Jagdeesh S/o Late Shri Panchu Lal v. Laxmi Naryana S/o Shree Bhonri Lal
2017-05-23
ALOK SHARMA
body2017
DigiLaw.ai
ORDER : Alok Sharma, J. Under challenge is the order dated 21.07.2015 passed by the Appellate Rent Tribunal dismissing the petitioner-tenant (hereinafter 'the tenant') appeal against the order dated 02.05.2015 passed by the Rent Tribunal, Jaipur Metropolitan dismissing the tenant's application under Order 9, Rule 13 CPC for setting aside the ex-parte judgment dated 21.10.2008. 2. The respondent-landlord (hereinafter 'the landlord') filed an eviction petition on 13.09.2007 under Section 9 of the Rajasthan Rent Control Act, 2001 on the ground of bona fide and reasonable necessity. The tenant was served notice of the eviction petition. On 05.03.2008, his counsel one Mohan Choudhary filed his Vakalatnama and sought time to file reply without any objection as to the non receipt of the eviction petition and documents in support. On the matter coming up after one month, on 05.04.2008, before the Rent Tribunal, the counsel for the tenant oddly sought and was supplied copies of the eviction petition and the supporting document/s. Time to file reply was again sought and granted. On 19.05.2008 counsel for the tenant once again sought time to file reply. It was granted and the date fixed for 28.05.2008. None appeared for the tenant before the Rent Tribunal on 28.05.2008. Consequently ex-parte proceedings were drawn against the tenant. Evidence of the landlord was thereafter recorded date and the matter finally heard. Ex-parte judgment dated 21.10.2008 followed whereby the Tribunal issued a certificate of possession of the tenanted premises in favour of the landlord and an order of the eviction against the tenant. 3. On 29.08.2009, after about 10 months following the judgment dated 21.10.2008 the tenant filed an application under Order 9, Rule 13 CPC along with an application for condonation of delay under Section 5 of the Limitation Act, 1963. The Rent Tribunal on consideration of the matter found that the there was no ground to condone the delay of over eight months in filing the application under Order 9, Rule 13 CPC. The application for condonation of delay was dismissed. So was the application under Order 9, Rule 13 CPC. The Appellate Rent Tribunal then concurred with the Rent Tribunal dismissing the application under Order 9, Rule 13 CPC and dismissed the tenant's appeal vide order dated 21.07.2015. Hence this petition. 4. Heard, Mr. S.C. Goyal appearing for the tenant and Mr. Abhimanyu Singh, counsel for the landlord. 5. Mr.
So was the application under Order 9, Rule 13 CPC. The Appellate Rent Tribunal then concurred with the Rent Tribunal dismissing the application under Order 9, Rule 13 CPC and dismissed the tenant's appeal vide order dated 21.07.2015. Hence this petition. 4. Heard, Mr. S.C. Goyal appearing for the tenant and Mr. Abhimanyu Singh, counsel for the landlord. 5. Mr. S.C. Goyal, counsel for the tenant submitted that despite an Advocate being engaged by the tenant, he did not keep him abreast with the proceedings before the Rent Tribunal. It was submitted that having engaged as Advocate the tenant left to earn a livelihood as a Driver with a company in Delhi. He thus could not follow up with his advocate nor was kept informed by him and hence ex-parte proceedings were draw against him. It was submitted that sufficient cause for non appearance of the tenant before the Rent Tribunal should be found in his poverty and compulsions to earn a livelihood. And so too for condonation of delay in filing the application under Order 9, Rule 13 CPC. 6. Mr. Abhimanyu Singh, appearing for the landlord submitted that the tenant was admittedly served notice of the eviction petition. He engaged an Advocate one Mohan Choudhary who appeared for him before the Rent Tribunal on several occasions. Yet file reply to the eviction petition was not filed despite several opportunities and the proceedings before the Rent Tribunal then abandoned the tenant by the non-appearance of his advocate and the tenant's lack of standard care expected of a litigant to be vigilant in proceedings before the Court. Poverty and the necessity of earning a livelihood leading to the tenant leaving Jaipur for Delhi is too generalized a ground for justifying absence before the Court. Such a ground if allowed to supply sufficient cause for non-appearance before Court will wreck havoc with the Court processes and prejudice rights of the opposite party to a litigation besides conferring unfair advantages on the party in default. This would negate the very sanctity of the judicial processes. It was submitted that the tenant was completely remiss in defending the eviction petition and cannot be casually allowed to put the clock back and unravel a final adjudication through due process by resort to a mechanical application under Order 9, Rule 13 CPC.
This would negate the very sanctity of the judicial processes. It was submitted that the tenant was completely remiss in defending the eviction petition and cannot be casually allowed to put the clock back and unravel a final adjudication through due process by resort to a mechanical application under Order 9, Rule 13 CPC. It was submitted that Rent Tribunal as also the Appellate Rent Tribunal have found from the record of the eviction petition that there was no sufficient cause justifying the absence of the tenant in the proceedings of the eviction petition despite service of notice and initial appearance of his duly authorised counsel. Further the application under Order 9, Rule 3 CPC was filed after a delay of over eight months over limitation provided, without justification for the delay. Mr. Abhimanyu Singh, further submitted that the jurisdiction of this Court under Article 227 of the Constitution of India is to be exercised only in situations of perversity, patent illegality and ex-facie irregularity leading to manifest injustice. It cannot be casually exercised for vaguely stated reasons of "interest of justice". He submitted that the expression "interest of justice" cannot exclude the rights of decree-holder based on a judgment/ decree, albeit ex-parte, passed after due process and the decree holder having expanded time and money on the litigation. Hence the petition be dismissed. 7. Heard. Considered. 8. From the facts on record before the Rent Tribunal it was established that the tenant was served in the eviction petition laid by the landlord. He engaged an Advocate to appear before the Rent Tribunal who from time to time sought the Court's indulgence for filing reply to the eviction petition. The proceedings were then abandoned by the tenant before the Rent Tribunal, as neither his counsel nor he himself appeared. They were resultantly made ex parte and an ex-parte judgment against the tenant was the inevitable consequence. It so followed vide judgment dated 21.10.2008. The tenant then took over ten months, about 8 months after expiry of limitation, to move an application under Order 9, Rule 13 CPC accompanied with an application under Section 5 of the Limitation Act.
They were resultantly made ex parte and an ex-parte judgment against the tenant was the inevitable consequence. It so followed vide judgment dated 21.10.2008. The tenant then took over ten months, about 8 months after expiry of limitation, to move an application under Order 9, Rule 13 CPC accompanied with an application under Section 5 of the Limitation Act. The Rent Tribunal has rightly found that the tenant on the case set up was not entitled for condonation of delay in filing the application under Order 9, Rule 13 CPC for reason of the fact that ex-parte judgment dated 21.10.2008 was passed subsequent to the service on him and as warranted under Article 123 of the Limitation Act, 1963 reckoned therewith, the application under Order 9, Rule 13 CPC ought to have been filed within thirty days from the date of the judgment but was filed after a period of ten months, over eight months beyond limitation prescribed in law. No good ground was set out in the application for condonation of delay. It was thus dismissed based on objective consideration of the uncontroverted facts on record. Nothing perverse, patently illegal or irregular in the dismissal of the application for condonation of eight months delay in filing the Order 9, Rule 13 CPC application by the Rent Tribunal as affirmed by the Appellate Rent Tribunal can be found. 9. In the circumstances, I find force in the contention of Mr. Abhimanyu Singh, counsel for the landlord that no occasion to interfere with the order dated 02.05.2015 passed by the Rent Tribunal as affirmed by the Appellate Rent Tribunal's order dated 21.07.2015 obtains. The said orders do not even remotely suffer any perversity, patent illegality, irregularity entailing an issue of error or failure to exercise jurisdiction by the Tribunals below. The petition stands dismissed accordingly.