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2002 DIGILAW 383 (PNJ)

Harbans Singh v. Jasbir Singh

2002-04-09

JAGDISH SINGH KHEHAR

body2002
Judgment J.S.Khehar, J. 1. The petitioner is a tenant in one room along with common bath room and toilet on the ground floor of House No. 2236, Sector 21C, Chandigarh. An ejectment petition was filed against him by the respondent- landlord seeking his eviction on the ground of non-payment of rent. It is not disputed that the petitioner was duly served and he engaged a counsel to represent him in the case filed by the respondent-landlord. 2. The Rent Controller required the petitioner-tenant to file his written statement on 4.6.2001. On the same day, he was to tender arrears of rent along with interest and costs etc. It is alleged that the petitioner fell ill and was confined to bed. He, therefore, could not attend to the proceedings before the Rent Controller on 4.6.2001. It is evident from the grounds of Revision filed in the instant case that the petitioner neither filed a written statement on 4.6.2001, nor tendered arrears of rent. Accordingly, the Rent Controller by an order dated 4.6.2001 struck off the defence of the petitioner. 3. The petitioner claims that he is ordinarily a resident of Ferozepur and he resides in the tenanted premises at Chandigarh only for a few days in connection with his political and social activities. He had fallen sick when he was at Ferozepur during May/June, 2001 and on that account, he could neither inform his counsel nor proceed any further with the matter. It is alleged that when his health improved, he came to Chandigarh and learnt about the order passed by the Rent Controller on 4.6.2001. After coming to know that his defence had been struck off, he moved an application under Section 148 of the Code of Civil Procedure for enlargement of time to enable him to file a written statement. The said application was dismissed by the Rent Controller through the impugned order dated 25.10.2001. 4. The contention of the learned counsel for the petitioner-tenant is that the Rent Controller erred in concluding that the provisions of Section 148 of the Code of Civil Procedure were not applicable for enlargement of time for filing the written statement. The said application was dismissed by the Rent Controller through the impugned order dated 25.10.2001. 4. The contention of the learned counsel for the petitioner-tenant is that the Rent Controller erred in concluding that the provisions of Section 148 of the Code of Civil Procedure were not applicable for enlargement of time for filing the written statement. In order to canvass his aforesaid contention, learned counsel for the petitioner relied on Municipal Committee Kharkhoda v. Bhim Singh, 1987 Recent Revenue Reports 405, wherein the trial court had struck off the defence for non-deposit of costs and had also dismissed the application filed under Section 148 of the Code of Civil Procedure as not maintainable. In the aforesaid case this Court expressed its opinion as under :- "The only point which falls for consideration at the present moment, as noticed at the outset, is whether the trial Court had jurisdiction to entertain the application for extending time for payment of costs either under Section 148 and/or Section 151 of the Code. I am of the opinion that an application for recalling the order passed under Section 35-B of the Code is maintainable under Section 151 read with Section 148 of the Code and if the Court is satisfied, it has power to recall the order striking off defence and grant more time for payment of costs." 5. Learned counsel for the petitioner has also relied upon Irothu Mohan Rao v. Akoju Vanajakshi, 1999(2) Recent Civil Reports 358 wherein the Andhra Pradesh High Court, while interpreting Sections 148 and 151 of the Code of Civil Procedure, arrived at the conclusion that a Court had inherent powers to extend time for filing written statement despite the fact that time granted earlier was subject to payment of costs, with an express condition that the petition would stand dismissed if the order was not complied with. Primarily relying upon the provisions of Section 151 of the Code of Civil Procedure a conclusion was drawn in the aforesaid case that a Court has ample inherent powers under Section 151 of the Code of Civil Procedure to extend time so as to prevent miscarriage of justice. 6. Primarily relying upon the provisions of Section 151 of the Code of Civil Procedure a conclusion was drawn in the aforesaid case that a Court has ample inherent powers under Section 151 of the Code of Civil Procedure to extend time so as to prevent miscarriage of justice. 6. Reliance has also been placed on a decision of the Delhi High Court in T.N. Seshan v. United News of India, 1994(2) P.L.R. 71 wherein also the Court was of the view that permission should be granted to file the written statement by compensating the opposite party with costs. It would, however, be pertinent to mention that in this judgment, the court did not consider the ambit and scope of Section 148 of the Code of Civil Procedure. 7. Learned counsel for the petitioner has also placed reliance on Vimalkumar Nathmal Goenka v. Vinod Kumar Nathmal Goenka and others, A.I.R. 1999 Bombay 51, wherein while interpreting the provisions of Order 8 Rule 10 of the Code of Civil Procedure, it was opined by the Bombay High Court that a Court is competent to accept a written statement at any stage before pronouncement of the judgment. Suffice it to state that in the instant judgment also the ambit and scope of Section 148 of the Code of Civil Procedure was not subject matter of consideration. 8. I have heard learned counsel for the petitioner at great length. Although in some of the judgments referred to above, reference has been made to Section 148 of the Code of Civil Procedure, however, in none of the judgments cited above, the aforesaid provision has been extracted or interpreted. In the aforesaid view of the matter none of the judgments relied upon by the learned counsel representing the petitioner can be treated as laying down ratio- decidendi, on the ambit and scope of Section 148 of the Code of Civil Procedure. 9. Before deciding the issue projected by the petitioner on the plea based upon Section 148 of the Code of Civil Procedure, it would be proper for this Court to examine the scope of the aforesaid provision. Section 148 of the Code of Civil Procedure is being extracted hereunder for facility of reference :- "148. Enlargement of time. 9. Before deciding the issue projected by the petitioner on the plea based upon Section 148 of the Code of Civil Procedure, it would be proper for this Court to examine the scope of the aforesaid provision. Section 148 of the Code of Civil Procedure is being extracted hereunder for facility of reference :- "148. Enlargement of time. - Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired." 10. The aforesaid provision entitles a Court to grant further time to a party for doing any act prescribed or allowed by the Code of Civil Procedure. Before Section 148 of the Code of Civil Procedure can be invoked, it is, therefore, essential that the Court must have the authority to grant time; it is only thereupon that it would have authority to grant extension of time. 11. From the sequence of events of the case in hand, narrated above, it is clear that the defence of the petitioner-tenant was struck off on 4.6.2001. An order of the striking off defence of a party has indeed the effect of precluding a party to lead his defence. An other striking off the defence of a party has the effect of placing it in a position as if it had not defended itself at all. Filing of a written statement is an act through which a party lays down the foundations of its defence. If the petitioner-tenant is permitted to file a written statement it would have the effect of negating the order passed by the Rent Controller dated 4.6.2001 by which his defence was struck off. Section 148 of the Code of Civil Procedure is not meant to overcome an order passed by a Court; in the present case the order dated 4.6.2001 striking out the defence of the petitioner-tenant. Till the order dated 4.6.2001 by which the defence of the petitioner-tenant was struck off, is not recalled by the same court, or set aside by a superior Court; the Court would have no authority to grant him (or to extend time) to file a written statement. Till the order dated 4.6.2001 by which the defence of the petitioner-tenant was struck off, is not recalled by the same court, or set aside by a superior Court; the Court would have no authority to grant him (or to extend time) to file a written statement. It is evident from the impugned order passed the Rent Controller dated 25.10.2001 that the order passed by the Rent Controller dated 4.6.2001 whereby the petitioner-tenant was proceeded ex parte and his defence was struck off, has not been challenged by him till date. Thus viewed, it is imperative to conclude that till the order dated 4.6.2001 subsists, the Rent Controller had no authority to either grant time or extend time to enable the petitioner to file a written statement. That being so, the rejection of the claim of the petitioner-tenant by the Rent Controller by the impugned order dated 25.10.2001 is fully justified. 12. For the reasons recorded above, I find no merit in this petition and the same is accordingly, dismissed. There shall, however, be no order as to costs.