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2005 DIGILAW 809 (PNJ)

Sant Ram v. Raj Bhardwaj

2005-08-02

S.S.SARON

body2005
Judgment S.S.Saron, J. 1. Copy of the order dated 21.11.2000 (Annexure-P.6) attached with the C.M. is taken on record. The C.M. stands disposed of. C.R. No. 3635 of 2005: This revision petition has been filed Under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (Act for short) by the tenant-petitioner against the order dated 14.6.2005 passed by the learned Civil Judge (Junior Division), Ludhiana whereby the application of the petitioner Under Order 9 Rule 13 of the Code of Civil Procedure (CPC for short) for setting aside the ex parte decree dated 16.1.2003 and the order dated 21.11.2000 passed by the learned Rent Controller, Ludhiana whereby the petitioner was proceeded against ex parte has been dismissed. 2. The landlady-respondent Smt. Raj Bhardwaj filed a petition Under Section 13 of the Act seeking ejectment of the tenant-petitioner from the tenanted premises which is part of property No. B-IV-1544 situated in the area of Mishran Street, Ludhiana as detailed in the head note of the petition. The husband of the landlady-respondent, namely, Ramesh Kant Bhardwaj alias Ranbir (since deceased) rented out the portion of the property to the tenant-petitioner for residential purposes only and a lease agreement was duly executed between him and the tenant-petitioner on 25.6.1977. The rent of the premises was Rs. 150/- per month. Thereafter, the tenant-petitioner is stated to have forcibly occupied some other portion of the property and started claiming the same also as part of the tenancy. The rent was increased to Rs. 400/- per month so as to avoid any dispute in respect of the demised premises. The landlady- respondent filed the ejectment petition alleging that the tenant-petitioner has not tendered arrears of rent and that he was in arrears since 1.1.1993 @ Rs. 100/- p.m. Besides, he was under an obligation to pay house tax. It was also alleged that the tenant-petitioner was guilty of committing change of user. Besides, the demised premises had outlived its age and had become unfit and unsafe for human habitation. Moreover, the demised premises were required by the landlady for her own personal use and occupation and for the family members. 3. It was also alleged that the tenant-petitioner was guilty of committing change of user. Besides, the demised premises had outlived its age and had become unfit and unsafe for human habitation. Moreover, the demised premises were required by the landlady for her own personal use and occupation and for the family members. 3. The tenant-petitioner appeared before the Rent Controller, filed his written statement and stated that rent had been paid up to 31.8.1995 and that the petition has been filed on 9.8.1995, thus no rent was due on the date of filing the petition and the petition was not maintainable. The tenant further alleged that the landlady had wrongly claimed rent since 1.1.1993. It was also alleged that the landlady herself took Rs. 2,000/- as advance rent for five months and gave receipt on the diary of petitioner. Thereafter Rs. 1,200/- was paid to Kiran Bala on 25.8.1995 as rent for June, July and August, 1995. It was also alleged that the landlady had entered into an agreement of sale of the entire property with Smt.Laxmi Devi wife of the tenant-petitioner for the consideration of Rs. 1,75,000/- vide agreement of sale dated 17.6.1994 and an amount of Rs. 20,000/- was paid as earnest money. Smt. Laxmi Devi, it is alleged, has been ready and willing to perform her part of contract and she offered the balance sale consideration to the landlady and she (Smt. Laxmi Devi) was even present in the office of Sub-Registrar on 30.1.1995. It is further alleged that notices dated 17.1.1995 and 23.5.1997 were issued to the landlady-respondent for execution of the sale deed. Thus, virtually the landlady had no right in the property. A replication was filed by the landlady-respondent in which the allegations as made in the written statement were denied and the stand taken in the ejectment petition was reiterated. The learned Rent Controller, framed the following issues: 1. Whether the respondent is in arrears of rent since 1.1.1993, along with house tax as claimed? 2. Whether the respondent has changed user of tenancy premises without the express consent of the petitioner? 3. Whether the premises in dispute has become unfit and unsafe for human habitation? OPA 4. Whether the premises in dispute is required bona fide for personal use and occupation of petitioner and her family as alleged? OPA 5. Whether Sh. 2. Whether the respondent has changed user of tenancy premises without the express consent of the petitioner? 3. Whether the premises in dispute has become unfit and unsafe for human habitation? OPA 4. Whether the premises in dispute is required bona fide for personal use and occupation of petitioner and her family as alleged? OPA 5. Whether Sh. Mukesh Pathak has no authority to file the present eviction application? OPR 6. Whether the respondent has paid rent until August, 1995 as alleged. If so, its effect? OPR 7. Relief. 4. During the pendency of the case the tenant-petitioner absented himself on 21.11.2000. The learned Rent Controller accordingly passed the following order: Present : Counsel for the petitioner. Case called several time since morning, neither respondent nor any body has come present. It is already 3.45 p.m., Accordingly respondent is proceeded against (sic.-ex parte). Now the ex parte evidence to come up on 19.12.2000. Sd/-RC21.11.2000 5. A perusal of the above order shows that the case had been called several times since morning and neither the respondent nor anybody had come present. It was at 3.45 p.m. that the tenant-petitioner was proceeded against ex parte and the case was adjourned for ex parte evidence to 19.12.2000. Ever since then the petitioner was proceeded against ex parte. Ultimately the Rent Controller, Ludhiana on 16.1.2003 allowed the petition and granted two months time to the tenant-petitioner to vacate the demised premises and hand over the possession of the same to the landlady-respondent. The tenant-petitioner, however, did not take any steps to get the ex parte proceedings set aside and thereafter he filed an undated application (Annexure-P.3) for setting aside the ex parte decree dated 16.1.2003. In para-3 of the said application, it is stated that a few days back the tenant-petitioner received summons for execution pending in the Court of Civil Judge (Junior Division), Ludhiana and he then contacted his counsel to enquire into the matter and inspected the file on 1.12.2004 and he came to know about passing of the ex parte order dated 16.1.2003 and further about the order dated 21.11.2000 regarding the ex parte proceedings. On notice of the said application, reply (Annexure-P4) was filed by the landlady-respondent. After considering the evidence and material on record the learned Civil Judge (Junior Division) has vide her impugned order dated 14.6.2005 dismissed the application. 6. On notice of the said application, reply (Annexure-P4) was filed by the landlady-respondent. After considering the evidence and material on record the learned Civil Judge (Junior Division) has vide her impugned order dated 14.6.2005 dismissed the application. 6. Learned Counsel appearing for the petitioner has contended that the application of the petitioner was liable to be allowed and the learned Executing Court has committed a material irregularity in dismissing the application of the petitioner. It is contended that the ex parte order dated 16.1.2003 came to the notice of the petitioner only when execution was filed and no chance has been given to him to lead his evidence. It is further contended that in view of equity in favour of the tenant-petitioner, the petitioner is liable to be granted time to lead his evidence. In support of his contention, he relies on the case of G.P. Srivastava v. R.K. Raizada and Ors. 2000(1) R.C.R. (Rent) 238 (S.C.). 7. I have given my thoughtful consideration to the contentions of the learned Counsel for the petitioner. It is appropriate to note that the tenant-petitioner was proceeded against ex parte vide order dated 21.11.2000 a reference of which has been made above. The tenant-petitioner filed the present petition and initially he did not place on record copy of the order dated 21.11.2000 for which time was taken on 28.7.2005. It is thereafter that the said order has been placed on record in pursuance of C.M. No. l4974-CII of 2005 which has been allowed in the earlier part of this order. In any case, a perusal of the order dated 21.11.2000 shows that the case had been called several times since morning and it is at 3.45 p.m. when no one put in appearance on behalf of the tenant-petitioner that he was proceeded against ex parte. In respect of this position, the tenant-petitioner in his application (Annexure-P.3) for setting aside the ex parte proceedings in para 2, has taken the following stand: 2. That on 21.11.2000 the above said rent petition was fixed for petitioners evidence and AW-2 Mukesh son of Sh. Guru Dutt was to be examined. On that day the applicant-respondent was very much present since from the morning before the predecessor of the Hon ble Court and as the case was fixed for evidence, cross-examination of AW-2. AW-2 Mukesh was not come present on 21.11.2K. Guru Dutt was to be examined. On that day the applicant-respondent was very much present since from the morning before the predecessor of the Hon ble Court and as the case was fixed for evidence, cross-examination of AW-2. AW-2 Mukesh was not come present on 21.11.2K. He was asked to enquire about the further proceedings afternoon of that day and when after lunch session/afternoon, he asked the officials about the further proceedings, it was informed to him that none has appeared on behalf of the petitioner and as such, the case/petition has been dismissed. 8. In terms of the above, the stand of the tenant-petitioner is that on 21.11.2000 he was very much present since morning before the predecessor of the Hon ble Rent Controller and the case was fixed for evidence and cross-examination of Mukesh (AW-2), who was not present. He was then asked to enquire about further proceedings in the afternoon. When after lunch session, he asked about the further proceedings, it was informed that none had appeared on behalf of the landlady and as such her case had been dismissed. This stand apparently does not appear to be correct as it is at 3.45 p.m. that the Court passed the order proceeding ex parte against the petitioner. It is the orders of the Court which are to be taken into account for determination of the matter. The order recorded by the Presiding Officer of the Court as to what had taken place during the trial is conclusive. In fact it is absolute verity and is to be taken precisely as recorded by the Court. The stand taken by the petitioner contrary to what has been recorded by the Presiding Officer is not to be accepted. In fact the petitioner cannot circumvent the order passed by the Curt by taking a contrary stand to that which had been recorded by the court. Therefore, the stand taken by the petitioner which is contrary to the position on record is to be rejected. Another aspect that needs to be considered is that the learned Civil Judge (Junior Division), in her impugned order has noticed the fact that the petitioner did not apply for certified copy of the order dated 21.11.2000 assuming that the case of the landlady-respondent had been dismissed in default. It was as such found that there was no sufficient cause for setting aside the ex parte proceedings. It was as such found that there was no sufficient cause for setting aside the ex parte proceedings. 9. The decision in G.P. Srivastava v. R.K. Raizada and Ors. (supra) referred to by the learned Counsel for the petitioner is inapplicable to the facts of the present case. The Hon ble Supreme Court in the facts and circumstances of the said case had found that even if the parties were found to be negligent, the other side could have been compensated by costs. The said finding was in the facts and circumstances of the said case as the nephew of the counsel for the appellant had died in a road accident on the date of hearing and the appellant himself was not in station on account of his employment. In the case in hand, the tenant-petitioner has not shown any such act and has in fact taken a stand which is contrary to the proceedings that were conducted and recorded by the Presiding Officer on 21.11.2000. 10. In the circumstances, there is no merit in the civil revision petition and the same is accordingly dismissed.