MANOHAR LAL Vs. BAL RAJ ARORA

JUDGEMENT

(1.) THIS is a revision application under Rule 6 of the Delhi Rent Control, (Procedure) Rules, 1847 seeking to revise the order of the Senior Subordinate Judge posted in Delhi directing that the applicant be evicted from the premises.

(2.) THE suit was originally brought by Mr. Bal Raj Arora landlord against the applicant who was his tenant alleging that he had not been paying his rent and that he Had been using the premises for purposes other than for which the premises had been let and also in contravention of the terms of the lease between the Government and the plaintiff. After the plaint had been admitted notice was issued to the defendant to appear and put in his defence. The first date of hearing was 4-9-1951. On that day the plaintiff appeared but the defendant was absent and 'ex parte' proceedings were ordered and the case was adjourned, to the next day. Towards the close of the court's sitting on 4-9-1951 the defendant appeared and put in an application asking that the order regarding 'ex parte' proceedings to be taken against him be set aside as he had been prevented by misrepresentation having been made to him by the plaintiff that he would withdraw the suit and that was the reason for his not coming and attending the Court. The defendant also alleged that he had brought the arrears of rent with him. The Court ordered this application to be heard the next day. This application has been shown as an application under Order 13, Rule 7, but it is really an application under Order 9, Rule 7. Under Order 9, Rule 6, where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, the Court may proceed 'ex parte' if it is proved that the summons was duly served. Under the provisions of Rule 7 of this order where the Court has adjourned the hearing of the suit 'ex parte', and the deft, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. On the 5th of September the Court heard the application of the defendant for setting aside the 'ex parte' proceedings against him. The Court set aside its order of the previous day on payment of rs. 15/- as costs. The result of this order, according to the provisions of Rule 7, is that the Court permitted the defendant to appear "as if he had appeared on the day fixed for his appearance". If the defendant had appeared on the day fixed for his appearance which was the 4th of September and had put in the arrears of rent, then so far as the provision of law concerning the deposit of the money on the first day of hearing is concerned it was satisfied when the money had actually been brought on the 4th though it was ordered to be deposited by the Court on the 5th. In my opinion therefore issues 2 and 3 that were framed in this case should not have been framed by operation of Rule 7. The Court having set aside the 'ex parte' proceedings, the result 08 which being that the defendant was put in the same position as if he had appeared on the first day of hearing, these issues did not arise. The trial Judge held that the deposit must be deemed to have been made on the first day of hearing. Regarding the other issues that arose in the case, the trial Judge came to the conclusion that the premises that were let out to the defendant had no doubt been premises which were business premises but a small portion of the premises being used for residence was not excluded from such use by the defendant. The trial Judge, therefore, held that the arrears having been paid there was no grievance of the landlord proved against the defendant and therefore dismissed the landlord's suit. The landlord appealed. On appeal the Senior Subordinate Judge held that the deposit had not been properly made on the first day of hearing, the Judge regarding that as an important point in the case. Regarding the other matter the Judge held that the premises were meant to be used exclusively for business and that as it was admitted that a small portion was being used for residence, that Judge held that there had been user for a purpose contrary to what they had been let for and contrary to what the government had let them for to the original landlord. The case having thus been made out for the tenant's eviction, the Senior Subordinate Judge accepted the appeal on both these grounds and ordered the applicant's eviction. It is from that order that this revision application has been taken to this Court.

(3.) I have heard learned counsel for the parties at great length. As I have said before, so far as the payment of the arrears of rent on the first day of hearing was concerned, the matter Is concluded by the provisions of Rule 7 of Order 9. If the Court sets aside the 'ex parte' proceedings, it means that the Court accepts the defendant's excuse for not being able to be present at the hearing. The result of the Court's acceptance is that the defendant is put in the same position as if he had actually appeared on the first day of hearing and on the first day of hearing he did bring the money. But even if he did not, If his excuse is accepted that he was misled by the plaintiff and therefore was not able to come, his tender of money to the Court immediately is a proper tender on the first day of hearing. As I have said before, the issues regarding this matter did not arise on the Court deciding this point in the defendant's favour and setting aside the 'ex parte' proceedings.