still no satisfactory reply was given to him. Thereafter, the tenant engaged another counsel and after enquiry, he came to know that he was proceeded against ex-parte on 5.8.1988. He, then, immediately got prepared an application on 19.8.1988 and filed the same in the learned trial Court. The said application was duly supported by the affidavit of the tenant. On 31.8.1988, notice of the said application was given to the landlords, who filed reply, which was neither verified nor supported by an affidavit. Thereafter, on 24.4.1989, the application for setting aside the ex-parte order was dismissed. The operative part of the said order reads as under:- "After hearing the arguments of learned counsel for both the parties, I have come to this conclusion that plea taken by the applicant/respondent regarding his non appearance on the date fixed is concocted one and is not supported by any cogent evidence. Even if it be admitted that his counsel has given an assurance for not attending the court on each date, rather, then, the applicant/respondent is to be vigilant about the case. Even if it be admitted that his counsel has given an assurance for not attending the court on each date, rather, then, the applicant/respondent is to be vigilant about the case. So, in view of the above discussion I have come to this conclusion that the stand taken by the applicant/respondent is vague and baseless and he has failed to give satisfactory reason for his absence. Thus, in these circumstances, I hereby dismiss the present application." 5. On the same day, the ejectment application filed by the landlords was allowed and the tenant was ordered to be ejected from the demised premises. 6. Against the aforesaid order of ejectment, the tenant filed an appeal before the learned Appellate Authority, in which he also challenged the order, vide which his application for setting aside the exparte proceedings was dismissed as well as the order of his eviction. The said appeal of the tenant was dismissed on 17.3.1990, on the basis of written arguments supplied by the parties. This fact is clear from the following two Zimni orders, passed by the learned Appellate Authority: Present: Sh. S.P. Chawla, proxy counsel for Sh. R.D. Ahluwalia, counsel for the appellant. Sh. Ajay Jain proxy counsel for Sh. M.G. Bagga, counsel for the respondent. The members of the Bar are on strike. The parties are afforded opportunity to file written arguments with prior copy to the opposite counsel. The appellate shall place written arguments on file on 7.3.1990 and reply arguments shall be filed on 14.3.1990. To come up on 17.3.1990 for orders on merits. Sd/- Appellate Authority/12.2.1990. Present: None. As per separate judgment of the day this appeal is rejected as dismissed with costs. Counsel fee is assessed at Rs. 200/-. The tenant is granted 60 days time to vacate the premises. The file be consigned to the record room after due compliance. Sd/- Appellate Authority Ambala.17.3.1990. 7. The learned Appellate Authority has held that the onus to prove the payment of rent was on the tenant, which he has failed to discharge. Therefore, it was rightly held by the Rent Controller that the tenant is in arrears of rent. Since he did not tender rent on the first date of hearing, therefore, he is liable to be ejected. Therefore, it was rightly held by the Rent Controller that the tenant is in arrears of rent. Since he did not tender rent on the first date of hearing, therefore, he is liable to be ejected. Regarding dismissing the application filed by the tenant for setting aside ex-parte proceedings against him, the learned Appellate Authority has observed that the tenant did not agitate or challenge the order dated 24.4.1989, vide which his application for setting aside ex-parte proceedings was dismissed, either in the grounds of appeal or by way of written arguments. He further observed that the explanation of the tenant is unbelievable as he did not engage any Advocate before filing the application for setting aside ex-parte proceedings against him. 8. Against the aforesaid order of the learned Appellate Authority, the present revision petition has been filed. 9. I have heard learned counsel for the parties and have perused the records of the Courts below. I am of the opinion that the ejectment orders passed by the Courts below against the tenant are liable to be set aside. The order dated 24.4.1989, vide which application filed by the tenant for setting aside the order dated 5.4.1988, proceedings him ex-parte, was dismissed, is not sustainable in the eyes of law. It is clear from the various Zimni orders that the tenant engaged Shri P.L. Bardwaj as his counsel, who filed memo of appearance on 23.12.1986 and put in appearance. Thereafter, he appeared on various dates in the cases, but on 5.8.1988 he was absent and the tenant was proceeded against ex-parte and after examining one witness of the landlords, case was adjourned to 16.8.1988 for remaining evidence of the landlords. On that day, no witness was present and the case was again adjourned to 31.8.1988 for remaining evidence. In the meanwhile, the tenant filed an application for setting aside the ex-parte proceedings along with an affidavit explaining the reasons for his non-appearance on 5.8.1988. That application was filed within limitation and normally such application is allowed, if filed within limitation and is supported by an affidavit. Reply to the application was neither verified nor supported by an affidavit. Therefore, there was no reason with the learned Rent Controller to disbelieve the explanation given by the tenant. 10. That application was filed within limitation and normally such application is allowed, if filed within limitation and is supported by an affidavit. Reply to the application was neither verified nor supported by an affidavit. Therefore, there was no reason with the learned Rent Controller to disbelieve the explanation given by the tenant. 10. I find no force in the contention raised by learned counsel tor the landlords that the tenant deliberately absented and the order of dismissing his application for setting aside the ex-parte proceedings is fully justified and legal. The authorities, relied upon by him, i.e. Darahan Singh of Karnal v. Shri Ram Saup Gupta of Karnal, 1989 H.R.R. 394 and The Punjab State Co-operative Bank Ltd, and Anr. v. Baldev Krishan, (1994-1)106 P.L.R. 627, are not relevant and applicable to the facts and circumstances of the present case. 11. I have also considered the reasoning given by the learned Rent Controller for dismissing the application filed by the tenant for setting aside the ex-parte proceedings against him and the same are found to be not sustainable. Rather, these are based on conjectures. It is well settled law that the Court should not adopt hyper-technical approach, particularly for setting aside exparte order. When the case was going on and the matter was fixed for evidence of the landlords, there was no reason for dismissing the application of the tenant for setting aside the ex-parte proceedings and to afford him opportunity to defend the ejectment application filed against him. There is no allegation that the absence of the tenant on 5.8.1988 was intentional or mala fide with an intention to delay the proceedings. The reasoning given by the learned Rent Controller that the tenant did not engage the counsel before filing the application for setting aside the ex-parte proceedings is factually incorrect. Merely because Vakalatnama was not filed and only memo of appearance was filed, it does not mean that the tenant did not engage any Advocate. However, the Honble Supreme Court in G.P. Sivastava v. R.K. Raizada and Ors., (2000-2)125 P.L.R. 544 (S.C.) has held that while considering the matter regarding setting aside the ex-parte order, the Court should not adopt hyper-technical approach. Where a party approaches the Court immediately within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. Where a party approaches the Court immediately within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. Furthermore, on 24.4.1989, application of the tenant for setting aside the ex-parte proceedings was dismissed and on the same very day, the ejectment order was passed against him by the learned Rent Controller only on the basis of the ex-parte statement of one witness. The tenant was not provided any opportunity to challenge the order dismissing his application. In appeal, the learned Appellate Authority has also not provided a sufficient opportunity of hearing to the tenant. Only on the basis of written submissions, the appeal was dismissed and it was observed that in the grounds of appeal, the tenant did not challenge the order dated 24.4.1989, vide which his application for setting aside the ex-parte proceedings was dismissed. This is factually incorrect. I have perused the grounds of appeal filed before the learned Appellate Authority, in which the tenant has specifically challenged the said order. I am of the opinion that the application of the tenant for setting aside the ex-parte proceedings was wrongly dismissed by the learned Rent Controller, who has failed to exercise his jurisdiction, which vested in him. The order of dismissal of this application of the tenant has caused serious prejudice to him, as he could neither cross-examine the sole witness of the landlord nor could lead evidence to prove that he has already paid the entire rent and nothing was due towards him. 12. In view of the aforesaid discussion, I allow this revision petition with no order as to costs and set aside the impugned order of ejectment passed by the Courts below and remit the matter to the learned Rent Controller, Jagadhri with a direction to proceed with the case from the stage the tenant was proceeded against ex-parte. Since the ejectment petition was filed in the year 1986 and the matter is pending since then, 1 direct the learned Rent Controller to decide this case within a period of nine months. The parties are directed to appear before the learned Rent Controller, Jagadhri on 3.12.2002.