ATUL ANAND Vs. M M BHARDWAJ

JUDGEMENT

(1.) AGGRIEVED by the order dated 8th December, 2014 whereby the appeal of the petitioners was dismissed upholding the order of the learned ARC dated 7 th August, 2013, the petitioners prefer the present petition.

(2.) A perusal of the proceedings before the learned ARC would indicate that in Eviction Petition No. 59/2009 filed on the grounds under Section 14(1)(a) DRC Act the petitioners were proceeded ex -parte vide order dated 22th December, 2011. The petitioners filed an application under Order IX Rule 7 read with Section 151 CPC which was allowed for the reason the petitioners submitted that their previous counsel had passed away and for this reason nobody appeared on their behalf. Learned ARC vide the order dated 27th November, 2012 held that though the grounds incorporated in the application were not in consonance with the order sheet and the perusal of the file reveals that time and again petitioners Atul Anand and his wife Smt. Shellay Atul Anand have been seeking adjournments and they were inducted as tenants vide rent agreement dated 10th January, 2006 @ Rs. 3100/ - per month and Rs. 5000/ - as security and since the petitioners expressed their inability to pay the rent the respondent reduced the same to Rs. 1100/ -, however the same was also not paid, still in the interest of justice application under Order IX Rule 7 CPC read with Section 151 CPC was allowed subject to a cost of Rs. 10,000/ - to be paid to the respondent M.M. Bhardwaj so that the petitioners could be afforded an opportunity of being heard and substantial justice is not denied to them. The petitioners were directed to cross -examine the respondent on the next date of hearing failing which the order dated 22nd December, 2011 would automatically revive and the matter was listed for 2 ndJanuary, 2013.

(3.) ON 2nd January, 2013 despite service of Court notice petitioners were not present and an adjournment was sought by the proxy counsel for the petitioners and there was no reason explained as to why they did not come on that date nor whether they intended to pay the cost as directed vide order dated 27th November, 2012. It was directed that if the petitioners fail to appear in person and pay the cost the previous order would revive. On 3rd January, 2013 an application was moved by the petitioners for waiving of the cost as imposed vide order dated 27th November, 2012 while allowing the application under Order IX Rule 7 CPC which was turned down and petitioners were directed to pay the cost that very day by 2 O'clock. By 2 O'clock the petitioners paid only a sum of Rs. 5000/ - and undertook to pay the remaining Rs. 5000/ - within three days. Thus in the interest of justice last and final opportunity to cross -examine Respondent/plaintiff's witnesses on 2nd February, 2013 was granted and it was noted that if the remaining cost was not paid then the opportunity to cross -examine PWs would be closed. On 20th February, 2013 none appeared on behalf of the petitioners till 1.00 AM on repeated pass -overs. Since the case was of the year 2009 and pertained to a senior citizen, the opportunity to the petitioners to cross -examine PWs was closed and the matter was listed for the petitioner's evidence by way of affidavit on 17th April, 2013.