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2010 DIGILAW 389 (PNJ)

Vijay Kumar v. Krishan Kumar

2010-01-15

S.D.ANAND

body2010
Judgment S.D.ANAND, J. 1. In order to obtain the setting aside of an exparte decree dated 16.11.2004 of ejectment, the petitioner-tenant filed an application under Order 9 Rule 7 and 13, read with Sec.151 of the Code of Civil Procedure. 2. The landlord-respondent had filed a petition under Sec.13 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as "the act") to obtain ejectment of the petitioner/tenant from the tenanted premises on a plea of non-payment of rent. Further plea in the context was that monthly rent at the rate of Rs.100/- was payable, vide rent note dated 14.9.1988, and that the rent had been paid only upto the period 14.1.2001 and had not been paid thereafter. 3. Exparte proceedings were ordered against the petitioner- tenant on 15.4.2004 when none appeared on his behalf inspite of the effecting of Munadi. The plea raised by the petitioner-tenant was that the factum of impugned exparte order of ejectment came to his notice when he appeared in the course of execution proceedings on 3.6.2005. The execution proceedings were adjourned on that date to 24.8.2005 for filing of reply and objections. However, petitioner/tenant fell ill on the evening of 3.6.2005 and was hospitalsed at taj Hospital and Research Centre, Kela Nagar, Aligarh for the period 5.6.2005 to 8.9.2005. Even after his discharge from the hospital, he remained confined to bed for a week or so. It was thereafter that he contacted his counsel and was informed that exparte order had been granted against him even in the execution proceedings.3. In the application, the petitioner/tenant raised a plea that his absence from the ejectment proceedings on 5.4.2004 and the execution proceedings on 24.8.2005 was beyond his control inasmuch as he had fallen ill on the evening of 3.6.2005. 4. Learned Trial Court negatived the plea raised by the petitioner by observing that the application for the purpose was too belated. In that context, the Court has noticed that the petitioner/tenant had not been able to adduce any substantive evidence to prove his hospitalisation at Taj Hospital and Research Centre, Kela Nagar, Aligarh, for the period 5.6.2005 to 8.9.2005. 5. Learned Trial Court negatived the plea raised by the petitioner by observing that the application for the purpose was too belated. In that context, the Court has noticed that the petitioner/tenant had not been able to adduce any substantive evidence to prove his hospitalisation at Taj Hospital and Research Centre, Kela Nagar, Aligarh, for the period 5.6.2005 to 8.9.2005. 5. Learned Senior Counsel appearing on behalf of the petitioner, vehemently argues that the order granted by the learned Trial Court is harsh and deserves to be invalidated for the simple reason that the petitioner/tenant had been disabled from filing a plea for setting aside of the exparte order only because he fell ill on the evening of 3.6.2005. Qua the exparte order of ejectment proceedings, he argued that no personal service ever came to be effected upon him. It is further argued that tenanted premises being the only source for livelihood of the petitioner/tenant, he would becalms resource-less if he ejected from the premises aforementioned. 6. As already noticed by the learned Rent Controller, the petitioner/tenant had not been able to substantively prove his hospitalisation at Taj Hospital and Research Centre, Kela Nagar, Aligarh. The concerned Doctor, who treated him at that hospital, was not examined at the trial. Infact, none even from the hospital office was examined at the trial. The petitioner/tenant had not been able to even indicate in the course of the statement the date on which the eviction order came to his notice. He also could not give the name of his counsel who represented him in the execution proceedings. There is nothing on record which could be said to be supportive of the self-serving statement of the petitioner/tenant in the context of belated application for setting aside of the exparte order. Further, it is the own averment of the applicant that the impugned exparte ejectment order came to his notice on 3.6.2005 when he entered appearance in the execution proceedings. However, he does not at all indicate when was the service of the execution application effected upon him. He also does not explain why he did not opt to file an application for setting aside of the impugned exparte order on 3.6.2005 itself. Infact, the petitioner/tenant messed up every thing and was totally unable to explain the belated plea for setting aside the exparte order. He also does not explain why he did not opt to file an application for setting aside of the impugned exparte order on 3.6.2005 itself. Infact, the petitioner/tenant messed up every thing and was totally unable to explain the belated plea for setting aside the exparte order. Faced with the predicament of having to explain the factual position, learned Senior Counsel argues that the learned rent Controller could not have ordered the ejectment of the petitioner/tenant from the tenanted premises in view of the statement made by landlord, who is none else or other than his real brother, to the effect that he is ready to accept the rent if it was tendered on the date he was examined in the Court. It would be apparent from the tenor of quoted statement of respondent-landlord that he indicated an inclination to accept the arrears of rent if the same were tendered on the very date he was examined in the Court. That tender did not come to be made on that date. It is neither here nor there for the learned senior Counsel to argue today that the respondent is conscious of the financial incapacity of petitioner/tenant and it was on that account that he did insist upon the tender of arrears of rent being made on that very date. There is no warrant for expounded proposition. The conditional offer made by the respondent-landlord stands quoted in the impugned order. However, there is nothing quoted in the course thereof which could indicate that the respondent was conscious of the accrued financial incapacity of the petitioner/tenant. In the totality of the circumstances of the case, I find no infirmity in the impugned order. The petition shall stand dismissed accordingly.