B.D. Sharma vs Mrs. Leela Pall

Ashok Bhan, J.—This is a tenant''s revision petition against the order dated 28 9-19 8, whereby the application filed by him for setting aside the ex-parte order dated 8-9-1986, was dismissed by the Rent Controller, Hoshiarpur.

Mrs. Leela Pall landlady respondent filed an application for ejectment against the tenant-petitioner u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act). The tenant petitioner was served for appearance in Court for 8-9 198ft on which date he failed to appear in Court despite service and as such was proceeded against ex parte and the case was adjourned to 26.9.1986 for ex-parte evidence of landlady.

Tenant-petitioner moved an application praying for setting aside the ex-parte proceedings on 22 9 1986 on the plea that he fell ill on 6-9-1986 and. therefore, could not attend the Court on 8-9-1986, his absence was not intentional and in fact it was due to unavoidable circumstances beyond his control. The landlady opposed the application for setting aside the ex-parte proceedings mainly on the ground that illness of tenant-petitioner was a made up story and since the tenant-petitioner had failed to pay arrears of rent on the first date of hearing i.e. 8-9-1986, he deserved to be evicted and that no ground was made out for setting aside the ex parte proceedings.

On the pleading of the parties, the following issues were framed :-

Whether there are sufficient grounds for setting aside the ex-parte proceedings ? OPA

Relief.

The Rent Controller held that the tenant-petitioner had failed to allege and prove that he was possessed of sufficient money to make the tender on the first date of hearing i e. 8-9-1986, when he was proceeded against ex-parte and there were no sufficient grounds or good cause to set aside the ex parte proceedings against the tenant-petitioner and thus the Rent Controller dismissed the application of the petitioner on 28-9-1988. Aggrieved against this order, the petitioner has come up before this Court in revision.

Learned counsel for the petitioner has urged that subsequent to the present ejectment application, landlady filed another ejectment application, in which all the arrears of rent have been tendered as in the subsequent application, the arrear for the period in dispute in the present application were also included; secondly, he has urged that in Sham Lal (Dead) by Lrs. Vs. Atme Nand Jain Sabha (Regd.), Dal Bazar, it has been held by the Supreme Court that "first hearing of the application" as used in proviso (i) to subsection (2) of Section 3 of the Act does not mean the day fixed for return of the summons or the returnable day but the date when the Court applies its mind to the case, which ordinarily would be at the time when either the issues are determined or evidence taken So, in the present case, the date of hearing would not be 8-9-1986 i e the date fixed for return of summons. The next date of hearing for taking evidence was 29-9 1986 which would be taken to be the first date of hearing and on that date petitioner was ready and willing to tender the rent. I agree with the Contention raised by the learned counsel for the petitioner. At the first instance, ail the arrears of rent have been tendered in the Court during pendency of subsequent application Secondly, the first date of bearing would not be 8-9-1986 but 26 9-1986 on which date the tenant petitioner was ready and willing to tender all the arrears of rent. In other words, tenant petitioner was in possession of sufficient means to pay all the arrears of rent on the first date of bearing i e. 26-9-1986.

For the reasons recorded above, this revision petition is accepted and the impugned order dated 26-9-1988, is set aside, No costs

The parties through their counsel ate directed to appear before Rent Controller, Hoshiarpar. on 22-10-1990.