JAGAT RAM HAMIR CHAND Vs. SHANTI SARUP

JUDGEMENT

(1.) JAGAT Ram has approached this Court under section 15 of the East Punjab urban Rent Restriction Act No. 3 of 1949 in the following circumstances. Shri Shanti Sarup, respondent in this Court, applied for ejectment of Jagat Ram from the Premises in question on the following grounds: (1) That he had not paid the rent for five months due from 3-10-1962; (2) that he had sublet the property; (3) that he had converted the user of the leased premises; and (4) that the property had become unsafe for human habitation. Jagat Ram was served for 7-2-1963 but he did not tender the arrears of rent along with interest on that day but complained to the Rent Controller that no copy of the application had been served on him along with the summonses. The case was accordingly adjourned to 9-2-1963 for filing the written statement. On 9-2-1963, the tenant did not appear with the result that ex parte proceedings were taken against him. The tenant later applied, for setting aside the ex parte proceedings were set aside on 5-3-1963. On the last mentioned date the tenant also tendered arrears of rent along with interest and costs. Shri Shanti Sarup declined to accept the arrears on the ground that the same had not been tendered on the first hearing and was, therefore, not a valid tender. The rent Controller thereupon settled the following issue: Whether the respondent made a valid tender of the arrears of rent due? the contention raised on behalf of the tenant that 7-2-1963 was not the first day of hearing because he had not been supplied with a copy of the application for eviction was repelled by the Rent Controller, in view of the decision in Mela Ram v. Kundan Lal, 63 Pun LR 451 which followed Hira Lal v. Gian Singh and Go. , AIR 1951 Punj 441 and Mukh Ram v. Siri Ram, 61 Pun LR 561. On this view, the learned Rent Controller came to the conclusion that the arrears of rent had not been tendered on the first day of hearing with the result that the landlord was entitled to an order of ejectment. The landlord's petition was thus allowed and an order of ejectment passed on 8-4-1963. The matter was taken on appeal to the appellate authority who endorsed the view of the Rent Controller with the observation that the decision of this Court were binding on him. This observation was necessitated because on behalf of the tenant-appellant some rulings of other High Courts were cited before him. Dwarka devi v. Hans Raj, 65 Pun LR 705, in which a learned Single Judge of this Court had observed that deposit by a tenant on the day on which the ex party order is set aside must be treated as if the deposit was made on the day fixed for his appearance was distinguished its the appellate authority on the ground that the facts there were different and also that there was no evidence on the record before it showing that on 9-2-1963, the adjourned date of hearing, the tenant had sent anyone with arrears of rent costs and interest etc. An unreported decision of another learned Single Judge in Banarsi Das v. S. Santokh Singh Civil Revn. No. 697 of 1959 (Punj) was also brought to the notice of the appellate authority taking the same view as has been taken in the decisions relied upon by the Rent controller. The appeal was thus dismissed. On revision, in this Court, the learned counsel for the petitioner has submitted that the view of law taken by the Rent Controller and the appellate authority is not justified on the language of the statutory provision. He has laid stress on the proviso to section 13 (2) (I) of the Rent Act which lays down that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at 6 per cent per annum on such arrears together with the costs of the application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent with in the time mentioned in clause (i ). He has laid stress on the expression "after the service" and has submitted that the essential prerequisite of due service is that a copy of the application for ejectment must be served on the tenant. He has contended that the decisions on which reliance has been placed have ignored this vital aspect. Assistance has also been drawn from the decision in Dwarka Devi's case, 65 Pun lr 705 and it has been submitted that it was incumbent or at least open to the landlord to have opposed the prayer for setting aside the ex party order on the ground that no valid tender having been made on the first date of hearing the setting aside of the ex party order was futile and not called for. Having not objected to the setting aside of the ex parte order, it is contended that the landlord cannot be permitted to object to the tender being made on the first date when the ex parte order is set aside. The learned counsel for the respondent has to addition to the authorities mentioned above drawn my attention to a recent decision of a learned Single judge of this Court in Mukandi Lal v. Ghanya Lal, Civil Revn. No. 491 of 1962 dated 17-5-1963 (Punj) in which the tenant had been served by means of affixation at the outer door of his residence. This was contended not to be due service for the purposes of the proviso to section 13 (2) (i) of the Rent Act because no copy of the application was either affixed at the outer door or supplied to the tenant. This contention was repelled on the ground that service by affixation was attempted after it was found that the tenant could not be personally served and that Order 5, Rule 17, C. P. C. does not require a copy of the application or of the plaint to be affixed at the outer door along with the summonses. With this observation, the tenant there was held to have been duly served. After this holding the learned Single Judge made a reference to Mela Ram's case, 63 Pun LR 451 and dismissed the tenant's revision. Another unreported decision of this Court by G. D. Khosla C. J. sitting singly in Nar singh v. Raja Ram, Civil Revn. No. 396 of 1960, dated 30-3-1961 (Punj) has also been brought to my notice. In that case, the tenant had remained unserved for a number of hearing and eventually the case came up for hearing on 7-8-1958 on which date the tenant did not appear, although service had been effected on him two days earlier. Ex parte proceedings were taken against him and the next date of hearing was fixed for 14-8-1958. Two the Controller and applied for setting aside of the ex parte order. This application was heard on 14-8-1958 when the tenant also made a tender of the arrears of rent etc. due from him. The application for setting aside the order was allowed on the ground that the tenant had shown good cause for his absence on 7-8-1958. The learned Chief Justice on this view observed that it was quite clear that 7-8-1958 could not be treated to be the first date of hearing, in that, the first date of hearing is the date upon which the Court deals with the matter and the defendant appears or should appear to answer the case against him. If service is effected and the defendant appears, then clearly also it is the date of hearing, but if service is effected on the defendant and he does not appear, then the question arises whether or not there was good ground for his absence. In case he absents himself willfully, he cannot be entitled to claim that this was not the first date of hearing and the Court would be entitled to proceed ex parte against him. If however, he can satisfy the court that there was good ground for his absence, then the date cannot be the first date of hearing because the defendant has been able to show adequate reasons for not being present and answering case against him. The tenant's position would be exactly the same as if no service had been effected upon him. With these observations, the tenant was held entitled to claim the advantage of proviso to section 13 (2) (i) and the appellate authority was considered to be justified in dismissing the landlord's application. It is noteworthy that no earlier decision of this Court was brought to the notice of the learned Chief Justice. Another decision of another learned Single Judge of this court in Bicha Ram v. L. Jaipat Rai, Civil Revn. No. 44 of 1959 dated 13-8-1959 (Punj) has also been brought to my notice. That was a landlord's revision and the facts bearing on the point in controversy there are that the first date on which application for eviction had come up for hearing was 23-11-1956, the tenant having been personally served on 20-11-1956. He did not appear on that date and ex parte proceedings were ordered to be taken against him. The case was adjourned to 27-11-1956. Meanwhile on 26-11-1956, the respondent appeared and applied for setting aside the ex parte order. The landlord stated that he had no objection to the setting aside of the ex parte order on payment of costs and ex parte proceedings were accordingly set aside. The tender of arrears of rent etc. was made on that very day. After referring to Manohar Lal v. Bal Raj, AIR 1953 punj 247 a case under the Delhi and Ajmer-Marwara Rent Control Act, 1947, the learned Single Judge observed that neither in law nor in equity could the landlord be heard to say that the tender of arrears of rent could not come within the proviso to section 13 (2) of the Act. With these observations, the landlord's revision was not allowed. The question on which the fate of this revision depends is whether a tenant who has not been served with a copy of the application for ejectment can be considered to have been duly served to be the first hearing within the contemplation of the proviso. Section 20 of the Rent Act empowers the State government by notification to make rules for he purpose of carrying out all or any of the provisions of the Act. My attention has not been drawn to any rule framed by the State Government and the expression "due service" has not been defined in the Act. Can the provisions of Civil Procedure Code relating to service of summons in suits be relied upon for the purpose of construing the expression "due service"? this question poses itself for finding a true solutions of the problem. Section 2 (b)defines the "controller" as any person appointed by the State Government to perform the functions of a Controller and the Governor of the State has appointed all 1st Class Sub-ordinate Judge in the Punjab to perform the functions of controller under this Act within the limits of their civil jurisdiction. Section 17 has provided that every order under section 10 or section 13 and also every order on appeal under section 15 is executable by civil Courts having jurisdiction in the area as if such order are decrees of those Courts. Section 15 (5)has conferred on the High Court a power of revision in respect of all orders passed or proceedings taken under this Act for the purpose to satisfying itself as to the legality or propriety of such orders or proceedings. These aspects are, in my opinion, relevant for considering the scope and effect of section 13 (2) (i) proviso and there is not authoritative pronouncement by this Court on this important point. It is, therefore, more appropriate that this matter be authoritatively settled by a larger Bench. Papers may accordingly be laid before my Lord the Chief Justice for constituting a larger Bench for the purpose. [the case was finally decided by a Division Bench consisting of Inder Dev Dua and mahajan, JJ. ] mahajan, J. This is a petition for revision under the East Punjab Urban Rent Restriction Act and has been referred to a larger Bench for decision by my learned brother Dua, J. by his order dated the 17th of December, 1963.

(2.) THE facts of the case and the matter in controversy which require determination are fully set out in the referring order. It is, therefore, not necessary to cover that ground. The referring order should be read as part of this order.

(3.) THE question that requires determination is one but it has two aspects. The question is whether on the facts of this case the deposit of arrears of rent made on the 15th of February, 1963, was a deposit made at the first hearing. In other words the true scope and effect of the proviso to section 13 (2) (I) of the East punjab Urban Rent Restriction Act, 1949 (East Punjab Act No. III of 1949) (herein after referred to as the Act) falls for determination. The proviso is in these terms: