DIWALIBAI DAMJIBHAI BHATTI Vs. JAIKUMAR GOPALDAS JAIN

JUDGEMENT

(1.) THE petitioners in this case under Art, 227 of the Constitution are two windows of one Damjibhai and his two minor sons Liladhar and Champalal. They along with Damjibhai were occupying certain premises in Amravati town. The opponents are the landlords of those premises. /they filed an application on 2-12-1964 seeking permission to terminate the tenancy of the premises under Clause 13 (3) (I) and (ii) of the Rent Control, Order. The proceedings seem to have protracted for a considerable time and were fixed for 27th January 1966. It may be mentioned that both parties were represented by their counsel before the Rent Controller. On 27th January 1966 the counsel of the opponents-landlords intimated to the Court that Damjibhai was dead. One Sureshchandra it appears, was present in Court on that date and he informed about Damjibhai's death, he being the nephew of Damjibhai The landlords counsel therefore wanted time to bring he legal representatives on record and case was adjourned to 2-2-1966. An application to bring on record the present petitioners was a granted and they were noticed for appearance and evidence on 14-2-1966. On 14-2-1966, the petitioners were represented by an advocate who filed written statement and the case was adjourned to 23-2-1966 for evidence. On this date, neither the petitioners nor their foxed for evidence of the petitioners there being no appearance, the Court closed the case for orders on 28-2-1966. In other words, the Rent Controller decided to proceed ex parte against the petitioners on 28-2-1966. When none was present an order granting permission to the prejudice of the interest of the petitioners was passed.

(2.) ON 28-3-1966, an application was filed on behalf of the petitioners to set aside the ex parte order dated 28-2-1966. in this application the petitioners averred in paragraph 3 that petitioners I and 2 were illiterate and simple ladies, that they are not accustomed to appear in public they being of Gujarathi community and are old and that the petitioners 3 and 4 were minors below 12 years and in these circumstances they did not consider it necessary to go to their counsel on 23-2-1966 as they thought that their counsel will do the needful, but in their absence and for want of their signature, their counsel could do anything in the case and the Court proceeded ex parte against them all and the case was posted to 28-2-1966 and the final order was passed. Under these circumstances, the petitioners prayed that they could not present themselves in court and the interest on minors was involved and therefore, the ex parte order should be set aside.

(3.) THIS application was vehemently opposed on behalf of the respondent landlords as is the case even in this Court. The position seems to be founded on law relating on decision of the Nagpur High Court reported in 1953 Nag LJ (Notes) 211. it was contended that such an application for setting aside the ex parte order is not tenable under the law. This was by way of a preliminary objection raised on behalf of the landlords. I do not find any other objection on merits raised on behalf of the landlords at all.