Civil Revision No. 6214 of 2006 1
In the High Court of Punjab and Haryana, at Chandigarh.
Civil Revision No. 6214 of 2006
Date of Decision: 7.11.2008
Tilak Raj
...Petitioner
Versus
Mrs. Usha Jindal and Others
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. S.K.Chopra, Advocate
for the petitioner.
None for the respondents.
Kanwaljit Singh Ahluwalia, J. (Oral)
Sukhdev Parshad, landlord, filed a petition for eviction of
tenant Tilak Raj and Mangal Dass, from a shop situated at Suniar
Bazaar, Janki Dass Street, Near Gandhi Ground, Samana. It was stated
therein that the petitioners-tenants were inducted as tenants by Chajju
Ram, father of Sukhdev Parshad on 23.2.1988, as the rate of rent
settled at that time was Rs.500/- per month. On the ground that the rent
has not been paid from 1.4.1996, eviction petition had been filed.
Petitioner Tilak Raj was ordered to be proceeded against ex parte on
28.3.2000 , whereas Mangal Dass was proceeded against ex parte on
5.4.2000. During pendency of proceedings, Sukhdev Parshad died,
Civil Revision No. 6214 of 2006 2
Usha Jindal and others were impleaded as legal representatives.
In the ex parte evidence, landlord had examined two
witnesses and the eviction petition was allowed on 22.10.2002.
Thereafter, an application was filed on 20.2.2001 for setting the ex parte
eviction order. Landlord made a statement that he has no objection in
case application for setting aside ex parte order is allowed. The Court
allowed the application and ex parte order was set aside subject to
payment of cost of Rs.300/-. The cost was paid.
It is stated that rent was tendered. After setting aside of ex
parte proceedings, a number of opportunities were availed by the
petitioner for filing written statement. Thereafter, nobody appeared for
him and he was again proceeded against ex parte on 19.1.2000.
Learned Rent Controller proceeded with ex parte evidence. After
recording the evidence, learned Rent Controller recorded a finding that
even though the tender of rent was made by the petitioner-tenant on
20.11.2001 and also paid the arrears of house tax but no interest
thereon has been paid. It was further noticed that learned counsel for
the petitioner-landlord accepted the rent under protest. Petitioner
thereafter filed a Civil Revision No. 2146 of 2005 in this Court, which
was disposed off on 26.7.2005. In the revision, it was noticed that two
demand drafts amounting to Rs.37,120/- and Rs.10,100/- have been
deposited in the name of Usha Jindal, landlady. Learned Rent
Controller was directed by this Court to decide the application for setting
aside the ex parte ejectment order. In pursuance of order passed by
this Court (Annexure P3), learned Rent Controller proceeded to decide
the application and formulated the following issues:-
Civil Revision No. 6214 of 2006 3
1. Whether there are sufficient grounds for
setting aside the ex parte judgment/order
dated 22.10.2002? OPP
2. Whether the petition is within time? OPP
3. Whether the petition has been filed just to
obstruct the execution proceedings as
alleged? OPR
4. Relief.
Petitioner appeared in the witness box and tendered into
evidence his affidavit Ex.A1. Thereafter, his evidence was closed. On
behalf of landlady, Kapil Jindal appeared as a witness and tendered his
affidavit Ex.RW1/A.
Learned Rent Controller after examining the evidence came to
conclusion that Tilak Raj was not vigilant regarding litigation pending in
the Court. It was further held that once the ex parte order was set aside,
he stopped appearing in the Court. Therefore, on second time he was
proceeded against ex parte and ejectment order was passed. No
sufficient reason was found by learned Rent Controller to recall the
order of ex parte ejectment order. Aggrieved against the same,
Petitioners had filed an appeal. Learned Appellate Authority held as
under:-
“…The discussion clearly shows that applicant
habitually absents from the Court. After he tendered
the rent, ;he knew that a case is going on, but he
absented and was proceeded against ex parte on
19.1.2002. Thereafter, for about one year and eight
Civil Revision No. 6214 of 2006 4months he remained silent and acted only when the
Bailiff reached him. In cross-examination, the
applicant has admitted that his counsel Sh. Inderjit
Sharma is his friend and that clerk of Sh. Inderjit
Singh is his real cousin. Therefore, it is not possible
that applicant was not told about the proceedings.
He intentionally absented from the proceedings not
only once but twice. The earlier ex parte order was
set aside and the applicant took the latitude to
absent again. Now in order to defeat the execution
of the decree, he has filed the present application
much beyond the period of limitation. Hence, I do
not find any ground to interfere in the findings
recorded by the trial Court on issue No.1 and 2.
Consequently, the appeal is found to be without any
merits and is dismissed, with costs. Memo of costs
be prepared and file be consigned to record room.
Trial Court records be returned”.
This Court had issued notice and a Co-ordinate Bench on
2.9.2008 noticed that respondent-landlady had been served but had not
appeared nor represented through counsel and the respondents were
ordered to be proceeded against ex parte.
Two fold submissions have been made before me by Mr.
S.K. Chopra, Advocate, appearing for the petitioner. He has stated that
even he was proceeded against ex parte, as per Rakesh Wadhawan v.
M/s Jagdamba Industrial Corporation 2002(1) Rent Control
Civil Revision No. 6214 of 2006 5
Reporter 514, any deficiency in the tender can be made good later
Therefore on this ground, ejectment could not be ordered. He has
further stated that once the petitioner filed a revision petition and he was
allowed to hand over the drafts to Usha Jindal, respondent No.1, one of
the legal representative of the landlord, entire amount had been paid
and therefore, ex parte order could not be sustained. He has further
stated that fair play demands that the matter should have been
determined on merits.
Learned counsel has further relied upon Rafiq and Another
v. Munshi Lal and Another AIR 1981 Supreme Court 1400 to say that
once the counsel had been engaged by the petitioner and he would
have posed confidence in him, learned Appellate Authority had
committed a grave error to say that since the counsel was friend and
Clerk of the counsel is a cousin of the petitioner, it was not possible that
the petitioner was not told about the proceedings, therefore, heavy onus
was cast upon the petitioner. He has further relied upon Malkiat Singh
v. Joginder Singh 1998 AIR Supreme Court 258 and Rafiq’s case
(supra). Relying upon these judgments, learned counsel has stated that
though the petitioner was not negligent as he had paid the entire
amount of rent, therefore, it was incumbent upon learned trial Court to
issue notice to the petitioner or to his counsel.
Even though I find merit in these arguments of learned
counsel, but it can be safely inferred that the petitioner was not vigilant
and had taken the pendency of proceedings in the Court in a casual
manner. Therefore, he has caused much agony to the landlady.
Taking into consideration the need of fair play giving fair
Civil Revision No. 6214 of 2006 6
opportunity and to balance the equities, it will be just in case the
petitioner is burdened with heavy costs, and ex parte order is set aside.
Accordingly, impugned orders (Annexures P3 and P5) are set
aside. The petitioner shall cause appearance before learned Rent
Controller on or before 1.12.2008. However, taking the whole conduct
of the petitioner in view, he is burdened with cost of Rs.25,000/-. The
cost shall be deposited on the first date of his appearance before
learned Rent Controller on 1.12.2008 and shall be disbursed to the
landlady after notice of appearance is issued to her.
With these observations, the present revision petition is
disposed off.
(Kanwaljit Singh Ahluwalia)
Judge
November 7, 2008
“DK”