VASANTRAO MUKUNDRAO DESHMUKH Vs. PURUSHOTTAM BALWANTRAO AGARKAR

JUDGEMENT

(1.) CHALLENGE in this petition is to the order passed by Resident Deputy Collector, Buldana on 24-1-1992. By the said order the resident Deputy Collector. Appellate Authority under Clause 21 of C. P. and berar (Letting of Houses) and Rent Control Order, 1949 has rejected the appeal of the petitioner/tenant and has upheld the orders dated 12-6-1989 and 30-6-1989 passed by the Rent Controller, Khamgaon. By the order dated 12-6-1989 the Rent Controller has rejected the application moved by present tenant for setting aside ex parte order and by the order dated 30th June, 1989 the said Authority has granted permission to present respondent landlord to terminate tenancy of the petitioner under Clause 13 (3) (i), (ii) and (v) of C. P. and Berar (Letting of Houses) and Rent Control order, 1949 (for short 'rent Control Order" ). Necessary facts in this respect can be briefly summarise thus :

(2.) THE respondent landlord filed proceedings on 12th October, 1988 before the Rent Controller, Khamgaon under Clauses 13 (3) (i), (ii) and (v) of Rent control Order seeking permission to terminate tenancy of the present petitioner. The landlord has pointed out that he has purchased the suit house by sale-deed dated 3rd January, 1981 and after purchase the landlord demanded rent of Rs. 125/- per month from the present petitioner but he failed to pay the rent. The respondent landlord therefore, filed Regular Civil Suit No. 39 of 1981 for eviction and possession and for recovery of arrears of rent before the third Joint Civil Judge, Jr. Dn. , Khamgaon and in it decree in his favour was passed. The present petitioner/tenant then preferred Regular Civil Appeal no. 49 of 1982 which came to be decided on 24-6-1988. The appeal was allowed in view of the fact that Government Notification making provisions of Rent Control Order, 1949 applicable only to the houses constructed on sites lying vacant before 1-1-1951 was quashed and set aside by this Court in its judgment reported at (Prabhakar Tanbaji Rokde v. State of maharashtra), 1986 (Supp.) Bom. C. R. (N. B.)593 : 1985 Mh. L. J. 548. The appellate Court found that tenancy of the present petitioner was thus, protected and he could have been evicted after first obtaining permission from the Rent Controller. The respondent landlord in his application pointed out that during pendency of the appeal the landlord filed application under order 15-A of the Code of Civil Procedure and thereafter only the respondent paid an amount of Rs. 1,625/- on 31-12-1987 and thereafter deposited some arrears in subsequent period. The landlord thus, contended that the petitioner is habitual defaulter and he is never paying rent regularly. He also contended that the tenant is residing at Pimpal-Doli, Tahsil Patur, district : Akola. He has given address in his memo of appeal accordingly and as such he has left Khamgaon and does not need the house any more. He further stated that he has sub-let the house to one Mr. Rathi who resided there for 1-1/2 years and thereafter boys in the locality and elsewhere entered the house and used it for playing cards etc. He in short, contended that the respondent/tenant is not residing in the suit house.

(3.) IT appears that notice of this proceedings was served upon the petitioner/tenant at his residence at Pimpal Doli. The petitioner could not file w. S. before the Rent controller and on 17-4-1989 the case was fixed for filing reply. On that date the Rent Controller passed order and proceeded ex parte against the tenant. On 28-4-1989 the tenant/petitioner filed application for setting aside exparte order and in it pointed out that his father expired in the month of January, 1989 i. e. in the last week of January and he was preoccupied with various religious rites and customs because of the said death. He stated that he is patient of Hyper Tension and received recurrent attacks in the month of March and April and therefore, he could not approached any advocate and could not arrange to appear in the proceedings before the Rent controller. He states that he, therefore, could not remain present on 17-4-1989. This application was opposed by the respondent/landlord on the ground that on 11-11-1988 i. e. returnable date on which the proceedings were fixed before the Rent Controller the petitioner/tenant appeared through his son and sought adjournment on next date one Advocate appeared for him and took adjournment. The said Advocate again appeared and took adjournment on 29-11-88, 20-12-88 and 30-12-1988. On 30-12-1988 the tenant was present with his Advocate. On 9-1-1989 again Advocate for tenant prayed for adjournment. On 17-2-1989 the tenant again took adjournment this was repeated to 27-2-1989 and 21-3-1989. Hence, in this background on 17-4-1989 as no written statement was filed the tenant was proceeded ex parte. On 28-4-1989 ex parte evidence of landlord was recorded and after hearing arguments the case was fixed for 10-5-1989 for passing of orders. It is at that stage an application for setting aside ex parte order came to be filed. The learned Rent controller after considering all this was pleased to reject that application on 12th June, 1989. Against this order it is the contention of the petitioner that he could not proceed to file any appeal as in the mean while i. e. on 30th June, 1989, the Rent Controller passed final order in the proceedings and granted permission to respondent landlord to terminate his tenancy. This order granting permission was challenged by filling appeal under Clause 21 of Rent Control Order before the Resident Deputy Collector, Buldana. In the appeal grounds in relation to the proceedings taken exparte by the Rent controller as also grounds for validity of grant of permission on merits are taken. The Appellate Authority heard this appeal on 24th January, 1992 dismissed it. The present petition is directed against this order.