NARAIN DASS Vs. LT. COL. KULDIP CHAND THAKAR

JUDGEMENT

(1.) The landlord-respondent filed an application for ejectment of his tenant-petitioner from the premises in dispute, which consists of a house, on the ground of non-payment of rent and for his bonafide requirement, for his own use and occupation. The tenant appeared on the first date of hearing, but failed to pay the rent and thus absented himself, and suffered an ex-parte ejectment order on February 24, 1976. Afterwards on February 27, 1978, the tenant-petitioner moved an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte proceedings. Notice of this application was given to the opposite party, reply was filed, issues were framed and some evidence was also led, but ultimately on August 24, 1978, this application was dismissed in default as the petitioner failed to appear. Subsequently, on August 31, 1978, an application for restoration of the application under Order 9 Rule 13 of the Code of Civil Procedure was moved. This application was resisted on behalf of the landlord-respondent. On the pleadings of the parties the learned Sub Judges 1st Class, Amritsar, framed the following issues :-

(2.) After hearing the learned counsel for the petitioner, I do not find any merit in this petition. The learned trial Judge, after going through the entire evidence has given a firm finding that it is not a fit case in which the application of Narain Dass petitioner under Order 9 Rule 13 of the Code of Civil Procedure, dismissed in default on August 24, 1978 should be restored. It is a finding of fact which cannot be interfered with in the exercise of revisional jurisdiction. Apart from that according to the allegations of the respondent, the tenant had appeared on the first date of hearing in the ejectment application, but since he was not in a position to pay the rent he absented himself and suffered an ex parte order. Under these circumstances, this petition fails and is dismissed, with costs. However, the learned counsel for the petitioner undertakes on behalf of his client that he will hand over the vacant possession to the respondent if he is allowed three months' period to vacate the premises. On this undertaking, a period of three months is allowed to the tenant to vacate the premises and hand over the vacant possession to the landlord-respondent with a further condition that he will deposit all the arrears of rent, if any and advance rent for three months within one month in the Court of the Rent Controller.