NATVARLAL VIRJIBHAI Vs. ARUNBHAI HARIDAS TANNA

JUDGEMENT

(1.) Rule. Mr RC Kakkad waives service of Rule.

(2.) The respondent-landlord filed Civil Suit No.585 of 1985 for possession and for recovery of arrears of rent. For that purpose, notice dated 22.6.1985 was sent which was served on the petitioner-tenant on 26.6.1985 i.e. Ex.40. It is stated that no reply was filed by the petitioner in the trial Court disputing the rent as standard rent. Thereafter, the written statement was filed. In the written statement, the petitioner has raised a dispute regarding the standard rent and the learned counsel appearing for the petitioner in the trial Court filed an application Ex.32 under Section 11(3) of the Bombay Rent Act for fixing or determining interim standard rent on 4.1.1986. It is not disputed that the learned counsel who filed the application for fixing the standard rent was selected in the Judicial Department and he left the practice. The application Ex.32 was decided by the trial Court on 2.2.1987 whereby the defendant-petitioner was directed to deposit the entire arrears of rent at the rate of Rs.40/-p.m. on or before 4.3.1987 and to pay or deposit regularly the amount of monthly rent. On 29.8.1987, the trial Court passed an order directing the defendant-tenant to comply with the order dated 2.2.1987 on or before 10.9.1987. The respondent filed an application Ex.34 on 29.8.1987 with the prayer to strike out the defence of the petitioner-tenant on the ground that the order dated 2.2.1987 has not been complied with and no amount of rent was deposited by him. The trial Court passed an order on 10.9.1987 striking the defence of the defendant-petitioner. It is also stated that some application was also filed by the landlord for expeditious hearing and decision. The trial Court decreed the suit vide judgment and decree dated 4.8.1989. It is stated that the landlord filed an Execution Application No.113 of 1989 on 30.12.1989 but as the petitioner had filed an appeal, the execution proceedings were not proceeded further due to pendency of the appeal. During the pendency of the appeal, ad-interim order on Ex.6 was passed on 11.1.1991 directing the stay of execution of the decree passed on Regular Civil Suit No.585 of 1985 by the learned Joint Civil Judge (JD), Junagadh to the extent of possession on the appellant depositing the entire arrears of rent within five weeks from the date of the order and to deposit rent regularly as and when falling due and also to file an undertaking before the trial Court and also with a direction not to transfer the suit property by sale, gift, exchange or in any other manner or alienate it till further orders. He was also required to file an affidavit to the effect that he is in exclusive possession of the disputed suit premises. The lower Appellate Court dismissed the appeal vide judgment and order dated 24.10.2001 confirming the findings arrived at by the trial Court. Hence, this revision application has been filed for challenging the judgment and decree passed by the Courts below.

(3.) The main contention of the learned counsel for the petitioner is that no doubt application Exh.32 was filed by the learned counsel appearing for the defendant-tenant on 4.1.1986 and it was also signed by the defendant-tenant but thereafter the counsel for the petitioner was selected as a Judge in the Judicial Department and he did not inform the petitioner regarding his leaving the profession as an advocate and joining the service in the judicial department and for engagement of another counsel. Hence the petitioner was not aware of the proceedings of the suit pending before the trial Court and the proceedings of the trial Court continued ex-parte after 4.1.1986. When the order dated 2.2.1987 was passed, the petitioner was not aware of this order nor any notice was sent to the petitioner either by the trial Court or by the landlord. The next order dated 29.8.1987 was passed but the petitioner was not aware regarding that order also as the petitioner had no knowledge about the proceedings going on against him ex-parte. The application Exh.34 was also moved by the landlord on 29.8.1987 for striking out the defence of the defendant-tenant. No copy or notice was issued to the petitioner of that application. Hence the petitioner was not aware about the filing of that application Exh.34 and subsequently the order was passed on 10.9.1987 striking the defence of the defendant-tenant. As the proceedings were going on ex-parte, the petitioner was also not aware of the said order dated 10.9.1987. As such, the whole proceedings continued against the petitioner ex-parte. Neither the landlord informed the petitioner nor the Court issued any notice to the petitioner for engaging another counsel though the trial Court in the order dated 2.2.1987 has observed that Shri AN Chandegar learned advocate for the defendant having been appointed in the Judicial department has not remained present on behalf of defendant No.1 for hearing the application. From this observation, it appears that the trial Court was aware of the fact that the advocate of the defendant-tenant has been selected and appointed in Judicial Department even then no notice has been issued to the petitioner for engaging another counsel. Both the Courts below have not cared to consider the relevance of the absence of the petitioner's counsel at the time of hearing of the said proceedings. The learned counsel also pointed from the judgment of the lower Appellate Court that nowhere the lower Appellate Court has considered the aspect that the petitioner's counsel was selected and appointed as a Judge in the Judicial Department and it has not been considered necessary to issue a notice intimating that no one is appearing on his behalf and he would be at liberty to engage another counsel or to argue himself in person. Though the petitioner has taken three grounds narrating the fact in the memo of the appeal itself that the petitioner's advocate was selected and appointed as Judge in the Judicial Department hence the parvi on his behalf could not be done, the lower Appellate Court has not recorded any finding that what would be the effect and what would be the result of non-appearance of the learned counsel for the defendant-tenant during the pendency of the proceedings. Had it been so, the lower Appellate Court could have remanded the matter to the trial Court for giving an opportunity of hearing to the defendant-tenant for placing his case and for hearing but the Appellate Court has not considered at all the relevance of the opportunity to be given to the defendant-tenant for compliance of the orders dated 2.2.1987, 29.8.1987 and 10.9.1987 and to pass appropriate orders in the facts and circumstances of the case and as such the whole proceedings of the suit are vitiated for non-compliance of the principles of natural justice by not affording an opportunity of hearing to the defendant-tenant.