Firm M.K. Textile Mills vs Gian Singh and others

J.V. Gupta, J.—This is tenants'' petition against whom eviction order has been passed by both the authorities below.

The landlord Gian Singh sought the ejectment of his tenants to whom the premises were let out on a monthly rent of Rs. 325/- vide rent note dated 21st June, 1976 though the tenancy started with effect from 1st April, 1976. The ejectment was sought on the ground of nan-payment of rent and also on the ground of subletting as well as that the tenants have materially diminished the value and utility of the demised premises A ground was also taken that the tenants have ceased to occupy the building for a continued period of more than four months without any reasonable cause.

The tenants tendered arrears of rent amounting to Rs. 1625/- from 1st December, 1978 to 30th April, 1979 on 16th August, 1979, which tender was accepted under protest as the same was alleged to be not legal and valid one. On 16th August, 1979 the case was adjourned to 23rd August, 1979 for filing the written statement. On 23rd August, 1979, written statement was not filed. An application was filed on behalf of the tenants that the landlord be directed to produce the original rent note Consequently, the case was adjourned to 31st August, 1979 for producing the original rent note. On 31st August, 1979, rent note was produced and the case was adjourned for filing the written statement on 6th September, 1979. On that date, no written statement was filed and adjournment was granted for 12th September, 1979, on payment of Rs. 15/- as costs. On 12th September, 1979, the Rent Controller passed the following order:

Present:Shri N. K. Chawla, counsel for the applicant.

Shri Yash Paul Seth, for Respondent No. 1-2.

Respondent Nos. 3 to 11 ex parte.

Written statement not filed nor costs paid. Counsel for the Respondent has prayed for adjournment stating that his client is out of station, which is opposed by the counsel for the applicant. Request made by the counsel for the Respondent for adjournment to anable him to file W/S is declined due to the fact that the Respondent has failed to file W/S despite availing of three opportunities. So much so costs awarded on 6.9.79 which was a condition precedent for defence, have not been paid. Acting under the provisions of O-8 R-10, C. P. C, the defence is struck off and ejectment order is passed vide my separate detailed judgment of even date. File be consigned.

Announced.

Sd/- (U. S. Momi) Rent Controller, Amritsar. 12.9.1979.

On that very day at 3.30 p.m written statement dated 12th September, 1979 was filed before the Rent Controller on which the following endorsement was made:

Present:- Shri Yash Paul Seth, Advocate.

It is 3.30 P.M The case has already been finally disposed of under Order 8 R 10 C P.C. No further action needed File.

Sd/- (U. S Moni) Rent Controller, Amritsar. 12.9.1979.

In view of that order, the learned Rent Controller passed the eviction order acting under Order 8 Rule 10, CPC after striking off the defence. In appeal, the learned appellate Authority maintained this order of eviction. Dissatisfied with the same, the tenants have filed this petition in this Court Along with the petition, the Petitioners also filed an affidavit of Mr. Yash Paul Seth, Advocate, Amritsar, which is to the following effect:

That on 12.9.79 in fact the case was taken up at about 11 A.M. in the absence of the landlord Respondent and his counsel. In fact on the request of the counsel for the tenant Petitioner the learned Rent Controller agreed to take up the case at 3.30 P.M. after lunch hour The tenant-Petitioner No 2 had been out of station during pre-lunch period. He reached the Court at 1 30 P.M. on 12.9.79 when he was told that the case would be taken up at 3.30 P.M. Thereafter the tenant- Petitioner No. 2 signed the written statement and went to the Court in order to file the same. The Rent Controller placed written statement on the record at 3.30 P.M.

Sd/- (Yash Paul Seth) Advocate.

Chandigarh. Dt. 1.5.1984.

Deponent.

The Learned Counsel for the Petitioners submitted that there was no occasion for the Rent Controller to invoke the provisions of Section 35-B of the CPC as the costs were never demanded. Rather, on the other hand, from the affidavit of the counsel Mr. Yash Paul Seth, Advocate, (reproduced above), it is evident that case was to be taken up at 3.30 P.M. after lunch hours. According to the Learned Counsel, the very fact that the written statement was filed in Court on that very day at 3.30 P.M. proves the averments made by Mr. Yash Paul Seth, Advocate, in his affidavit. It was also contended that the provisions of Order 8 Rule 10, CPC could not be invoked in proceedings under the East Punjab Urban Rent Restriction Act, 1949. u/s 16 of the said Act, only certain provisions of the Code are applicable and not other provisions. In support of this contention, reference was also made to Kaushalya Devi and Others Vs. Shri K.L. Bansal, and Mansa Devi and Ors. v. MIS Sun Rise Ice Factory (1983) 85 P. L R. 578,

On the other hand, the Learned Counsel for the Respondent submitted that since the tenants failed to file the written statement and even did not pay the costs, the Rent Controller rightly invoked the provisions of Section 35-B, CPC and rightly passed the eviction order. In support of his contention, he referred to L. D. Arora v. Smt. Sushila Devi (1981) 83 P. L. R.715.

I have heard the Learned Counsel for the parties and have also gone through the interim orders passed by the Rent Controller. Mr. Yash Paul Seth, counsel for the tenants, has filed affidavit in this Court which has been reproduced above. No counter affidavit has been filed on behalf of the landlord It is most unfortunate that this affidavit was not filed before the appellate authority with whom the appeal remained pending from June, 1982 to March, 1984 Thus, the Petitioners are guilty of delaying these proceedings by not fling this affidavit earlier and have, thus, delayed the proceedings by their own conduct for which they are liable to be burdened with heavy costs. If this affidavit would have been filed before the appellate authority, the matter could be decided by the appellate authority itself. However, in view of the said affidavit and the fact that the written statement dated 12th September, 1979, is already on the record, the eviction orders are liable to be set aside.

Consequently, the petition succeeds and the eviction orders are set aside. However, the tenants are burdened with Rs. 3000/- as costs for not filing the said affidavit earlier before the appellate authority and are, thus, guilty for delaying the ejectment proceedings. The parties have been directed to appear before the Rent Controller, Amritsar, on 10th September, 1985, on which date the said costs of Rs. 3000/- will be paid failing which the revision petition will stand dismissed. It is further directed that, in ease the costs are paid, the Rent Controller will proceed with the ejectment application in accordance with law on the basis of the written statement already filed. It is further directed that the parties will produce the evidence at their own responsibility though they will be entitled to take Dasti summons, if necessary, as contemplated under Order 16 Rule 7A, CPC Code. In ease the tenants have not paid the arrears of rent after the first date of hearing, they will deposit the same up-to-date on the date to be fixed by the Rent Controller which will be paid with interest, and in cast the said amount is not paid on the date fixed by the Rent Controller, this petition will also stand dismissed.