DIRECTOR, ESI SERVICES Vs. KAMLA DEVI

JUDGEMENT

(1.) AS regards the ex parte order, from the proceedings of the lower Court I find that on 5.9.89 the non -applicant and their counsel were absent. Therefore, the case was directed to proceed ex parte and it was fixed for 7.10.89. On 7.10.89, the evidence could not be recorded, but no application for setting aside the ex parte order was filed. Thereafter on 24.10.89 also no application was filed. On 7.11.89, 29.11.89 and 12.12.89 although the counsel for the present applicant was present, but no application for setting aside the ex parte order was filed. Therefore on 29.12.89 the Court again observed that despite the order of proceeding ex parte, no application for setting aside the ex parte order has been filed and, therefore, again the case was fixed for evidence on 10.1.90. On that date the evidence of the applicant was recorded and the case was fixed for arguments and orders on 24.1.90. On 24.1.90 the arguments were heard and the case was fixed for orders on 7.2.90. On 7.2.90 both parties remained present, but the order was not passed. The case was adjourned to 3.3.90, then to 24.3.90 and thereafter, after the adjournment of the case, an application was filed on 24.3.90 which was directed to be kept on 11.4.90. Then also the judgment could not be passed and the case remained pending on 11.4.90. On 18.5.90 · the application for setting aside the ex parte order was dismissed and the case was fixed for 2.6.90. Thereafter due to the transfer of the R.C.A. the judgment could not be passed. The new R.C.A. heard the arguments on 11.10.90 and finally the order impugned was passed.

(2.) FROM the aforesaid proceedings it is manifest that the present applicants -tenants were grossly negligent in the matter of their presence in the Court not only on the dates of hearing but even after the passing of the ex parte order. If there was any sufficient cause preventing the petitioners or their counsel from appearing in the Court on a particular date of hearing, an application could always be filed on the next day or after some time or atleast before the next date of hearing. But consecutively on many dates neither the present applicants - tenants remained present nor moved any application for setting aside the ex parte order. It is only when the evidence was recorded and arguments were heard and the date of pronouncement of the judgment was adjourned from time to time, then this application was moved. So, in my opinion, there is nothing illegal or improper in the order of the lower Court in disallowing the application for setting aside the ex parte order. Now the only plea which survives is availability of alternative accommodation and that the house could not be evicted for residential purposes. As regards the availability of another house, the applicant landlord has said in her statement that she is at present residing at 37, Yashwant Road on the fourth floor and her position in the house is that of a tenant. Her actual house is only at Pratap Nagar, which is in the ground floor and she wants to get it vacated for her own residence because she is a patient of different diseases and has undergone several operations. She is also short sighted and she had acute pain in her joints. This detailed statement of the applicant has not been rebutted and remains unchallenged. She has also filed documents to show that the authorities were inclined to vacate the house, but they did not do so. Therefore, in the light of the above statement, the finding of the lower Court that the house is needed bona fide by the landlord is proper and does not require any interference. A point was raised by me about the cognizance taken by the R.C.A. on the strength of the order of the District Judge, but there can be no manner of doubt that the applicant is governed by S. 23 -J of the M.P. Accommodation Control Act. This Court in Radhabai v. Arjundas Shivandas (1988 JU 441) has held that in the case of widow no distinction can be drawn with reference to the tenancy in question being prior or subsequent to her widowhood. The application by the widow before the R.C.A was, therefore, held to be maintainable. I am in respectful agreement with the aforesaid view. Therefore, the R.C.A had the jurisdiction to decide this case. Further more no objection on ground has been taken by the applicant.

(3.) NOW , as regards the need of the widow for residential purpose the Supreme Court in the case of M/s. EPC Steel Limited, Calcutta v. Union of India and another with Smt. Santosh Sethi v. M/s. Indian Produce Export Corporation and another [JT 1991 (I) SC 447] has held that the premises might have been let out by the applicant as a widow or they might have been let out by her husband, or even by herself before she had become a widow. The Legislature wanted to give a special privilege to the landlady who is a widow notwithstanding whether the premises were let out before or after she became widow. Such conferment of special benefit on a widow -landlady is permissible even under the provisions of Article 15(3) of the Constitution which is an express exception to the provisions of sub -clauses (1) and (2) of that Article. The widow has only to prove that she has a bona fide need of the residence in question for her own residence like any other landlord. In paragraph 6 of the aforesaid judgment it has also been stated that the Court has held in the accompanying judgment of S. Surjit Singh Kalra v. The Union of India and another with Shri Mahendra Rai v. The Union of India and Col.Ashoka Puri [JT 1991 (I) SC 417] that the widow landlady under S. 14 -D of the Delhi Rent Control Act, 1958 can apply for possession of the premises under the respective provisions even if the premises are not let for residence. 1988 JLJ 441, JT 199 (I) SC 447 and JT 1991 (I) SC 417 relied on. Revision dismissed.