Gopi Chand vs Kanhiya Lal

G.C. Mital, J.—After hearing the learned Counsel for the parties, I find no ground for interference with the order of the Court below, directing restoration of the possession of the premises to the tenant after the ex parte order of ejectment was set aside.

It is argued on behalf of the landlord that he is utimately to succeed on the admitted facts of the case, and, therefore, restoration should not be ordered. In highlighting, it is urged by Shri R. L. Sarin that the ex parte order of ejectment was set aside on 11th September, 1986 and in view of my decision in Gurdev Singh v. Surender Kumar Sharma 1982 Cur. L J 429, which was followed by J. V. Gupta J in Radha Kishan alias Radhey Sham Rai v. Smt. Anguri Devi (1986) 90 P. L. R. 649, the tenant had to deposit the arrears of rent, which was one of the grounds for ejectment, on 11th September, 1986, the day ex parte proceedings were ordered to be set aside and he could not be allowed 15 days'' time for depositing the rent. He has also placed reliance on Vinod Kumar v. Harbans Singh Azad (1977) 79 P. L. R. 144, a Full Bench judgment of this Court that similar rule was laid down therein.

Section 13(2)(i) of the Act allows 15 days'' time to the tenant to deposit the arrears of rent from the first date of hearing. On the contrary in the East Punjab Urban Rent Restriction Act, 1949, which applies to Punjab, on the very first date of hearing, the tenant has to deposit the arrears of rent, failing which he stands ejected. There is material difference between the two Acts about the tendering of arrears of rent and this has to be kept in view while determining the matter.

First adverting to my judgment in Gurdev Singh''s case (supra), it was under Haryana Act. The facts of that case are entirely dis- tinguishable because there the tenant had put in appearance on the first date of hearing and under the proviso to Section 13 of the Act, he was given 15 days'' time for making the payment. On the adjourned hearing the tenant did not appear with the result that the tender was not made and ex parte proceedings were ordered. Later on tenant filed an application for setting aside the ex-parte proceedings and the Court after being satisfied set aside the ex-parte proceedings, On those facts, it was held that the day the ex-pane proceeding were set aside, would be the date for deposit of the arrears of rent and Anr. 15 days'' time could not be allowed to the tenant for deposit. If another time had been granted then the tenant would have had 15 days time twice over and since that was not the intention of the Act, on those facts it was held that the tenant was liable to deposit the arrears on the date the order setting aside the ex-parte proceedings was passed. Similar are the facts in Radha Kishan''s case (supra).

Shri R.L. Sarin vehemently relied on para 7 of the Full Bench judgment in Vinod Kumar''s case (supra), and particularly on the following observations:-

..... At the time when the tenant approached the Rent Controller with an application for setting aside the ex-parte order, he was obviously aware of the filing of the ejectment application against him and its disposal on the earlier date, though ex-parte. If he was desirous of taking the benefit available to a tenant under the Rent Act he should have tendered the arrears etc. on the very day when the proceedings were restored... ...

A reading of the aforesaid quotation only shows that under the Punjab Act, it was held that the tenant must tender the arrears on the date the ex-parte proceedings are set aside because he was aware of the proceedings and the grounds of ejectment when he came to Court to have the ex-parte order of ejectment set aside. Similar would be the position in Haryana when the tenant comes with an application under Order 9 Rule 13 of the CPC He would be aware of the grounds of ejectment but under proviso to Section 13 of the Act he is entitled to 15 days'' time from the first date of hearing and sin e 11th September, 1986 would be the first date of hearing, he would have clear 15 days'' time to tender the arrears of rent on the basis that he is aware of the grounds of ejectment. Hence Vinod Kumar''s case (supra) does not help the landlord to hold under the Haryana Act the tenant is not to get 15 days'' time for tendering arrears of rent.

The next contention raised was that the building no longer exists and in part of the premises a tenant has been let in. In support of the argument a photograph has been produced A look on the photograph shows that the building is in the same condition with the difference that front opening has been blocked by raising a wall. The wall has to be removed while restoring the possession to the tenant. Merely raising of wall to block the entry would not mean that the building no longer exists.

As regards the third party interest, all this would be considered lis pendens. If at all any other person has been allowed to stay he will also vacate.

For the reasons recorded above, there is no merit in this petition and the same is dismissed with no order as to costs.