Punjab-Haryana High Court
Jagdish Chand vs Ved Parkash Puri on 7 February, 1995
Equivalent citations: (1995)111PLR217
JUDGMENT N.K. Kapoor, J.
1. This revision petition is against the order of the Rent Controller dated 10.5.1994 rejecting the petitioner's application filed under Order 9 Rule 8 of the Code of Civil Procedure (for short' the Code') for setting aside the ex-parte order dated 5.2.1993.
2. Before examining the contentions raised by the petitioner seeking reversal of the order passed be the Rent Controller, it would be appropriate to keep in view the broad facts leading to the present petition.
3. Ved Parkash filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short, 'the Act') seeking eviction of the petitioner from a shop and Rahdari and a part of courtyard, as detailed in the petition, on the grounds envisaged under the Act including non payment of rent since 1.6.1989. Pursuance to filing of this application, Rent Controller initiated process for service of the petitioner and as per record petitioner was served on 28.1.1993 for 1.2.1993. It is the case of the petitioner that he fell ill on 31.1.1993 and so could attend the Court on the date fixed i.e. 1.2.1993. Hence, proceeded ex-parte. Since his appearance was beyond his control and unintentional this is sufficient ground for setting aside the ex-parte order. Otherwise too, a copy of the application had not been served upon him.
4. This application was contested by the landlord. In reply, it was averred that due service had been effected upon the petitioner on 28.1.1993 for 1.2.1993. Other contentions made in the petition were denied. It was accordingly prayed that the petition deserves to be dismissed and the same may be dismissed accordingly.
5. The Rent Controller on the pleadings of the parties, framed the following issue:
1. Whether there is a good cause for setting aside the ex-parte proceedings? OPA.
6. The petitioner appeared as his own witness and made statement to the effect that though he had been served for the date fixed but had not been supplied with a copy of the application and that he fell ill on the date fixed and hence his absence on the date fixed was unintentional. The respondent-landlord too appeared and made statement to the effect that the petitioner despite service did not come present nor he tendered any amount. In fact, time and gain he had been demanding rent from him.
7. The Rent Controller on the basis of evidence led and on perusal of the record came to the conclusion that the petitioner was duly served for the date fixed i.e. 1.2.1993. For this, the Rent Controller relied upon he report of the Process Server and the affidavit duly sworn by him. According to the Rent Controller, even the endorsement of the Ahlmad on the summons shows that a copy of the application was forwarded along with the summons and so this was his due service in the eye of law. The Rent Controller also found no substance in the plea of the petitioner that he could not come present on the date fixed on account of his illness. The Court observed that the petitioner has not examined any doctor no has produced on record any medical certificate that he fell ill on 31.1.1993 and so could not attend the Court on 1.2.1993. Besides this, the Rent Controller observed that no evidence has been led by the petitioner to prove that he had sufficient funds to clear the arrears of rent on the first date of hearing. Accordingly, it was held that, in these circumstances, the ex-parte order passed against the petitioner cannot be set aside.
8. Learned counsel for the petitioner has once again urged that it is on account of sudden illness of the petitioner that he could not attend the Court on 1.2.1993. For this, the petitioner appeared as his-own witness and deposed on oath. A certificate issued by a doctor certifying that the petitioner was advised rest for three days i.e. from 31.1.1993, 2.2.1993 has now been annexed with this petition as Annexure P-1. In view of the sworn testimony of the petitioner that he fell ill and so could not attend the Court, the Rent Controller ought, in the circumstances of the case, condoned this minor lapse and permitted the petitioner to join the proceedings from that date. The petitioner was only to prove a good cause for his previous non appearance in terms of Order 9 Rule 7 of the Code which onus he has discharged satisfactorily. Provision for setting aside ex-parte proceedings is inevitably construed more liberally so that a party does not suffer on account of a mere lapse. Challenging the conclusion of the Rent Controller that service had been duly effected upon the petitioner, the counsel urged that there is no clear evidence on record that a copy of the application was delivered along with the summons. Even the Process Server has not been examined to prove that service has been effected upon the petitioner and a copy of the application was duly delivered to the petitioner along with the summons. This way too, the approach of the Rent Controller is faulty. Similarly, there is no requirement in the Act envisaging that a petitioner seeking setting aside an ex-parte order has to allege and prove that he had sufficient means to pay the arrears of rent claimed. This is the matter which the Court has to examine in the light of the written statement which is yet to be filed and not before. The terms 'first date of hearing' has been interpreted by the apex Court in case reported as Sham Lal (dead) by L. Rs. v. Atma Nand Jain Sabha (Regd), (1987-1) 91 P.L.R. 1 (S.C.) to be the day when Court applies its mind to the case, which ordinarily would be at the time when either the issues are determined or evidence taken. This being now the settled position, service even if it to be validly effected, will not make that date to be the first date of hearing and thus the question of tendering the amount or offering deposit would be wholly irrelevant. Thus, the impugned order of the Rent Controller deserves to be set aside.
9. Learned Counsel for the respondent, on the other hand, has contested all the points canvassed by the learned counsel for the petitioner. According to the counsel for the respondent, Rent Controller on the basis of material on record rightly came to the conclusion that the petitioner had been served with a copy of the application on 28.1.1993. for 1.2.1993. Report of the process server accompanied by an affidavit clearly prove due service upon the petitioner. Not only this even the endorsement of the Ahlmad shows that a copy of the application was forwarded along with the summons. Thus, the Court rightly came to the conclusion that due service has been effected upon the petitioner on 28.1.1993. Similarly, the Court found no substance in the bald assertion of the petitioner that it is on account of his illness that he could not attend the Court on 1.2.1993. Admittedly, the petitioner did not examine any doctor nor placed on record any medical certificate. A copy of the certificate now placed on record by the petitioner is merely to fill up the gap. Interestingly all that the certificate states is that Jagdish Chand has acute gastritus and is advised rest for three days. The doctor has not prescribed any medicine. This certificate is dated 31.1.1993. The petitioner in his application dated 5.2.1993 for setting aside the ex-parte order has neither expressed his willingness to deposit the arrears of rent (to show his bona fide) nor ha stated that he has sufficient funds to tender or deposit the amount claimed by the landlord. Once again a copy of saving bank account No. 4763 of Punjab and Sind Bank has been annexed with the petition which as per ground No. 9 of the revision petition is the account number of Sh. Raj Kumar, brother of the petitioner. Thus, this also does not advance the case of the petitioner that he had sufficient funds on the date of first hearing i.e. 1.2.1993. In any case, it is an after-thought and can hardly be made basis for setting aside the well considered order of the Rent Controller.
10. I have heard learned counsel for the parties and have perused the impugned order. Admittedly, the ejectment of the petitioner was sought in terms of Section 13 of the Act claiming arrears of rent from 1.6.1989 along with other grounds. Service was effected upon the petitioner on 28.1.1993 for 1.2.1993. Except for the bald assertion made by the petitioner that he had been served but without a copy of the application, there is no other supporting material. On the other hand, process server while submitting his report has stated in his affidavit that along with the summons a copy of the application was duly furnished to the petitioner. Thus, the Rent Controller rightly came to the conclusion that the petitioner had been served with a copy of the application. Admittedly, the petitioner did not choose to put in appearance. To prove this too, the petitioner did not lead any independent evidence i.e. examination of a doctor or production of certificate issued by him in this regard. However, a copy of the certificate had now been placed on record. The Rent Controller on perusal of the statement has come to the conclusion that the petitioner for no good reason abstained from attending the Court on the date fixed and-so has construed it not to be a sufficient cause for setting aside the ex-parte order.
11. I also find no merit in this plea of the petitioner. The certificate now placed on record does not inspire confidence. Dr. Yash Paul Goyal has certified as under:
"Certified that Sh. Jagdish Chand has acute gastritus. He is advised rest for three days i.e. from 31.1.93 to 2.2.93."
12. No medicine has been prescribed. Having observed to be a case of acute gastritus, the patient was advised rest for three days. It has nowhere been stated whether such a person was in a position to move about or not. Since the Certificates did not see the light of the day when the petition was examined in the Court on 11.11.1993, the same appears to have been procured later on.
13. The Rent Controller while declining the application for setting aside the ex-parte order also kept in view the fact that the petitioner while filing application did not express his willingness to deposit or tender the arrears of rent claimed by the landlord to how his bona fide. Thus, relying upon the judgment in case reported as Jagat Ram v. Shanti Sarup, (1965)67 P.L.R. 45, dismissed the petition.
Section 13 of the Act reads as under:-
"S.13. Eviction of tenants :- (1) A tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act, 1949, as subsequently amended.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied:-
(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement of tenancy with his landlord or in the absence of any such agreement by he last day of the month next following that for which the rent is payable: Provided that if the tenant on the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.
xx xx xx xx xx"
14. A bare perusal of the aforesaid provision reveals that in case a tenant on the first hearing of the application of ejectment, after due service, pays or tenders the arrears of rent and interest at 6 percent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. Thus, to avoid eviction on account of non payment of rent, it has been made incumbent upon the tenant to tender the arrears of rent along with interest and cost. The intention of this enactment is that in case a tenant pays or tenders the arrears of rent, his eviction should not be ordered on this count.
15. The expression 'first hearing of the application' has been a subject matter of adjudication in a number of cases. Finally, the apex Court in Sham Lal's case (supra) has held as under: -
"...In this context it is imperative that the words 'the first hearing of the application, have to be interpreted in a matter which promote the object of this beneficial legislation. Viewed from this aspect we cannot but hold that the words "first hearing of the application" as used in proviso (i) to sub section (2) of Section 13 of the said Act does not mean the day fixed for return of the summons or the returnable day but the day when the Court applies its mind to the case".
16. In the instant case, service was effected upon the tenant for 26.6.1969. On that day the tenant appeared along with his counsel before the Rent Controller and prayed for adjournment for filing written statement. The Case was adjourned to 2.7.1969. On that date the written statement was filed and the tenant tendered the arrears of rent along with interest and costs as fixed by the Rent Controller. The landlord accepted the amount under protest and an issue was framed whether the tender was a valid tender. The Rent Controller agreeing with the landlord's contention held that the arrears of rent having not been tendered on 26.6.1969, a default had been committed and so ordered ejectment of the tenant. The appellate Court reversed this order of the Rent Controller by holding that as the Rent Controller failed to discharge his duty in assessing the costs to be deposited by the tenant along with arrears of rent and interest on 26.6.1969, the tenant cannot be penalised for the mistake of the Court. Once again the High Court reversed this decision of the appellate authority leading to the filing of the Special Leave Petition. It is in this context that the apex Court came to the conclusion that it is the day when the Court applies its mind to the case that should be construed as "first hearing of the application". There is no dispute with regard to this settled position of law. According to the counsel for the petitioner, there is yet no first date of hearing and hence the necessity of tendering or depositing the arrears of rent by the petitioner does not arise.
17. I find no substance in this contention of the learned counsel as well. As per evidence on record, the petitioner had been served on 28.1.1993 for 1.2.1993. Thus, there was due service upon the petitioner, who, however, did not choose to put in appearance on the date fixed. Since the petitioner was not present, the Rent Controller obviously could neither assess the costs nor direct the tenant to deposit the arrears of rent and interest at the rate of 6 per cent per annum. As per proviso to Section 13(2)(i) pf the Act, it is for the tenant to express his willingness to tender the arrears of rent and interest and on such arrears that the costs of the petition is to be assessed by the Rent Controller. Since the petitioner failed to come present, obviously, the Rent Controller could not assess the costs. The Rent Controller in the light of the report of the process server chose to pass ex parte order and so this way applied his mind to the facts of the present case. Thus, 1.2.1993 would be the first hearing of the application in this case.
18. Even after due service, if any ex-parte order is passed, yet the petitioner can file an application for setting aside the ex-parte order provided he can prove sufficient cause for his non appearance on the date fixed. Dealing with this aspect, Division Bench in case reported as Jagat Ram Hamir Chand v. Shanti Sarup, held as under:-
" However, there is one more matter which has to be adverted to, namely while setting aside the ex-parte order the Rent Controller has not merely to go by the fact that tenant was prevented by sufficient cause from attending the hearing, but also whether on that date the tenant had the funds to clear the arrears of rent. It is the tenant v/ho is in arrears of rent. It is the tenant who wants to avoid his eviction under the proviso after having incurred the forfeiture of his tenancy by non payment of rent. It is for him to prove not only that he was prevented by sufficient cause from not attending on the date fixed but also that he had the means to meet that liability. We are stressing this aspect for the reason that dismissals for default should not be set aside as a matter of course, particularly, when false medical certificates which are easily available in this country, are, usually produced and the correctness of which is not an easy matter to verify. It goes without saying that these are considerations which have to be kept in view at the time of the decision of an application to set aside an ex-parte order passed at the first hearing."
19. There is also no material difference between a 'good cause' and 'sufficient cause. The apex Court in case reported as Arjan Singh v. Mohindra Kumar and Ors., A.I.R. 1964 S.C. 993, observed as under:-
" Before proceeding to deal with the arguments addressed to us by Mr. Setalvad, learned counsel for the appellant, it would be convenient to mention a point, not seriously pressed before us, but which at earlier stages was thought to have considerable significance for the decision of this question viz., the difference between the words "good cause" for non-appearance in O.IX.R.7 and "sufficient cause" for the same purpose in O.IX R.13 as pointing to different criteria of "goodness" or "sufficiency" for succeeding in the two proceedings; and as inapplicability of the rule of res judicata. As this ground was not seriously mentioned before us, we need not examine it in any detail, but we might observe that we do not see any material difference between the facts to be establishment for satisfying the two tests of "good cause" and "sufficient cause". We are unable to conceive of a "good cause" which is not "sufficient" as affording an explanation for non-appearance, nor conversely of a "sufficient cause" which is not a good one and we would add that either of these is not different from "good and sufficient cause" which is used in this context in other statutes. If, on the other hand, there is any difference between the two it can only be that the requirement of a "good cause" is complied with on a lesser degree of proof than that of "sufficient cause" and if so, this cannot help the appellant, since assuming the applicability of the principle of res judicata to the decisions in the two proceedings, if the Court finds in the first proceeding, the lighter burden not discharged, it must a fortiori bar the consideration of the same matter in the later where the standard of proof of that matter is, if anything, higher."
20. Thus, as per material on record, I find the conclusion arrived at by the Rent Controller to be just and legal. The tenant did not put in appearance despite due service and in application for setting aside ex parte order did not express his readiness and willingness to tender the arrears of rent as claimed by the landlord so as to construe the same to be "good cause" for setting aside ex-parte order. Accordingly, finding no merit in this Civil Revision, the same is ordered to be dismissed. No order as to costs.