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Bala Subramanian vs Rshaath Risha And 5 Ors. on 10 February, 1997

Madras High Court
Bala Subramanian vs Rshaath Risha And 5 Ors. on 10 February, 1997
Equivalent citations: 1997 (1) CTC 495
Author: Jagadeesan
Bench: Jagadeesan

ORDER

Jagadeesan, J.

1. The tenant is the petitioner. The respondents filed R.C.O.P. No. 14 of 1993 to evict the petitioner herein. The petitioner was set ex parte on 9.6.1993. He has filed an application I.A.No. 49 of 1993 to set aside the order, setting him ex parte. While the said application was pending, an ex parte order of eviction was passed on 21.6. 1993. The application I.A. No. 49 of 1993 was dismissed on merits on 1.10.1993. The petitioner has filed I.A.No. 2 of 1994 to set aside the order passed in I.A. No. 49 of 1993. The Rent Controller as well as the Appellate Authority dismissed the application I.A.No. 2 of 1994 on the ground that the same is not maintainable and the proper remedy for the petitioner is to file an appeal against the order of dismissal of I.A.No. 49 of 1993. Now the revision has been filed against the order of the Appellate Authority in R.C.O.P. No. 6 of 1994, confirming the order of the Rent Controller, dismissing the application I.A.No. 2 of 1994.

2. The learned counsel for the petitioner contended that when the application for setting aside the order of setting ex parte was pending, the Rent Controller ought not to have proceeded with the R.C.O.P. any further and the disposal of the R.C.O.P. ex parte is not correct. More over I.A.No. 49 of 1993 had been dismissed on the technical ground that the petitioner did not mention anything about the date of the ex parte order in the petition and as such the application for setting aside the order in I.A.No. 49 of 1993 is maintainable and the courts below sought to have entertained the same on merits.

3. I carefully considered the contention of the counsel for the petitioner. When the petitioner has filed the application I.A.No. 49 of 1993 for setting aside the order, setting him ex parte, he ought to have filed an application for stay of further proceedings in R.C.O.P. No. 14 of 1993. Without filing an application for stay of further proceedings, he cannot blame the court for proceeding with the R.C.O.P. In the absence of any application for stay, the mere filing of application for setting aside the order setting the petitioner ex parte, cannot be a ground to postpone the disposal of the R.C.O.P. on merits. It is not the case of the petitioner that when the R.C.O.P. was taken up for final disposal on 21.6.1993, the court was put on notice about the pendency of the application I.A.No. 49 of 1993. Hence there is nothing wrong on the part of the lower court to proceed with the R.C.O.P.

4. When the application I.A.No. 49 of 1993 filed by the petitioner for setting aside the order, setting him ex parte, had been dismissed whether on merits or on technical grounds, the proper remedy is to file on appeal against the said order and there is no provision to entertain an application for setting aside the order. Hence bother the courts below have rightly dismissed the application I.A.No. 2 of 1994 filed by the petitioner for setting aside the order of dismissal of I.A.No. 49 of 1993.

5. The counsel for the petitioner further contended that as per Rule 13(3) of the Rules framed under the Pondicherry Buildings (Lease and Rent Control) Act, 1969, if an application for setting aside the ex parte order or to set aside the order of dismissal is presented, then the court is bound to stay the further proceedings. It is further contended that in this case, the petitioner was set ex parte on 9.6.1993 and the application has been field for setting aside the order, setting the petitioner ex parte and while the application was pending, the Rent Controller has proceeded with the trial ex parte in the R.C.O.P. and ultimately passed an ex pate order of eviction on 21.6.1993 which is contrary to the said Rules.

6. I am unable to agree with the contention of the counsel for the petitioner. The admitted case is that the petitioner was set ex parte on 9.6.1993. The application for setting aside the order, setting the petitioner ex parte, seems to have been filed. From the records it is not clear as to on what date the application was filed and on what date the application was take on file. But, however, from the statement of facts, it is clear that while that application was pending, the ex parte order of eviction had been passed. The lower court had dismissed the I.A.No. 49 of 1993 filed by the petitioner for setting aside the order, setting him ex parte. When once the application has been disposed of, the remedy for the petitioner is only to challenge the same by way of appeal or revision. Now, without doing so, the petitioner has filed the application I.A.No. 2 of 1994 for setting aside the order in I.A.No. 49 of 1993 which the courts below have held that the application is not maintainable.

7. Rule 13(3) of the said Rules refers that where an order is passed ex parte against tenant or a landlord or any order of dismissal for default is passed by the Rent Controller, then the party aggrieved, may, within 30 days from the date of the order or if he satisfies the Controller that he knew of the order only on a date subsequent to the date on which it was passed within 30 days from the date of such knowledge apply to the Controller by whom the ex parte order or the order of dismissal was passed, for an order to set it aside, the Controller shall make an order setting aside the ex parte order or the order of dismissal passed, as the case may be. According to this provision, it is mandatory on the part of the Rent Controller to set aside the ex parte order when it is filed for the first time, because Sub-rule (4) of Rule 13 refers to the application for the second or subsequent occasions. To appreciate this contention, it is worthwhile to extract Sub-rules (3) and (4) of Rule 13 of the said Rules, which reads as follows:

“13 Procedure for the disposal of applications-

(1)……

(2)……

(3) In any case in which an order is passed ex parte against a tenant or a landlord, or any order of dismissal of default is passed by the Controller then the party aggrieved may, within thirty days, from the date of the order, or if the satisfies the controller that he knew of the order, only on a date subsequent to the date on which it was passed, within thirty days form the date of such knowledge, apply to the controller by whom the ex parte order or the order of dismissal was passed, for an order to set it aside, and if he satisfied the Controller that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the application was called on for hearing, or that such default was occasioned due to circumstances beyond his control, the controller shall ask an order setting aside the ex parte order or the order of dismissal passed, as the case may be, upon such terms as to costs as the Controller thinks fit and shall appoint a day for proceeding with the application:

Provided that no order shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party:

Provided further that in computing that period of thirty days for the purpose of this sub-rule, the time requisite for obtaining a certified copy of the order shall be excluded.

(4) Where an application for setting aside an ex parte order of dismissal for default has been received under Sub-rule (3) for the first time, all execution proceedings in pursuance of the ex parte order of the order of dismissal for default shall be stayed until the disposal of the application;

Provided that in respect of a second or subsequent application to set aside an ex parte order or an order of dismissal for default, the Controller shall have discretion to grant or refuse stay.”

8. From the above provision, it is very clear that even assuming that Rule 13(3) and (4) of the said Rules is mandatory, it will be applicable only to the ex parte order, wherein the rights of the parties is affected. Here, by order dated 9.6.1993, the petitioner was set ex parte. The subsequently on 21.6.1993 an ex parte order of eviction has been passed. I am of the opinion that Sub-rule (3) of the Rule 13 will be applicable only if any application has been filed by the petitioner for setting aside the ex parte order of eviction dated 21.6.1993 and this Rule 13(4) is of no help to petitioner in the present context. When the petitioner had not challenged the order of dismissal of I.A.No. 49 of 1993, as well as the ex parte order of eviction dated 21.6.1993 now the question is whether I.A.No. 2 of 1994 to set aside the order of dismissal in I.A.No. 49 of 1993 is maintainable or not. The courts below have rightly held that the application is not maintainable and hence the contention raised by the counsel cannot be countenanced on the facts of the present case.

9. As there is no error of jurisdiction or otherwise, the orders of the courts below are confirmed and the civil revision petition is of no merits and accordingly the same is dismissed.

After the pronouncement of the order, learned counsel for the petitioner requests time to vacate the premises. The petitioner is granted three months time from today to vacate the premises.

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