Bikramjtit Singh Paul vs Jaswant Singh

P.S. Pattar, J.—This is a revision petition filed by the tenant Bikramjit Singh Paul against the order dated 21st August, 1975 of the Rent Controller, Ludhiana, whereby he dismissed his application made under order 9 Rule 13, CPC Code, for setting aside the ex-parte order from ejectment passed against him on 22nd December, 1972 from the shop in dispute.

Briefly stated the facts of this case are that the Petitioner Bikramjit Singh Paul is a tenant under Jaswant Singh Respondent of shop No. 44 in Building No BXVII-168 situated in Bharat Nagar Chowk, Ludhiana. The landlord Jaswant Singh made an application u/s 13 of the East Punjab Kent Restriction Act against the tenant Bikramjit Singh for ejectment on the ground of non payment of rent. Notice of this application was issued to the tenant but be refused to accept service. The Court then ordered that he should be served by proclamaton made at the spot for 23rd November, 1972. He was duly served by proclamation, but inspite of this he did not appear on 23rd November, 1972 in Court and he was proceeded against exparte. The case was adjourned to 7th December, 1972 for recording ex-paite evidence of the landlord. However, Bikramjit Singh tenant appeared in the Court of the Rent Controller on 7th December, 1972 and made an application to set aside the order to proceed exparte against him. The case was adjourned to 14th December. 1972 and on that day the counsel for the landlord stated that he had no objection if the order was set aside on payment of costs. The Rent Controller accepted the application to set aside the order for exparte proceedings against the tenant on payment of Rs. 15/- as costs and he adjourned the case to 19th December, 1972 for payment of costs and to file written statement. On the latter dated i.e. 19th December, 1972, neither any written statement was filed nor any costs were paid. The Contr3oller called this case also after lunch when the counsel for the tenant appeared and he stated that he had no instructions from his client and then he left the room. Thereafter the Rent Controller passed order to proceed ex-parte against him and adjourned the case to 22nd December, 1972 for recording the exparte evidence and after recording the evidence of the landlord on that day passed the order for ejectment against him because he had not paid rent from 1st August, 1971 to 26th August, 1972 at the rate of Rs. 135/- per mensem. The application under Order 9 Rule 13, CPC Code, to set aside the ex-parte eviction order was made on 16th January, 1973, wherein it was mentioned that he was taken ill all of a sudden on 18th December, 1972 and had a severe nervous break down and heart attack and he became semi-unconscious and his condition became critical till 22nd December, 1972. During this period he remained under the treatment of a heart specialist, who recommended him complete rest till 16th January, 1973 and was not in a position to instruct or tell his family members to give necessary instructions to his counsel about his illness. It was prayed that his absence on 19th December, 1972 was not deliberate or intentional but it was due to his sudden illness and, therefore, the ex-parte, order of eviction may be set aside. This application was contested by the landlord. He denied that the tenant Bikramjit Singh fall ill as alleged in the application. According to him his absence on 19fh December, 1972 was intentional and deliberate. The application was allegad to be not within limitation. On these pleadings of the parties, the following issues were framed by the Rent Controller:

(1) Whether there are sufficient grounds for setting aside the ex-parte ejectment Order ?

(2) Whether the application is barred by limitation.

After discussing the evidence produced by the parties, the learned Rent Controller decided issued Nos. 1 and 2 against the tenant Bikramjit Singh Petitioner. As a result his application to set aside the order of eviction was dismissed with costs, which were assessed at Rs. 100/-. Feeling aggrieved, Bikramjit Singh tenant filed this revision petition in this Court.

At the outset the counsel for the Respondent argued that this revision is not competent.

Section 15(5) of the East Punjab Urban Rent Restriction Act lays down that the High Court may, at any time, on the application of any aggrieved party or on its own motion, call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit.

It was held in Vishnu Narain Gulati v. Atam Des (1953) 55 P.L.R. S.N. 3, that although the provisions of Order 9, Rule 13, CPC Code, have not been specifically made applicable to proceedings under the East Punjab Urban Rent Restriction Act, any Tribunal or Appellate Authority has inherent power to set aside and review an order obviously obtained by fraud, and one which the Tribunal passing it could not possibly have passed if the true facts had been brought to its notice. In Lakhi Ram v. Sagar Chand (1963) 63 P.L.R.691, it was held that an Appellate Authority cannot entertain an appeal against an order passed by the Rent Controller refusing to set aside an ex parte ejectment order.

In Guranditta Ram v. Murari Lal (1974) 76 P.L.R. 579, it was held as under:

Where a revision was filed u/s 15(5) of the East Punjab Urban Rent Restriction Act against an interlacutory order and an objection was taken that the Court has no jurisdiction:

Held, that we must attach some significanne to the expression " proceedings taken " used in Sub-section (5) of Section 15 in addition to the earlier alternative or " order passed ". The fact that a petition for revision has been provided not only against " any order passed ", but also against " any proceedings taken " shows that the scope of the provision is certainly not confined to a final order.

Held, further that howsoever wide the power of the High Court under Sub-section (5) of Section 15 may be, it is all the same necessary that it should be exercised sparingly and only in a fit case where the order is either not legal or not proper in the circumstances of the case.

In view of the law laid down in these decisions, the counsel for the Respondent conceded that the revision petition is competent.

The legal position, therefore, is that against an order passed by the Rent Controller refusing to set-aside an ex-parte ejectment order no appeal lies before the Appellate Authority and only a revision against such an order lies to the High Court against that order u/s 15(5) of the East Punjab Urban Rent Restriction Act.

To prove his allegations the Petitioner produced oral and documentary evidence. Bikramjit Singh Petitioner as A.W. 4 simply repeated his allegations made in the petition. According to him he was under the treatment of Dr. R. K. Sharma from 18th December, 1972 onwards and that he was not in a position to convey any message through any member of his family to his counsel. According to him he is the sole proprietor of his shop and he fell ill at his shop in the evening on 18th December, 1972. He remained under the treatment of Dr. R. K. Sharma A.W. 2 for 10/20 days and during this period he also started the treatment of Dr. A. K. Thapar. He admitted that he knew after 19th December, 1972 that the next date of hearing was 2-nd December, 1972 for the first time on 18th January, 1973.

Dr. R. K. Sharma A.W. 2 is a private practitioner at Ludhiana since 1969. He testified that he examined Bikramjit Singh on 18th December, 1972 and issued a certificate Exhibit A.1, and at that time he was suffering from acute pain in cardiac region with hypertension. He also proved the certificate Exhibit A. 2 issued by him. According to him he advisad him rest from 25th December, 1972 to 16th January, 1973 . This doctor could not say if he examined Bikramjit Singh on 18th December, 1972 in the morning or in the evening. He stated that he gave him injection on 18th December, 1972 and then on 22nd December, 1962 He did not note down the medicines prescribed by him in his register. According to the entries in his register Bikramjit Singh came to him only on two occasions i.e. on 18th December, 1972 and 22nd December, 1972, when he gave him injections. According to this witness if he goes to the residence of a patient then he charges visiting tee. He aid not state that he went to the residence of Bikramjit Singh and charged fees from him. There was no entry regarding the payment of fees in his register. The evidence of this witness does not show that the condition of Bikramjit Singh was serious on 18th December. 1972 and that he could not move. If he could go to the doctor at his shop then it is unbelivable that he could not give any instructions to his family members to go to the lawyer and give him necessary instructions regarding his illness and also to tender the arrears of rent on the first date of hearing, which was 19th December, 1972. The statement of this witness does not support the allegations made by the Petitioner in the application.

The next witness is Dr. A. K. Thapar, A.W. 3 who is also a private medical practitioner at Ludhiana, and is a consultant physician of heart and chest diseases. He deposed that he examined Bikramjit Singh Petitioner on 16th January, 1973 and he issued him the certificate Exhibit A 3. According to him, at that time he was suffering from typhoid and also hypertension. This doctor does not maintain any records regarding the names of the patients, their illness, and the medicines prescribed by him This certificate Exhibit A 3, is not signed by Bikramjit Singh. He examined the Petitioner on 16th January, 1973 i,e long after date of hearing, which was 19th December, 1972, and, therefore, his evidence is not very much material.

As against this, the Respondent denied the allegations of the Petitioner. He stated as R.W. 4 that the Petitioner never fell sick, that he had no money to pay the arrears of rent and, therefore, he was delaying the payment of the arrears of rent and the plea of illness is false. According to him the Petitioner had been attending his shop regularly. Similar are the staements of his witnesses, Mehar Singh R.W. 1, Ajmer Singh R,W. 2 and Charan Singh R.W. 3. The onus to prove the allegation made in the petition to set aside the ex-parte ejectment order was on the Petitioner Bikramjit Singh, but he failed to prove the same. The learned Rent Controller after discussing the oral and documentary evidence of the parties rightly came to the conclusion that he failed to prove the allegations made in this petition. This decision is correct and the same is affirmed.

No other point was urged. There is no substance in this revision petition and the same is dismissed with costs.

At the request of the Petitioner''s counsel, it is ordered that Bikramjit Singh tenant-Petitioner shall vacate the shop in dispute within one month from today, provided he pays all the arrears of rent due from him upto date within ten days from today.