RAM LAL Vs. ASHOK KUMAR

JUDGEMENT

(1.) 'This is tenant's revision against whom eviction order has been passed by both the authorities below.

(2.) Ashok Kumar, landlord, sought eviction of his tenant Ram Lai, from the tenancy premises on the ground that he had not paid the arrears of rent and house-tax from 1st October, 1975 to 30th June, 1979. The rate of rent was alleged to Rs. 150/- per mensem. The application was filed on 25th July, 1979. The plea taken by the tenant was that the rate of rent was Rs. 80/- per mensem, including the house-tax. He further stated that he had paid the rent for the month of August, 1978, but no receipt was issued to him He, however, tendered arrears of rent from 1st August, 1978 to 31st August, 1979 at the rate of Rs. 80/- per month; interest and costs, as assessed by the Rent Controller. The arrears of rent were accepted by the landlord, as part payment and under protest. The landlord-applicant closed his evidence and the case was adjourned for the evidence of the tenant. On 5th November, 1982 the tenant himself appeared as RW-1 and examined Chaman Lal (RW-2) and then the case was adjourned to 11th November, 1982 for the remaining evidence of the tenant, subject to payment of Rs. 50/- as costs. On the adjourned date neither the tenant' appeared, nor were the costs paid. The learned Rent Controller struck of the defence of the tenant for non payment of the conditional costs and also closed his evidence under Order 17, Rule 3 of the Code of Civil Procedure (the Code in short) and passed the ejectment order against the tenant. In appeal, the Appellate Authority affirmed the said order of the Rent Controller. Dissatisfied with the same, the tenant has preferred this revision in this Court.

(3.) The learned counsel for the petitioner contended that if on 11th November, 1982 the tenant or his counsel could not appear, then, in that situation, orders could be passed under Order 17, Rule 2 and not under Order 17 Rule 3 of the Code. Thus, argued the learned counsel, in that eventuality he could make an application for setting aside the exparte order. In any case, argued the learned counsel, the question of striking of the defence, as such did not arise. In support of his first contention, he referred to Ramarao aad other v. Shantibai, 1977 AIR(MP) 225, Pariksht Sai and another v. Indra Bhoi, 1967 AIR(Ori) 14 M/s Hindustan Steel Ltd. v. Parkash Chand Aggarwal, 1970 AIR(Ori) 149 Seth Munna Lal v. Seth Jai Parkash, 1970 AIR(All) 251 and Orissa Supply Agency and others v. Mirza Jaliluddin, 1982 0 AIR(Ori) 212 On the other hand, the learned counsel for the respondent submitted that it was the conduct of the tenant which warranted the passing of the order under Order 17 Rule 3 of the Code and striking off the defence.