Punjab-Haryana High Court
M/S Gopi Chand Mukesh Chand vs Komal Kumar on 12 January, 2011
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CR No.166 of 2011 (O&M) -1-
******
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.166 of 2011 (O&M)
Date of decision:12.01.2011.
M/s Gopi Chand Mukesh Chand ...Petitioner
Versus
Komal Kumar ...Respondent
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Lokesh Sinhal, Advocate,
for the petitioner.
*****
RAKESH KUMAR JAIN, J.
CM No.661-CII of 2011 Application is allowed as prayed for.
CM No.662-CII of 2011 Application is allowed as prayed for.
CR No.166 of 2011 (O&M) This revision petition is directed against the order dated 04.12.2010 passed by the learned Civil Judge (Junior Division), Faridabad dismissing the application filed by the petitioner/tenant for setting aside the ex-parte order dated 31.03.2001 and ex-parte ejectment order dated 05.06.2001.
In brief, the respondent/landlord filed a petition against the petitioner/tenant under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 [for short "the Act"] on the ground that the petitioner/tenant has failed to pay the rent from 01.11.1999 till 31.03.2000 @ `907.50/- exclusive of house tax and thereafter from 01.04.2000 till date after the increase of 10%, which comes to `998.25/- exclusive of house tax. On appearance, the petitioner/tenant tendered the demanded rent, as a result of which the learned Rent Controller passed the following order: -
CR No.166 of 2011 (O&M) -2-****** "Present: Petitioner with Sh. B.C.Mittal, Adv.
Respondent with Sh. Deepak Thakur, Adv.
****
Rent `14397.75/- tendered by the
respondent and accepted by the petitioner under protest. Now to come up on 13.03.2001 for filing reply.
Sd/-
Rent Controller FARIDABAD/11.12.2000"
On the adjourned date, the Court had passed the following order: -
"Present: Shri B.C.Mittal, Adv. for petitioner.
Shri Sanjiv Singh Rao, Adv. for respondent.
*****
Written statement not ready. Date is
requested. Opposed. Several opportunities given.
Now to come up on 31.03.2001 for filing of written statement. Last opportunity is granted.
Sd/-
Rent Controller FARIDABAD/13.03.2001"
On 31.03.2001, the Court had recorded the following order: -
"Present: Sh. B.C.Mittal, Adv. for the petitioner.
None for the respondent.
***** Case has been called several times since morning. None has appeared on behalf of the respondent, nor any intimation received so far. It is already 03.05 p.m., waited sufficiently. It seems to the Court that respondent is not interested in pursuing the present petition. Hence, respondent is hereby proceeded ex-parte. Now to come up on 26.05.2001 for ex-parte evidence.
Sd/-
Sudeep Goel, RC/F.bad. 31.03.2001"CR No.166 of 2011 (O&M) -3-
****** On 26.05.2001, the following order was passed: -
"Present: Shri B.C.Mittal, Advocate, for petitioner.
Respondent ex-parte.
*****
One PW is present and examined.
Evidence of the petitioner closed. Now to come up on
05.06.2001 for consideration/arguments ex-parte.
Sd/-
SUDEEP GOEL, RENT CONTROLLER, FARIDABAD/26.05.2001."
On 05.06.2001, the Rent Controller heard the arguments and passed the eviction order. The zimni order recorded in this regard is as under: -
"Present: Sh. B.C.Mittal, Adv. for the petitioner.
Respondent ex-parte.
*****
Arguments heard. Vide my separate
judgment of even date the petition of the petitioner has been allowed. Memo of costs be prepared accordingly. File after due compliance be consigned to record room.
Sd/-
Announced in open Court. Sudeep Goel,
Dt. 05.06.2001. Rent Controller,
Faridabad.5.6.2001."
Insofar as the order of eviction is concerned, the relevant portion of the same reads as under: -
"3. The summons were issued to the respondent and they appeared and date was requested for filing of written statement and rent of Rs.14,397/- was tendered by the respondent and accepted by the petitioner under protest. However, none appeared on behalf of the respondent on 31.03.2001 and respondent was proceeded ex-parte vide order dated 31.03.2001.
4. In his ex-parte evidence, the petitioner has CR No.166 of 2011 (O&M) -4- ****** examined himself as PW-1 and after the counsel for the petitioner has closed his evidence, as per statement separately recorded.
5. I have heard the Ld. Counsel appearing on behalf of the petitioner Sh. B.C.Mittal, Adv. and have gone through the record available on the file.
6. In his ex-parte evidence, the petitioner examined himself as PW-1 and stated on oath that he has given on rent the disputed shop to the respondent on rent from 12.04.1972 vide written rent agreement. At present, the rent is Rs.998.25 ps. per month. The respondent tendered the rent from 01.11.1999 to 31.03.2000 at the rate of Rs.907.25 ps. per month totaling of Rs.4537.25 ps. from 01.04.2000 to 21.12.2000 at the rate of Rs.998.25 ps. totaling of Rs.8,884.25 ps. He tendered Rs.100/- less than the total amount of rent due. It was further stated by Chan Parkash, the petitioner that amount of house tax is also due from the respondent which he has not paid. The shop is also sublet by the respondent to a person namely Krishan without seeking permission from the petitioner which is against the rent agreement. He also proved the Ex.P1 rough site plan and Ex.P2 the rent deed.
7. I have gone through the evidence led by the petitioner very carefully and have perused the documents placed on the file. The statement of the petitioner appearing as PW-1 find corroboration from the documents placed on the record. His statement stands unrebutted.
8. The copy of the site plan is Ex.P1 and Ex.P2 is the copy of the rent note. All these documents also CR No.166 of 2011 (O&M) -5- ****** supports the case of the petitioner. For all these reasons, I therefore, accordingly held that petitioner has proved his case ex-parte. It is proved by the petitioner that tendered rent from 01.11.1999 to 31.03.2000 Rs.100/- short. He also not paid the house tax. As such the petition of the petitioner is allowed ex-parte and respondent is directed to hand over the peaceful possession of the shop detailed in para no.1 of the petition within three months from the date of passing of this order. Memo of costs be prepared accordingly. File after due compliance be consigned to record room."
After the eviction order was passed, the petitioner filed an application for setting aside the order dated 31.03.2001 by which he was proceeded against ex-parte and the ex-parte order dated 05.06.2001 by which he was ordered to be evicted from the demised premises, inter alia, on the ground that Shri Sanjiv Singh Rao, his counsel before the learned Rent Controller, had got tendered the rent and did not pursue the ejectment petition and had verbally told the petitioner that the said petition was withdrawn by the landlord. Because of this reason, the petitioner did not pursue the ejectment petition and treated the same to have been withdrawn as informed by his advocate before the learned Rent Controller. The said application for setting aside the ex-parte order has been dismissed on 04.12.2010, against which the present revision petition has been filed.
Learned counsel for the petitioner has vehemently argued that the learned Rent Controller has committed an error in dismissing the application on the ground that it has been filed beyond the period of 30 days as provided under Article 123 of the Indian Limitation Act, 1963. He has relied upon a decision of this Court rendered in the case of Sohan Lal Vs. Smt. Parkash Kaur and others, 2009(1) RLR 57 to contend that the Rent Controller is a persona designata and is not a Court and as such, the provisions of the Limitation Act are not applicable to the proceedings before the Rent Controller. It is also CR No.166 of 2011 (O&M) -6- ****** submitted that the landlord had filed three more ejectment petitions, in which the petitioner had tendered the rent and they were ultimately not pressed by the landlord.
I have heard learned counsel for the petitioner and have perused the available record.
The question before the Court is as to "whether there is a ground for setting aside the order dated 31.03.2001 by which the petitioner was proceeded against ex-parte and the ex-parte ejectment order dated 05.06.2001 by which he has been ordered to be evicted". From perusal of the aforesaid zimni orders, it is apparent that the petitioner was present in Court on 11.12.2000 when he tendered the rent and the case was adjourned to 13.03.2001 for filing reply by him. On 13.03.2001, counsel for the petitioner had taken time to file reply. Last opportunity was granted to file the same and the case was adjourned to 31.03.2001 and on that date, neither the petitioner nor his counsel appeared, as a result of which the petitioner was proceeded against ex-parte and the case was fixed for ex-parte evidence and the learned Rent Controller, after taking ex-parte evidence, decided the ejectment petition in accordance with law. The only reason assigned for absence of the petitioner on 31.03.2001 is that his counsel before the learned Rent Controller had told him that after tendering the rent, the petition was withdrawn by the landlord. However, this is not factually correct because after tendering the rent, the case was adjourned by the Court, in presence of the petitioner, for filing of reply. The petitioner's counsel had taken time on the adjourned date for the same purpose and disappeared on 31.03.2001. In this regard, the learned Court below has given a categoric finding in para No.12 of the impugned order, which reads as under: -
"12. Even otherwise, the applicant has merely averred that he was told by his previous counsel Shri Sanjeev Singh Rao, Advocate that petition has been dismissed as withdrawn. However, he has neither cited nor examined Shri Sanjeev Singh Rao, Advocate as a witness. It was for the applicant to prove that due to CR No.166 of 2011 (O&M) -7- ****** the bona fide belief and impression as a result of the representation of his counsel he could not pursue the case. The failure to examine the said crucial witness who could have provided the clinching evidence in this case goes against the applicant. Therefore, the applicant is not entitled for setting aside of the ex-parte order dated 31.03.2001 and ex-parte judgment/order dated 05.06.2001."
In view of the aforesaid, even if the other reasons assigned by the learned Court below for dismissing the application are not taken into consideration for the time being, the reason assigned in para No.12 of the impugned order is sufficient to reject the prayer of the petitioner for setting aside the ex-parte proceedings and the eviction order.
The upshot of the entire discussion results into failure of the revision petition and as such, the same is hereby dismissed in limine, however, without any order as to costs.
January 12, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE