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2013 DIGILAW 1945 (RAJ)

LRs. of late Keshar Devi v. Smt. Vajeera

2013-11-08

GOPAL KRISHAN VYAS

body2013
JUDGMENT 1. - Heard learned counsel for the parties. 2. The instant writ petition has been filed by the petitioners under Article 227 of the Constitution of India to quash the order dated 08.04.2013 (Annex.7) passed by the Appellate Rent Tribunal, Bikaner in appeal order No.32/2012 whereby the appellate Tribunal affirmed the order dated 27.3.2012 passed by learned Rent Tribunal, Bikaner in civil misc. case NO.03/2012 by which the application filed by the petitioner under Order 9, Rule 13 read with Section 151 CPC and application filed under Section 5 of the Limitation Act was rejected by the Rent Tribunal, Bikaner. 3. As per facts of the case, the respondent No.1 preferred eviction application against the petitioners on various grounds including the ground of denial of title. 4. The petitioners put an appearance through their counsel in the rent Tribunal, Bikaner and filed reply to the application for eviction in which refuted all the grounds taken in the application. The application under Section 9 of the Rajasthan Rent Control Act was filed by the respondents in the year 2005 in which after filing reply, the Rent Tribunal, Bikaner proceeded for trial. In the trial, the respondent applicant led his evidence, thereafter, the matter was posted for recording evidence in defence but no information was given by his counsel. 5. Learned counsel for the petitioners submits that all of sudden notice for execution was received by the petitioner in the month of October, 2011 then it has come to the knowledge of the petitioners that ex-parte judgment has been passed by rent tribunal against them due to non-appearance of their counsel in the court. 6. After receiving information, petitioners engaged new counsel immediately and filed an application under Order 9, Rule 13 CPC. The respondents filed their reply to the application and denied the submission made in the application by the petitioner, thereafter, the Rent Tribunal heard the application and passed the order on 27.3.2012 whereby the application filed by the petitioner under Order 9, Rule 13 CPC as well as the application under Section 5 of the Limitation Act were rejected. 7. Learned counsel for the petitioners submits that as per the order-sheets of the trial Court, it will reveal that the petitioners were pursuing in the trial right from 2005 to January, 2011 through their counsel. 7. Learned counsel for the petitioners submits that as per the order-sheets of the trial Court, it will reveal that the petitioners were pursuing in the trial right from 2005 to January, 2011 through their counsel. On 5.10.2010, the statement of PW-1 from the side of respondent applicant were recorded, and after that an opportunity was granted to the petitioners to lead their evidence. 8. The case was listed before the Rent Tribunal, Bikaner again on 22.09.2010, 29.10.2010 and 26.12.2010, on which opportunity was granted to the petitioners counsel to lead evidence in his defence but unfortunately no information was given to the petitioner by their counsel and on 28.1.2011, the counsel did not appear before the Court. The Rent Tribunal passed an order to proceed ex-parte and fix the case for final hearing on 21.2.2011. On that date, ex-parte arguments were heard and ultimately the Tribunal passed the judgment against the petitioners and issued the certificate for eviction on 4.3.2011. The above facts clearly reveal that ex-parte order was passed due to non-appearance of the petitioners' lawyers, therefore, this fact was to be considered by the trial Court at the time of deciding the application filed under Order 9, Rule 13 CPC as well as the application filed under Section 5 of the Limitation Act but learned Rent Tribunal, Bikaner rejected the application without considering the important aspect of the matter that exparte order has been passed due to non-appearance of the petitioner's counsel for which the petitioners being litigant cannot be suffered. Learned counsel for the petitioner further submits that all the grounds with regard to non-appearance of lawyer in the Court was brought to the notice of the Appellate Rent Tribunal, Bikaner also but appellate rent tribunal rejected the appeal and affirmed the order passed by the Rent Tribunal on 27.3.2012 whereby the application filed by the petitioner under Order 9, Rule 13 as well as the application under Section 5 of the Limitation Act was dismissed. 9. 9. Learned counsel for the petitioners invited attention of this Court towards the judgment of this Court reported in 2010 (1) DNJ (Raj) 201, Prem Singh v. Ram Kishan and submits that in the aforesaid judgment, this Court has held that the litigant should not be suffered for the lapse and negligent act of counsel, therefore, the case of the petitioners may be considered in the light of the aforesaid judgment to quash the orders impugned in this writ petition. 10. Per contra, learned counsel for the respondent applicant vehemently opposed the prayer and submits that although order to proceed ex-parte was passed due to nonappearance of lawyer but how it can be presumed that no information was received by the petitioner for near about one year and for the first time information with regard to judgment received when notice for execution were issued by the Rent Tribunal. It is submitted by learned counsel for the respondents that complete false defence has been taken by the respondents for non-appearance before the Court and for the delay caused in filing application for setting aside the ex-parte judgment, therefore, there is no ground to interfere in the elaborated judgment rendered by Rent Tribunal and the Appellate Rent Tribunal, Bikaner, therefore, this writ petition may be dismissed. 11. After hearing learned counsel for the parties, I have perused the entire writ petition so also the order sheets of the case file of the rent tribunal summoned by this Court. 12. Admittedly, the application for eviction was filed in the year 2005 and petitioners participated in the proceedings upto December, 2010 while filing their reply. On 5.8.2010, the statement of PW-3 Najirdin were recorded by the Rent Tribunal, thereafter, opportunity was granted to the petitioners to lead their evidence but it is nowhere emerges from the facts that any information was given by the counsel of the petitioners with regard to their appearance before the Court to lead evidence. On 16.12.2010, last opportunity was granted in presence of counsel by the Rent Tribunal but on 28.1.2011, the counsel of the petitioners did not attend the Court and due to his nonappearance, the Rent Tribunal passed an order to proceed exparte. On 16.12.2010, last opportunity was granted in presence of counsel by the Rent Tribunal but on 28.1.2011, the counsel of the petitioners did not attend the Court and due to his nonappearance, the Rent Tribunal passed an order to proceed exparte. Meaning thereby, it is a case in which ex-parte order has been passed due to non-appearance of the lawyer so also, the application filed under Order 9, Rule 13 CPC as well as the application filed under Section 5 of the Limitation Act have been rejected without considering the important aspect of the matter that the litigant should not be suffered for any lapses and negligence of the lawyer. In the opinion of this Court, the judgment rendered by this Court in Prem Singh's case supra, has not been considered by the Rent Tribunal as well as the Appellate Rent Tribunal, Bikaner, therefore, both the orders are not sustainable in law. 13. In case of Prem Singh (supra), following adjudication has been made in para Nos. 8, 9 and 10, which reads as under:- "8. I have considered the rival submission advanced by both the parties and perused the material on record. It is true that application for setting aside the ex parte order or ex parte decree should be filed within limitation; but, in the present case, admittedly, on 24.5.2006 document as ordered by the trial Court was produced for perusal of the Court and for adjudication, which is on record; but, on the next date of hearing i.e., 25.7.2006, the Court ordered to proceed ex-parte in the matter; meaning thereby, till 24.5.2006, the appellant-defendant was very much before the Court. 9. Upon perusal of the entire record, facts come out that application was filed after delay of one year for the reason that order for proceedings ex parte was passed in the matter. In my opinion, merely on the basis of presumption, order for proceedings ex parte against the defendant-appellant was passed, therefore, application filed under Order 9, Rule 13 , C.P.C. along with application under Section 5, Limitation Act was to be accepted. The learned trial Court proceeded in the matter in a very strict manner and passed ex parte decree against the appellant defendant. 10. The learned trial Court proceeded in the matter in a very strict manner and passed ex parte decree against the appellant defendant. 10. Before the Court of law normally litigant should not be thrown out of hearing and is required to be given ample opportunity and, for the same, Courts are required to take lenient view. Of course, if the conduct is found to be contrary, nonappearance before the Court in this case when ex parte decree was passed, I am of the opinion, that order impugned dated 20.1.2009 does not deserve to survive. It is settled principle of law that for the lapse on the part of the counsel the litigant should not be made to suffer." 14. In view of above, both the orders dated 27.3.2012 passed by Rent Tribunal, Bikaner and the order dated 08.04.2013 passed by Appellate Rent Tribunal, Bikaner are not sustainable in law, therefore, while following the aforesaid judgment, this writ petition is allowed and the orders dated 27.3.2012 passed by Rent Tribunal, Bikaner and the order dated 08.04.2013 passed by Appellate Rent Tribunal, Bikaner are hereby quashed and the matter is remitted to the Rent Tribunal, Bikaner for deciding the matter on merit after providing opportunity of hearing to both the parties and both the parties are directed to remain present before the Rent Tribunal on 09.12.2013. It is expected from the Rent Tribunal, Bikaner that case will be decided afresh within a period of six months from the date of appearance of the petitioners on merit.Petition allowed. *******