HAKIM RAI Vs. NAND LAL

JUDGEMENT

(1.) This petition for revision under Section 15 of the East Punjab Urban Rent Restriction Act, 1949, and Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, has been filed by the tenant-petitioner. His eviction was sought on the grounds that he had not paid the rent of the premises in dispute with effect from April 1, 1970, till the date of institution of the application, i.e. March 10. 1972, for ejectment and that the landlord required the premises for his own occupation. The petitioner contested both the grounds. The case came up for hearing before the learned Rent Controller, on June 28, 1972. On the date, according to the petitioner, when the case was called, he prayed that the case may be taken later in the day so that he might be able to engage a counsel. The Rent Controller put aside the case and allowed him to do so. After sometime, when he came to the court room, ex-parte proceedings had already been ordered in the case. On that very date, he filed an application before the Rent Controller in which after mentioning the above facts, he stated that after engaging Shri Mittra Sen Jain, Advocate the petitioner came to the Court room, his counsel enquired from the Reader the arrears of rent claimed so that he may calculate the interest and costs payable on the same, he was informed that ex-parte proceedings had been taken against the petitioner. In paragraph No. 7 of the petition, it was stated that the petitioner was ready with money amounting to Rs. 171, which comprised of Rs. 138/- as rent uptil February, 1972, Rs. 25/- as costs and Rs. 8/- as interest. The petitioner wanted to tender this amount in Court to be paid to the landlord-respondent. This application was ordered by the learned Rent Controller to come up on the next date fixed in the case. On that date, the learned counsel for the landlord-respondent made a statement that he had no objection if the ex-parte proceedings were set aside on payment of costs. The learned Rent Controller ordered that ex-parte proceedings be set aside on payment of Rs. 12/- as costs which were paid and received by the learned counsel for the landlord-respondent. On that date, the tenant-petitioner made a tender of the amount of Rs. 171/- which was accepted by the landlord-respondent without prejudice to his rights to contest the legality of the tender.

(2.) The learned Rent Controller held against the landlord-respondent on both points and dismissed the application for ejectment. Before the learned Appellate Authority the landlord-respondent did not press an issue that the decision of the Rent Controller on the point of bonafide personal necessity of the landlord was incorrect. On the question of the validity of the tender, the learned Appellate Authority agreed with the landlord-respondent and ordered the ejectment of the petitioner. It has been submitted before me on behalf of the petitioner that when ex-parte proceedings in a suit or a cause are set aside the parties are restored to status quo ate and since the Rent Controller had allowed the petitioner to go out and to engage a counsel it should be held that the hearing had not come to an end. In support of this contention, reliance has been placed on a Division Bench judgment, of this court in Jagat Ram v. Shanti Sarup, 1965 67 PunLR 45. In that case it was held that in a case in which ex-parte proceedings under section 13(2)(i) of the East Punjab Urban Rent Restriction Act are set aside, its effect would be that the first hearing when the ex-parte order was passed would not be created as hearing at all. The first hearing in that situation would be when the ex-parte order is set aside and the tenant is entitled to participate in the proceedings. I am in respectful agreement with the view enunciated in this authority. As a matter of fact, it is legally not open to the respondent to contend that the first hearing of the case had come to an end on June 28, 1972. The application for setting aside the ex-parte order was presented on behalf of the petitioner on the same day. When this petition came up for hearing on the next date of hearing respondent raised an objection regarding costs only which were awarded and duly received by him. After having received the costs, he is estopped from urging that order setting aside the ex-parte proceedings did not revive the cause from the stage when the ex-parte proceedings were ordered. It has often been said that rules and proceedings are handmaids of justice. They are not meant to trip innocent litigants into errors. When a learned trial Judge allows a party to go out of the Court room to engage a counsel with the understanding that the case would be taken up after the counsel is engaged, it cannot be said that as soon as the party or the litigant leaves the Court room the hearing of the case comes to an end. At best the hearing would be deemed to have been postponed but it continues to be the first hearing. If at that stage ex-parte proceedings are ordered and the same are set aside on proper grounds, the postponement of hearing would be deemed to continue till the date on which the order setting aside the ex-parte proceedings is actually passed. In other words, the tenant-petitioner made a tender of the rent, the interest due on the arrears and the costs during the time when the first hearing was continuing in the eyes of law. Such a tender is proper and valid and falls squarely with the proviso to clause (i) of sub-section (2) of section 13 of the Act. In my considered opinion, the learned Appellate Authority should not have taken such a stringent view of the matter.

(3.) The point regarding the bonafide personal need of the respondent cannot be gone into because the same had not been pressed before the learned Appellate Authority by the respondent.