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Jalaluddin S/O Nooruddin And Anr. vs Hanifa Maqbool on 19 January, 1996

Madhya Pradesh High Court
Jalaluddin S/O Nooruddin And Anr. vs Hanifa Maqbool on 19 January, 1996
Equivalent citations: 1996 (0) MPLJ 948
Author: R Garg
Bench: R Garg


JUDGMENT

R.S. Garg, J.

1. By the impugned order the learned Rent Controlling Authority has rejected the applicant’s application filed under Order 9, Rule 7, Civil Procedure Code read with Section 23 (c) of M. P. Accommodation Control Act, 1961 on 20-12-1994 in Case No. 9/R.C.A./93. Smt. Choudhary submitted that the applicant-tenant could not appear on 29-3-1994 and the Rent Controlling Authority passed an ex parte order and fixed the case for recording ex parte evidence on 4-4-1994. The case was thereafter adjourned to 9-5-1994. The applicant moved an application for setting aside the ex parte order under Section 23 (c) of the Act on the ground that the non-applicant No. 1 had gone to Delhi on 29-3-1994 and the non-applicant No. 2 was unwell on 29-3-1994, therefore, both the applicants could not attend the Court. The said application was supported by the medical certificate. The said application was contested by the non- applicant. The learned Rent Controlling Authority after hearing the parties by the impugned order dated 20-12-1994 rejected the application on the ground that the case was adjourned to 25-4- 1994 and 30-4-1994 but the applicants remained absent, therefore, sufficient cause was not made out. It was submitted on behalf of the applicants that the applicants were called upon to establish the sufficiency of the cause on the date when the case was taken up for hearing. She also submitted that assuming Rule 23 (c) does not apply in view of Rule 16 of M. P. Accommodation Control Rules the Court had powers to set aside the ex parte order. Mrs. Ruprah on the other hand contended that sufficient cause was not made out and the applicants could not prove the sufficient cause for their absence on 25-4-1994 and 30-4-1994, therefore, the lower Court was absolutely justified in rejecting the application. After hearing the parties I am of the opinion that this revision deserves to be allowed. According to Section 23 (c) of the Act the Rent Controlling Authority has powers to excuse the delay of the tenant in entering appearance or in applying for leave to defend the application for eviction and where ex parte order has been passed, may set it aside. The word ‘ex parte order’, as Mrs. Ruprah argues, would be a final order and not an interlocutory order. On the other hand Mrs. Choudhary submits that the word ‘ex parte order’ is to be read as it is in Rule 6 of Order 9 of the Code of Civil Procedure. Clause ‘a’ of Sub-rule 7 of Order 9 read “where the plaintiff appears and the defendant does not appear when the suit is called upon for hearing then – summons duly served – if it is proved that the summons were duly served the Court may make an order that the suit be heard ex parte. Order 9, Rule 13 refers to setting aside decree which has been passed ex parte against the defendant. According to Rule 13 in any case when a decree passed ex parte against the defendant may apply to the Court by which the decree was passed for an order to set it aside. There is a marked distinction between ex parte decree and the order that the suit be heard ex parte”. Order 9, Rule 13, Civil Procedure Code comes into operation where a final order is passed while an order that the suit be heard ex parte is an interlocutory order. Where the Court or authority makes an order that the suit be heard ex parte then the defendant may appear on the date of hearing and may assign good cause for previous non-appearance. In the instant case the Court had adjourned the hearing but the defendant had appeared and requested the Court that there was good cause for his previous non-appearance. It is further to be seen that in Rule 7 the defendant has to assign a good cause for his previous non-appearance while in Rule 13 he has to satisfy the Court that he was prevented by sufficient cause from appearing when the suit was called on for hearing. Section 23 (c) of M. P. Accommodation Control Act refers to the word ex parte order’. The word ex parte has not been defined in the Accommodation Control Act but can be found in Order 9 of the Code of Civil Procedure. The procedural law as provided in the Code of Civil Procedure has been made applicable to the proceedings before the Rent Controlling Authority. According to Rule 16 of the Rules, I am of the opinion that the word ‘ex parte order’ used in Section 23(c) would not only mean ‘ex parte final order’ but would also mean an ‘order that the suit be heard ex parte’. The procedural law is for the smooth progress of the case. Even otherwise the procedural law ordinarily should not affect the substantive rights of the parties.

2. In my opinion Section 23 (c) of the Act would be applicable for setting aside the ex parte order by which it has been ordered that the suit be heard ex parte. Section 23 (c) provides that on the sufficient cause being shown by the tenant the ex parte order may be set aside. In the instant case the order that the suit be heard ex parte was passed on 29-3-1994. The applicants had submitted that the applicant No. 1 had gone to Delhi and the applicant No. 2 was unwell, therefore, the applicants could not appear on the date when the suit was called on for hearing. The trial court was not justified in holding that the applicants were required to show the sufficient cause for their absence on 25-4-1994 and 30-4-1994. The law requires the defaulting party i.e. the tenant to show that for a sufficient cause they were prevented from making appearance before the Court. Once it is established that the defendants were prevented by sufficient cause then the Court has no option but to set aside the ex parte order. In the instant case the applicants had proved the sufficient cause for their non-appearance. The learned trial Court was not justified in holding that as the applicants did not appear on 25-4-1994 and 30-4-1994, the application was liable to be rejected. In the opinion of this Court as the applicants were proceeded ex parte on 29-3- 1994 they were required to show the sufficient cause for their non-appearance for that date. The ex parte order deserves to be set aside. The order dated 20-12-1994 is set aside. The parties are relegated back to their position as on 29-3-1994. The learned Rent Controlling Authority is directed to proceed with the trial in accordance with law.

3. The revision is allowed. The order dated 20-12-1994 is set aside. The learned trial Court shall proceed to decide the matter in accordance with law.

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