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2004 DIGILAW 221 (KAR)

ASHOKA MOTORS, BANGALORE v. H. IBRAHIM

2004-03-19

AJIT J.GUNJAL

body2004
AJIT J. GUNJAL, J. ( 1 ) THE proceedings which has given rise to this revision petition had a chequered career. ( 2 ) I have heard Mr. R. B. Sadashivappa, learned Counsel appearing for the petitioner-tenant and Mr. Vishwanath Shendge, learned Counsel appearing for the respondent-landlord. ( 3 ) FEW facts are necessary to appreciate the rival contentions of both the Counsels. The respondent-landlord initiated eviction proceedings against the petitioner-tenant under Section 21 (l) (h) of the Karnataka rent Control Act, 1961. The case of the landlord is that the petitioner-tenant is in occupation of the shop premises bearing No. 80 (old No. 97/8), Commercial Street, Bangalore, on a monthly rent of Rs. 165/- and the tenancy commences from 1st of each month of English calendar. The eviction proceedings were initiated in HRC No. 8498 of 1980. The said eviction petition was contested by the tenant, inter alia, contending that the requirement of the landlord is neither bona fide nor reasonable. Suffice it to say the Trial Court dismissed the said eviction petition by its order dated 10-2-1987. The landlord dissatisfied with the order passed by the Trial Court, carried the matter in a revision in CRP no. 2588 of 1987. This Court accepted the said revision petition and remitted the matter to the Trial Court for fresh disposal by its order dated 7-1-1992 After the matter was remanded, the Trial Court took up the matter for fresh consideration. The Trial Court once again on assessing the evidence came to the conclusion that the landlord had failed to prove the ingredients of Section 21 (l) (h) of the Karnataka Rent control Act, 1961. The Trial Court dismissed the eviction petition by its order dated 5-8-1993 holding that the requirement of the landlord was neither reasonable nor bona fide and also recorded a finding that the allegation in respect of sub-lease was not proved. The said order of dismissal was once again challenged by the landlord in HRRP No. 987 of 1993. This Court allowed the said revision petition and remitted the matter to the Trial Court for fresh disposal once again by its order dated 9-6-1998. The said order of dismissal was once again challenged by the landlord in HRRP No. 987 of 1993. This Court allowed the said revision petition and remitted the matter to the Trial Court for fresh disposal once again by its order dated 9-6-1998. The observation made by this Court while remitting the matter reads as follows:"for the reasons stated above, this petition is allowed, the order of the learned Judge of Small Causes is set aside and the matter is remanded to his file to enquire afresh the claim of the landlord in the light of the remand order passed by this Court on 7-1-1992 and decide the same after affording such opportunity as the parties may choose in that behalf. Having regard to the fact that the parties have been litigating on this matter from the year 1980, the learned Judge of Small Causes is directed to dispose of the petition within a period of six months from the date of receipt of the order". ( 4 ) AFTER the remand, the Trial Court issued notices to both the parties i. e. , the landlord and the tenant with the hearing date on 25-7-1998. On 25-7-1998 the order sheet discloses that the notice sent to the landlord and to the tenant was not served as the landlord had left the address given in the memorandum of eviction petition and the tenant also was not served as he was not found in the address given. The matter was adjourned to 5-9-1998 and on 5-9-1998 the Trial Court recorded that both the parties and their Counsel were absent and took the arguments as heard and posted the matter for judgment. The order sheet of the trial Court is as follows:"25-7-1998 Notice sent to the petitioner not served as he has left the address. Notice to the respondent also not served as he is not found in the address. To hear by 5. 9. 5-9-1998 Both parties and their Counsels absent. Hence, arguments taken as heard. Judgment by 9. 9. 9-9-1998 Arguments by 26. 9 26-9-1998 Both parties absent. Further, arguments taken as heard. Judgment by 9. 10. 9-10-1988 Not ready. Same by 15. 10. 15-10-1998 Not ready. Same by 20. 10. 20-10-1998 Petition under Section 21 (l) (h) of the KRC Act is allowed. Time is granted to the respondent till 31-3-1999 to vacate the schedule premises. No costs". 9-9-1998 Arguments by 26. 9 26-9-1998 Both parties absent. Further, arguments taken as heard. Judgment by 9. 10. 9-10-1988 Not ready. Same by 15. 10. 15-10-1998 Not ready. Same by 20. 10. 20-10-1998 Petition under Section 21 (l) (h) of the KRC Act is allowed. Time is granted to the respondent till 31-3-1999 to vacate the schedule premises. No costs". Eventually the Trial Court accepted the eviction petition under Section 21 (l) (h) of the Karnataka Rent Control Act by its order dated 20-10-1998 and certain time was granted to the tenant to vacate the shop premises. This order of allowing the eviction petition ex parte was sought to be reviewed by the tenant by filing an application under Order 9, Rule 13 of the Code of Civil Procedure which came to be numbered as miscellaneous No. 10007 of 1999. The tenant simultaneously challenged the said order in HRRP No. 244 of 1999. Insofar as HRRP No. 244 of 1999 is concerned, the tenant filed a memo in the said case. To satisfy the factual position in respect of the contents of the memo, the records in hrrp No. 244 of 1999 were summoned. The memo reads as under: "the petitioner in the above case prays that this Hon'ble Court be pleased to permit him to withdraw the above revision petition without prejudice to his right to prosecute the Miscellaneous No. 10007 of 1999 pending on the file of the City Small Causes Judge, mayo Hall, Bangalore, in the interest of justice and equity". ( 5 ) NOTICE was issued on the miscellaneous proceedings to the landlord. The landlord entered appearance and objected to the said application. In the said miscellaneous proceedings, the landlord maintained an application under Section 151 of the CPC and prayed for framing a preliminary issue with regard to the maintainability of the miscellaneous petition and sought for disposal of the said proceedings on the said preliminary issue. This application was filed by the landlord on 7-8-2000. The tenant filed his objections to the said application on 8-11-2000. The Trial Court has framed the following points for consideration:"1. Whether the respondent has shown reasonable grounds to allow the present I. A. ? 2. This application was filed by the landlord on 7-8-2000. The tenant filed his objections to the said application on 8-11-2000. The Trial Court has framed the following points for consideration:"1. Whether the respondent has shown reasonable grounds to allow the present I. A. ? 2. What order?" ( 6 ) THE Trial Court on consideration of the rival contentions came to the conclusion that the application filed by the landlord under Section 151 of the CPC has substance and allowed the said application. The resultant effect was that the main petition i. e. , miscellaneous petition filed under Order 9, Rule 13 by the tenant was dismissed as not maintainable. The reasons for acceptance of the application filed by the respondent-landlord are: (1) that the Presiding Officer waited till 20-10-1998; neither the petitioner nor the respondent appeared before the court during the said period; (2) that the order sheet dated 25-7-1998 discloses that the notice sent to the petitioner (landlord) was not served as he had left the address and notice sent to the respondent (tenant) also was not served as he was not found in the address. In view of these two anomalies and also in view of the direction issued by this Court while remitting the matter that it shall be disposed of within a stipulated time, the Presiding Officer had no option but to dispose of the main matter on 20-10-1998 on the basis of the material available on record at that stage. The Trial Judge has also found that after the matter was remanded neither the landlord nor the tenant led any further evidence or submitted further arguments. According to him, such being the case, the order questioned in the miscellaneous proceedings does not amount to an ex parte order and he came to the conclusion that it is not maintainable and has dismissed the miscellaneous petition. The said order is under challenge before me. ( 7 ) MR. R. B. Sadashivappa, learned Counsel appearing for the tenant submits that on the very finding recorded by the Trial Court it is apparent that both the landlord as well as the tenant were not served and the Trial Court has proceeded to pass an ex parte order allowing the eviction petition. ( 7 ) MR. R. B. Sadashivappa, learned Counsel appearing for the tenant submits that on the very finding recorded by the Trial Court it is apparent that both the landlord as well as the tenant were not served and the Trial Court has proceeded to pass an ex parte order allowing the eviction petition. He also submits that in view of the fact that the tenant was not served and the eviction proceedings were not concluded without proper service of notice, the eviction order would amount to an ex parte order and the petition under Order 9, Rule 13 would be maintainable. He drew my attention to the provisions of Order 9, Rule 13 and submitted that the order under revision calls for interference as the entire proceedings culminating into eviction order are without notice to him and thus opposed to principles of natural justice. Mr. Sadashivappa, learned Counsel for the petitioner-tenant has relied on decisions in Jang singh v Brij Lal and Others, Arjun Singh v Mohindra Kumar and keval Ram v Smt. Ram Lubhai and Others and a Division Bench ruling of this Court in Official Receiver, Bangalore v Sellamma and Others. ( 8 ) MR, Vishwanath Shendge, learned Counsel appearing for the respondent-landlord opposes the present petition tooth and nail. He submits that the order passed by the Trial Court on the eviction proceedings is not an ex parte order. He further submits that the said order of eviction having been challenged by the tenant in HRRP No. 987 of 1993 and that having been dismissed notwithstanding certain observations made during the course of the order; the case of the tenant squarely falls under explanation to Order 9, Rule 13. According to him, the eviction order having attained finality by way of dismissal, it was not open to the tenant to further prosecute the miscellaneous proceedings. He relied on two judgments of the Hon'ble Supreme Court in Rani Choudhury v Lt. Col. Suraj Jit Choudhury and P. Kiran Kumar v A. S. Khadar and Others, wherein the Hon'ble Supreme Court had an occasion to deal with identical situation where parallel proceedings were initiated by the aggrieved person both under Order 9, Rule 13 as well as in the superior Court and the superior Court having considered the order it was not open for the petitioner to prosecute and continue the miscellaneous proceedings. He would submit that the explanation to order 9, Rule 13 would squarely attracts and the tenant having invited an order of dismissal at the hands of this Court, it is not open to continue the said miscellaneous proceedings. Another contention raised by the learned Counsel appearing for the landlord is that the order passed by the eviction Court cannot be treated as ex parte. According to him, the proceedings having been initiated in the year 1980 and having been continued in the Court below and the orders of remand by this court, it has got to be presumed that the tenant had notice of this proceedings after the matter was remanded by this Court by the order dated 9-6-1998. In view of this, he submits that the tenant had notice of this proceedings, and it cannot be termed that he was not informed of the proceedings and notwithstanding the fact that the summons issued by the Trial Court having not been served on him, it cannot be termed as ex parte order which would enable him to maintain a petition under order 9, Rule 13 for setting aside the ex parte order. Mr. Vishwanath shendge would submit that in view of the fact that a time frame was fixed by this Court while remitting the matter, the Trial Court had no option but to dispose of the eviction proceedings notwithstanding the fact neither the landlord nor tenant were served since, according to him, both the parties had knowledge of the said proceedings. He further submits that nothing prevented the parties from ascertaining the date on which the matter was listed. The learned Counsel would submit that the miscellaneous proceedings were presented in the month of March 1999 for setting aside the ex parte order. Since the ex parte order was not challenged within a period of 30 days, he would submit that the petition itself was not maintainable. Mr. Vishwanath Shendge would submit that in view of the fact that both sides had concluded their evidence it was not necessary for the Trial Court to issue notice to the parties and it was open to the Trial Court to consider the matter on the existing material on record. ( 9 ) KEEPING these rival submissions in mind, the following point arises for consideration:1. ( 9 ) KEEPING these rival submissions in mind, the following point arises for consideration:1. Whether the order passed in HRC No. 8498 of 1980 amounts to an ex parte order with reference to the explanation to Order 9, rule 13?2. Whether order under revision requires interference? for convenience both the points are considered together. ( 10 ) BEFORE adverting to the rival submissions of both the counsels, it is necessary to look into the provisions of Order 9, Rule 13, which reads as follows:"setting aside decree ex parte against defendant. In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such tenns as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Explanation. Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting, aside that ex parte decree". ( 11 ) ORDER 9, Rule 13 is on the statute mainly to safeguard the interest of such persons against whom an ex parte decree/order has been passed and in such situation an aggrieved person can make an application for setting aside the said ex parte decree/order. ( 11 ) ORDER 9, Rule 13 is on the statute mainly to safeguard the interest of such persons against whom an ex parte decree/order has been passed and in such situation an aggrieved person can make an application for setting aside the said ex parte decree/order. But, however, such an application can be granted only on certain conditions: One is that if the aggrieved party satisfies the Court that summon was not duly served or that he was prevented by sufficient cause from appearing when the suit was called for hearing; in these circumstances the Courts are bound to set aside the ex parte decree. But however the second proviso was added by an amendment Act 104 of 1976. Under the second proviso it is catitioned that an ex parte decree cannot be set aside merely if there is an irregularity in the service of summons if the Courts are satisfied that the aggrieved party had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. By virtue of the said amended Act once again an explanation was added. Under the said explanation it is stated where an aggrieved party challenges an ex parte decree in a superior forum and has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal - no application under Order 9, Rule 13 would be maintainable to set aside an ex parte decree. The reason for adding this explanation is only to see that the aggrieved party shall not have a two-pronged attack in two different Courts for the same relief. ( 12 ) IN the instant case, it is noticed, after the matter was remanded by this Court to the Trial Court for fresh adjudication, the order extracted above would clearly discloses that the Trial Court was directed"to enquire afresh into the claim of the landlord in the light of the remand order passed earlier i. e. , on 7-1-1992 and decide the same after affording such opportunity as the parties may choose in this behalf. A reading of this operative portion of the order of remand would clearly indicate that the Trial Court was expected to give an opportunity to both the parties as they may choose in that behalf it could encompass that they may indeed lead fresh or further evidence and supplement their earlier stand. A reading of this operative portion of the order of remand would clearly indicate that the Trial Court was expected to give an opportunity to both the parties as they may choose in that behalf it could encompass that they may indeed lead fresh or further evidence and supplement their earlier stand. As noticed the notice issued to both the parties, the landlord as well as the tenant was not served at all which would mean that the petitioner-tenant would fall under the first category of Order 9, rule 13, i. e. , the summons were not duly served and that he was prevented by sufficient cause from appearing when the suit was called for hearing. It is obvious that when the summons were not served on the tenant it would be a sufficient cause for not appearing when the matter was called for hearing. Insofar as the second proviso is concerned, it was incumbent upon the landlord to establish that there was no irregularity in the service of summons. This would arise only if there is any irregularity in the service of summons. It is seen that in the first place the tenant was not served at all. In the circumstances, the question of irregularity in the service of summons would not arise at all and the tenant did not have a notice of the date of hearing of the matter and answer the landlord's claim. ( 13 ) THE trend of Mr. Vishwanath Shendge's submission is that the tenant had challenged the said ex parte decree in HRRP No. 244 of 1999. When the tenant was confronted with the fact that he cannot challenge the same order before two separate forum, the tenant chose to file a memo seeking withdrawal of the said revision petition. This Court permitted the tenant to withdraw the said petition in the following terms:"the Counsel for the petitioner filed a memo praying for dismissal of this HRRP without prejudice to his petition filed before the trial Court in Miscellaneous No. 10007 of 1999. This petition is accordingly dismissed". ( 14 ) EVEN though this Court in the operative portion has used the word "dismissed", that cannot be presumed than the revision petition has been disposed of on any other ground. This petition is accordingly dismissed". ( 14 ) EVEN though this Court in the operative portion has used the word "dismissed", that cannot be presumed than the revision petition has been disposed of on any other ground. It is necessary to note that mere filing of a revision petition in this Court did not take away the jurisdiction of the Trial Court to entertain and dispose of the application for setting aside an ex parte decree. It is only in cases in which the Trial court order is merged with the order of the Appellate Court by reversal or confirmation wherein the Trial Court is precluded from setting aside the ex parte decree. Where the Trial Court order did not merge with the appellate Court order, the Trial Court was at liberty to proceed with the application for setting aside the ex parte decree. The instances are, when the appeal is dismissed for default or where it was dismissed as having been abated by reason of omission to implead the legal representatives of a deceased or it was dismissed as barred by limitation. The explanation as stated was added to prevent two pronged attack on the decree i. e. , by preferring a miscellaneous petition under Order 9, Rule 13 for setting aside ex parte and by filing an appeal in the superior Court against the said order. A dismissal of an appeal/petition on any ground other than its withdrawal constitute the jurisdiction of the Trial Court to set aside the ex parte decree. In view of the introduction of explanation to Order 9, Rule 13 to set aside the ex parte decree, an application would be maintainable where the aggrieved party filed an appeal and the appeal was disposed of on any other ground other than withdrawal. In the case on hand, it is seen that before the matter could be adjudicated on merits, the tenant thought it prudent to withdraw the said revision petition reserving liberty to prosecute the miscellaneous petition which he had filed under Order 9, Rule 13 for setting aside the ex parte decree. The order came to be passed only on the basis of the memo. The order of dismissal of the revision petition as withdrawn, does not fall under any of the categories as enumerated under explanation to order 9, Rule 13. The order came to be passed only on the basis of the memo. The order of dismissal of the revision petition as withdrawn, does not fall under any of the categories as enumerated under explanation to order 9, Rule 13. It is in order simpliciter passed on a memo filed by the tenant to withdraw the petition and to prosecute the miscellaneous application. This Court having accepted the said memo, it cannot be said that the order passed in the Rent Control proceedings had merged with the order passed by this Court permitting the tenant to withdraw the revision petition. The Hon'ble Supreme Court in identical situation in the case in Rani Choudhury, supra, has observed as follows:"it has been observed earlier that a defendant intending to avoid an ex parte decree could apply to the Trial Court for setting it aside and could also appeal to a superior Court against it. The courts were open to a duplication of proceedings, and although the immediate relief claimed in the two proceedings was not identical both ultimately aimed at a re-decision on the merits. Moreover, on the two proceedings initiated by the defendant, the application under Rule 13 of Order 9 would subsequently become infructuous if the appeal resulted in a decree superseding the trial Court decree. It was also possible to envisage the appeal becoming infructuous if the Trial Court decree was set aside on the application under Rule 13 of Order 9 before the appeal was disposed of The plaintiff was in the unfortunate position of being dragged through two Courts in simultaneous proceedings. Public time and private convenience and money was sought to be saved by enacting the Explanation. The Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law. By enacting the explanation, Parliament left it open to the defendant to apply under Rule 13 of Order 9 for setting aside an ex parte decree only if the defendant had opted not to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was tantamount to effacing it. The withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer an adjudication by the Appellate Court on the merits of the decree or have the decree set aside by the trial Court under Rule 13 of Order 9. The legislative attempt incorporated in the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him. but allowed the appeal to be disposed of on any other ground, he was denied the right to apply trader Rule 13 of Order 9. The disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation". ( 15 ) THE same view is reiterated in the decision of the Apex Court in p. Kiran Kumar case, supra, wherein the Apex Court has followed the earlier decision in Rani Choudhury's case, supra. ( 16 ) A reading of the proceedings of the Rent Control Court after the order of remand would clearly show that the fault lie with the Court for not noticing that both the landlord as well as the tenant were not served. It was incumbent upon the Trial Court to await notice or issue fresh notice to the parties so that they can appear and participate in the proceedings. It is to be noticed that the act of a Court should not harm the litigant if a litigant is guided by the proceedings in the Court. If the mistake has been committed by the Court in not noticing that the parties are not served the Court cannot hold him responsible for the mistake which it itself had caused. The Hon'ble Supreme Court in Jang singh's case, supra, has summed up the maxim actus curiae thus:"if the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Court should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. There is no higher principle for the guidance of the Court than the one that no act of Court should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim "actus curiae neminem gravabit". It is rather unfortunate that the Court did not wait for the parties to be served. It appears it was swayed by the direction issued by this Court while remitting the matter that the proceedings will have to be disposed of within a period of six months. But however it is seen that the Trial court has disposed of the eviction proceedings within a period of two and half months without even waiting for the proper service of notice. The construction which is sought to be placed on the scope of Order 9, rule 13 by Mr. Vishwanath Shendge would be disastrous to innocent persons who might not have been served with the notice at all. In this regard an observation is made by this Court in the decision in sellamma's case, supra, which reads thus:"we rest our judgment on a higher principle which is fundamental to administration of justice that no person shall be prejudiced by a decision which is given without due notice of the proceedings in which such a decision is rendered and without sufficient opportunity to defend himself in those proceedings". In view of the law laid down by the Apex Court in the decision referred to above and the observation made by this Court, the contentions of Mr. Vishwanath Shendge do not merit any consideration at all. ( 17 ) IN view of what is stated above, the order under revision passed by the Trial Court dated 8-4-2002 in Miscellaneous No. 10007 of 1999 is wholly unsustainable and is liable to be set aside. The question now is whether the matter requires to be remitted to the Trial Court for disposal of the main petition as it has proceeded to dispose of the miscellaneous proceeding only on the ground that the proceedings are not at all maintainable in view of on an application made by the respondent herein to try the question of maintainability as a preliminary issue. The facts narrated above would clearly indicate that no useful purpose would be served by remitting the matter to the Trial court to hear the miscellaneous proceedings on merits. The facts would speak for themselves that the petitioner as well as respondent were not served with the notice of the proceedings at all and the Trial Court has proceeded to pass the eviction order without even hearing the petitioner and the respondent. The fact that no notice was served on the petitioner, obviously it falls under one of the ingredients of Order 9, Rule 13 of the code of Civil Procedure and that the ex parte order is liable to be set aside. ( 18 ) IN view of what is stated above, this revision petition is allowed. The order dated 8-4-2002 passed by the Trial Court in Miscellaneous No. 10007 of 1999 is set aside and the miscellaneous proceedings are allowed and the ex parte eviction order passed by the Trial Court in HRC No. 8498 of 1980 is set aside. The Rent Control Coxirt shall now proceed to deal with the matter afresh. As the matter is pending since 1980, the rent Control Court is directed to dispose of the eviction, petition of the respondent within a period of six months from the date of receipt of this order. The parties are directed to appear before the Trial Court on 12-4-2004. Petition disposed of accordingly. No costs. --- *** --- .