AJIT SINGH Vs. BANWARI LAL

JUDGEMENT

(1.) BANWARI Lal Respondent No. 1, filed an ejectment application against Ajit Singh, petitioner, and Baggu Ram, respondent No. 2, in the court of the Rent Controller, Fazilka. Ajit Singh, petitioner, closed his evidence on January 28, 1982, and the case was fixed for the evidence of Banwari Lal, landlord, in rebuttal. The Rent Controller adjourned the case to 16th March, 1982, providing a last opportunity to the landlord to lead his evidence in rebuttal. He was burdened with cost of Rs. 20/-. On 15th March, 1982, no evidence in rebuttal was present. A medical certificate issued by Dr. Raj Kumar Dhingra of Fazilka certifying that Banwari Lal landlord, was confined to bed and would remain so confined for about a month, was produced in court. A request was received from Shri Gian Parkash, handwriting expert, expressing his inability to attend the court till 20th March, 1982. The learned Judge granted an adjournment subject to the payment of Rs. 30/- as costs for the examination of the expert witness and fixed the case for 20th March, 1980.

(2.) ON 20th March, 1982, the case was taken at 3-50 p.m. Shri Gian Parkash, document expert, was present. A request was made on behalf of the landlord that since the expert had not been able to prepare the report in full because of the non-inspection of the genuine signature of the petitioner, the case can be adjourned. The Rent Controller was not impressed by this reasoning. However, he observed that on an application moved by the counsel for the landlord, Shri Vidya Sagar, Advocate, had been appointed as Local Commissioner, to record the statement of the landlord that very day at 4 p.m. In this situation, if he commenced examining that witness the purpose of appointing the local commissioner would be frustrated. He bound down the witness and adjourned the case for 3rd April, 1982. On that date, the counsel for Ajit Singh made an application that Banwari Lal had failed to pay the cost of Rs. 30/- and he be disallowed to prosecute the ejectment application. The learned counsel for Banwari Lal offered to pay the costs, but they were not accepted by the learned counsel for Ajit Singh. On a request made by him, the witnesses present were not examined and the case was fixed for 8th April, 1982, for arguments. On that date, after hearing the learned counsel for the parties, the Rent Controller dismissed the application filed by Ajit Singh for disallowing Banwari Lal to prosecute the ejectment application.

(3.) THERE is no merit in the contentions of the learned counsel. It is apparent from the above narration of facts that Banwari Lal was confined to bed and orders had been passed by the Rent Controller that his statement should be recorded by Shri Vidya Sagar, Advocate (appointed as local commissioner) at 4 p.m. on 20th March, 1982, at his residence. It shows that Banwari Lal was not in a position to attend the Court and in fact did not attend the Court on 20th March, 1982. The Rent Controller was conscious of the fact that the statement of Banwari Lal had to be recorded at 4 p.m. on 20th March, 1982. Therefore, he adjourned the case (which he had taken up for consideration at 3-50 p.m.) without recording any evidence because if the Rent Controller had started recording the evidence then the purpose of appointing the local commissioner would have been frustrated. Since the case was adjourned immediately after it was taken up, there was no time for the costs to be paid. Banwari Lal had not committed any intentional default in the payment of costs. They had not been paid, because of circumstances beyond his control. The Rent Controller did not think it proper to disallow him from prosecuting the ejectment application. The order of the learned Rent Controller is wholly unexceptionable. He has rightly observed that the costs were not paid as a result of circumstances beyond the control of Banwari Lal, because of paucity of time and in view of the fact that the petitioner had to be examined by the local commissioner at his residence at 4 p.m. no proceedings could be conducted by the Court on 20th March, 1982. The failure on the part of the petitioner was not intentional. Though the Rent Controller has not relied upon this circumstance, yet it is manifest from his order that Banwari Lal was not in a position to move about on 20th March, 1982, and was not present in Court. So, he was not in a position to tender the costs.