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2013 DIGILAW 1153 (PNJ)

Anil Gulati v. Anshul Kathuria

2013-08-26

RAKESH KUMAR GARG

body2013
Rakesh Garg, J. 1. This judgment shall dispose of two revision petitions i.e. Civil Revision No. 3962 of 2013 and Civil Revision No. 5142 of 2013 as the same have arisen out of one eviction petition to evict the petitioner initiated by the respondent-landlord against the petitioner and the impugned order in both these petitions was passed by the Appellate Authority vide one common order. Respondent-landlord-Manohar Lal Kathuria (since deceased) now being represented through respondent filed eviction petition against the petitioner on the ground that petitioner was in arrears of rent and has not opened the shop for last more than one year, which is lying closed and also on the ground that he needs the same for his personal bona fide necessity to settle his son in a business. 2. Upon notice, petitioner-tenant appeared and filed written statement raising various preliminary objections. On merits, it was submitted that he had taken the premises in dispute on rent in March, 1998 from Lakhmi Chand Ratra on a monthly rent of ` 450/- which was inclusive of house tax etc. The respondent-landlord had purchased the said shop in the year 1991 and become the landlord thereof. Though there was no agreement in writing for enhancement of the rent, however, the rent was being enhanced from time to time with the consent of both the parties and the last rent paid by the respondent was ` 510/- per month which he is regularly tendering. However, respondent is adamant to increase the rent exorbitantly which is the only bone of contention between the parties. Petitioner has further pleaded that he had already tendered the existing rent to the respondent which was accepted by him and thus, no ground of non-payment of arrears of rent was not available. It was further submitted that premises in dispute is a non-residential premises, where he was doing the work of electronic goods and using the demised shop as his office-cum-store. The landlord was not allowing him to restore the electricity connection. The landlord was neither allowing him to repair wooden door nor to install a shutter at the main entrance resulting into insecurity of his goods. The landlord was not allowing him to restore the electricity connection. The landlord was neither allowing him to repair wooden door nor to install a shutter at the main entrance resulting into insecurity of his goods. It was further denied that shop in question was lying locked and has not been opened for the last more than one year and it was submitted that he is carrying on job work of repairing of private computers and being alone in the business had to attend the complaints and for that purpose he had no alternative except to lock the shop while attending the complaints. It was further stated that respondent was not in bona fide need of the shop for his son as the only son of the respondent was property dealer and was carrying on his business in the name of Kathuria Estate Agency from Shop No. 2-B/63, NIT Faridabad. Another shop was being run by the respondent himself and one more shop has been given on rent. Other adjacent shop has been got vacated from the previous tenant. With these submissions and controverting the case of respondent, dismissal of the suit has been prayed for. 3. On the basis of pleading of the parties, following issues were framed:-- 1. Whether the petitioner is entitled to an order of ejectment in respect of the premises in dispute on the grounds mentioned in the petition? OPP 2. Whether the petition is not maintainable in the present form? OPR 3. Whether the petitioner has no cause of action to file the present petition? OPR 4. Relief." 4. During the pendency of the petition, when the case was at the stage of evidence, petitioner failed to appear and he was proceeded against ex parte vide order dated 21.12.2011. 5. In his ex parte evidence, Anshul Kathuria, son of the respondent Manohar Lal appeared in the witness box as P.W. 1 and tendered his affidavit Ex. PW1/A supporting his claim and ex parte evidence of the respondent was closed. 6. Thereafter, when the case was fixed for ex parte argument, an application for setting aside the ex parte order dated 21.12.2011 was moved by the petitioner submitting that his wife was seriously III and his counsel was out of station due to personal work. PW1/A supporting his claim and ex parte evidence of the respondent was closed. 6. Thereafter, when the case was fixed for ex parte argument, an application for setting aside the ex parte order dated 21.12.2011 was moved by the petitioner submitting that his wife was seriously III and his counsel was out of station due to personal work. On 13.02.2012 when he contacted his counsel and enquired about the case, then he came to know that the case been proceeded against ex-parte. It was further submitted that his absence as well as of his counsel was neither intentional nor willful and thus, prayer was made to set aside the order dated 21.12.2011. 7. The respondent contested the aforesaid application and it was submitted that after 21.12.2011, the case was adjourned to 14.1.2012, then to 2.2.2012, 7.2.2012 and 14.2.2012 but there was no explanation on the part of the petitioner why he or his counsel failed to appear on all these dates. Even the application was neither supported by any medical certificate of his wife nor with the affidavit of previous counsel of the petitioner and thus, prayer was liable to be rejected. 8. The Rent Controller vide order dated 22.2.2012 after hearing both the sides dismissed the application of the petitioner for setting aside the ex parte order dated 21.12.2011. Against the aforesaid order, petitioner filed an appeal being appeal No. 4 of 2012 before the Appellate Authority. 9. In the meantime, eviction petition filed on behalf of the respondent-landlord for eviction of the petitioner was allowed by the Rent Controller vide his judgment dated 27.2.2012 returning its findings under issues in favour of the landlord and petitioner was directed to vacate the shop in dispute and to hand over the vacant possession of the demised premises to the respondent-landlord. Aggrieved from the order of eviction dated 27.02.2012, petitioner filed an appeal bearing No. 9 of 2012. 10. Both these appeals have been dismissed by the Appellate Authority vide one common judgment which is impugned in these revision petitions. It may further be noticed that there was a delay of 29 days in filing the appeal against the order of eviction dated 27.02.2012 which was condoned by the Appellate Authority. 10. Both these appeals have been dismissed by the Appellate Authority vide one common judgment which is impugned in these revision petitions. It may further be noticed that there was a delay of 29 days in filing the appeal against the order of eviction dated 27.02.2012 which was condoned by the Appellate Authority. However, while rejecting Appeal No. 4 of 2012 against ex parte order dated 22.2.2012, the Appellate Authority held that the petitioner was very much in the knowledge of the eviction proceedings and has failed to give any satisfactory explanation with regard to non appearance of petitioner as well as of his counsel on 21.12.2011 and thus rejected his prayer holding that a litigant shall be diligent of his own case. So far as the passing of ex parte judgment dated 27.2.2012 whereby eviction of the petitioner was concerned, the appeal of the petitioner was dismissed holding that the ground of non-payment of arrears of rent was not available to the respondent landlord. 11. However, keeping in view the statement of the respondent-landlord which remained un-re-butted, it was held that need of the landlord being best judge of his necessity, tenant has no right to dictate the terms to him and thus, even if the landlord has other shops in possession, he has prerogative of the landlord to get vacated the shop as per his requirement and bona fide need. 12. Still not satisfied, the tenant-petitioner has filed C.R. No. 3962 of 2013 challenging the order of Appellate Authority passed in Appeal No. 4 of 2012 and Appeal No. 9 of 2012 dated 18.12.2012, vide Civil Revision Nos. 3962 of 2013 and 5142 of 2013 respectively. 13. Keeping in view the fact that evidence of the respondent-landlord in support of his case has remained un-rebutted, which is sufficient to sustain the impugned order of eviction was passed against him in Appeal No. 9 of 2012 (under challenge in C.R. No. 5142 of 2013). Counsel for the petitioner could not dispute that the fate of this revision petition depends upon the decision of this Court in C.R. No. 3962 of 2012 as in case the same is accepted the ex parte proceedings will go and resultantly the eviction orders will also have to be set aside to start the proceedings from that stage and in case the said revision is dismissed nothing shall survive. 14. 14. Learned counsel appearing on behalf of the petitioner has vehemently argued that order of the Rent Controller proceeding against ex parte against the petitioner is liable to be set aside as there is ample evidence on record to show that wife of the petitioner was not well and therefore, he could not attend the proceedings before the Rent Controller and thus, there being sufficient reasons, petitioner was entitled to the relief as claimed i.e. setting aside the impugned order of the proceed in SUPREME COURT OF INDIA ex parte against him. 15. However, this Court is of the view that the petitioner has failed to explain his conduct. It is a matter of record that the petitioner was proceeded ex parte i.e. after 8.11.11. Neither petitioner nor his counsel appeared before the Rent Controller and thus, the Rent Controller has no option but to pass an order of proceeding ex parte against the petitioner. 16. Not only this, even counsel for the petitioner did not appear on 21.12.2011 and subsequent dated i.e. 14.1.2012, 2.2.2012, 7.2.2012 and 14.2.2012. No explanation is coming on behalf of counsel for the petitioner with regard to his non-appearance in the case in hand. Neither any affidavit has been produced with regard to illness of wife of the petitioner. Thus, ground raised with regard to non-appearance of the petitioner has remained unsupported and therefore, no fault can be found in the order whereby he was proceeded ex parte. 17. At this stage, it may further be noticed that appeal filed by the petitioner against the order dated 22.2.2012 whereby he was proceeded ex parte is not maintainable in view of Division Bench judgment in Tirlok Singh Anand v. M/s. Prem Chand and sons & others, : 2012(2) R.C.R. (Rent) 472 : 2013(1) R.C.R. (Civil) 488 : 2012(4) CCC 87 , wherein, it has been held that no appeal is maintainable against every order of the Rent Controller except the orders passed under Sections 4, 10, 12 and 13 of the said Act. 18. It is also well settled that Rent Controller is a persona designata and not the Court where provisions of the CPC are applicable in its strict sense. Therefore, no appeal is maintainable against the order of the Rent Controller rejecting the prayer of the petitioner to set aside the order of proceeding ex parte against him. 19. 18. It is also well settled that Rent Controller is a persona designata and not the Court where provisions of the CPC are applicable in its strict sense. Therefore, no appeal is maintainable against the order of the Rent Controller rejecting the prayer of the petitioner to set aside the order of proceeding ex parte against him. 19. In view of the aforesaid, I find no merit in both these petitions. 20. Dismissed. Since revision petitions have been dismissed on merits, application for condonation of delay has become redundant.