DWARKA DEVI AND ORS. Vs. HANS RAJ

JUDGEMENT

(1.) THE Petitioner -landlord brought an application for ejectment of the tenant -Respondent Hans Raj. A number of grounds were taken in the application but the only ground pressed was that of non -payment of rent. Notice was issued to the tenant with which he was served on 11th of March, 1960. The date for the appearance was 15th of March, 1960. The tenant did not appear on that day and proceedings were taken ex -parte against him and the case was adjourned for ex -parte evidence of the landlord. Before the next date, however, the tenant appeared and made an application for setting aside of the ex -parte proceedings. The ground taken was that on 15th of March, 1960, he was lying ill and that he sent a medical certificate of a qualified doctor together with Rs. 200 through one Jagdish Lal with the direction that he may produce the medical certificate before the Court and deposit the money towards the arrears of rent and interest, etc. According to Jagdish Lal, when he appeared in Court, he was told that his presence could not be recorded and that he should engage a counsel. After taking evidence, the Rent Controller by his order dated 16th of June, 1961, came to the conclusion that there was good cause for the tenant's absence on 15th of March, 1960, and consequently, set aside the ex -parte proceedings. On that very day, the tenant tendered not only the arrears, as they were due up to the date of application, but all arrears, amounting to Rs. 473 up to 6th of June, 1961. In addition, he deposited Rs. 26 towards interest and Rs. 25 as costs assessed by the Rent Controller. As the landlord refused to accept this tender the Rent Controller tried the issue whether the tender was valid or not. In view of the provisions of Order 9, Rule 7, Code of Civil Procedure, it was held that the payment on the date when the ex -parte proceedings were set aside would be treated as if the same had been made on the date fixed for his appearance, and that, consequently, the tender was valid and the application of the landlord was dismissed. This order was upheld by the Appellate Authority, and the landlord has come up in revision.

(2.) THE short question for decision in this case is, if the Court concerned finds that there was good cause for the absence of the tenant on the first date of hearing and, consequently, sets aside the ex -parte order, what is the effect thereof? Order 9, Rule 7, Code of Civil Procedure, is as follows:

(3.) THE learned Counsel for the Appellant urged that the view taken by Soni J. is not correct. Djiter alia,, he urged that the provisions of the Code of Civil Procedure apply only in certain respects, not including the question of setting aside the ex -parte orders, as provided in Section 16 of the Urban Rent Restriction Act. Section 16 provides that for the purposes of this Act, the Courts under the Act shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure. I am, however, of the view that notwithstanding the fact that no specific powers in this respect are given to the Court, the inherent powers of the Courts under the Act to promote justice cannot be said to have been taken away. One may take the extreme case where the tenant -Defendant has been duly served and he starts from his house with the intention of attending the Court taking with him the arrears but is knocked down in the way and is unable to reach the Court. It will be really perpetrating injustice to hold that in such a case the payment made by him subsequently, when the ex -parte order against him has been set aside, would not be the proper payment within the meaning of the Act. In any case, I feel that, in view of the provisions of Order 9, Rule 7, and the decision of Soni, J., in the above -mentioned case, the order of the Courts below is well based and there is no force in this revision and the same is hereby dismissed. No order as to costs.