Haj Mohamed vs Asma Ummal

S. Jagadeesan, J.—The petitioner is the tenant under the respondent. The respondent filed R.C.O.P. No. 10 of 1994 on the file of the Rent

Controller, Karaikkal to evict the petitioner on the ground of wilful default stating that the petitioner was in arrears from July, 1989. This was

opposed by the petitioner by filing counter. However, the Rent Controller had allowed the R.C.O.P, by his order dated 2.2.1995. The petitioner

preferred an appeal in R.C.A. No. 2 of 1996 which was also dismissed by the Additional District Judge, Pondicherry at Karaikkal by his order

dated 21.10.1996, As against this the present revision has been filed. Mr. Yamunan, learned counsel for the petitioner contended that after the

evidence of P.W.1 was recorded the case was adjourned twice for the respondent''s evidence. But since the counsel was not free, third time also

adjournment was sought for. The Rent Controller refused to grant adjournment and the Rent Controller proceeded to decide the matter on merits

on the basis of the averments in the counter and certain answers given by the petitioner before the Court. Since the petitioner has not been given

any opportunity to put forth his case the orders of the Courts below are liable to be set aside.

On the contrary, Mr. R. Gandhi, learned senior counsel for the respondent contended that admittedly the petitioner was in arrears which was

clear from the lump sum payment made by the petitioner. Further, when the petitioner was enquired by the Rent Controller, he has admitted there

was arrears and the Rent Controller has proceeded on the basis of the admission. In spite of the fact that the matter has been adjourned twice the

petitioner has failed to get into the box to give evidence or to examine any one on his behalf and as such the Rent Controller is perfectly right in

proceeding with the case on merits.

I have carefully considered the contentions of both the counsel. The Rent Controller has observed in his order as follows:

On three hearings this Court posted for respondent''s side evidence. The respondent was present and the respondent''s counsel has not appeared

before this Court. Therefore, this Court closed the respondent''s side.

Having made the above observation, the Rent Controller proceeded to decide the matter on merits after hearing the arguments of respondent''s

counsel and after perusing the counter affidavit filed by the petitioner herein. The Rent Controller has taken into consideration the statement made

by the petitioner in his counter affidavit that he did not pay the rents from July, 1994 to September, 1994 as the respondent did not issue the

receipts for the payment of rent, and hence, failure to pay the rent cannot be considered to be a default, much less wilful default. From this

statement it is clear that the petitioner-tenant had refused to pay rent for the period from July, 1994 to September, 1994 since the landlord refused

to pass on a receipt for the payment of the rent. If really the failure to pay the rent by the petitioner is only due to the conduct of the respondent by

refusing to issue the receipt for payment of rent, then the question for consideration is, whether it will amount to wilful default. Merely on the basis

of this statement the Rent Controller has come to the conclusion that the tenant has committed wilful default and ordered eviction.

On appeal also the Appellate Authority has proceeded on the basis that from the order dated 16.2.1996 in I.... No. 70 of 1995, it could be

culled out that the petitioner was in arrears because the order reads as follows-

Learned counsel for the petitioner had submitted to Court question, that he is in admitted arrears of rent of only Rs. 4,800/-.

Calculating the amount of arrears, the Appellate Authority came to the conclusion that the tenant was in arrears of rent from January, 1994 to

December, 1995 and since the arrears have been admitted, there is no need to interfere with the order of eviction. Equally the appellate authority

proceeded further to consider the evidence of P.W.1 and the evidence available on record and further observed that since the tenant has admitted

the arrears there is no need to call for any finding from the trial court after examination of the tenant. On that basis the order of eviction was

confirmed.

I am unable to agree with the view taken by the authorities below. First of all the tenant/petitioner was present in Court and his counsel was not

present. Perhaps the matter had been adjourned at the instance of the counsel. If any adjournment is sought for at the instance of the counsel,

naturally the Court has to oblige. If the counsel persistently absents himself, without sufficient cause, the Court is entitled to proceed on merits. But,

however, when the petitioner was present in Court at least the Court should have examined him and recorded his testimony to what it is worth.

Without doing so, the Court has proceeded only on the basis of the averment made in the counter and some observation made in the order in I.A.

The rules framed under Sec.33 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 known as Pondicherry Buildings (Lease and

Rent Control) Rules, 1980 prescribes the procedure to be followed by the Rent Controller as well as the Appellate Authority in disposing of the

applications. Rule 13(2) is as follows:

The Controller or the authorised officer or an officer authorised by him, as the case may be, shall give to the parties a reasonable opportunity to

state their case. He shall also record a brief note of the evidence of the parties and of the witnesses, if any, examined on either side, and upon the

evidence so recorded and after consideration of any documentary evidence which may be produced by the parties, pass orders on the

application.

From the above extracted rule it is clear that the Rent Controller has to record a brief note of the evidence of the parties and of the witnesses, if

any, examined on either side. There is no dispute that the procedure in the Rent Control proceedings is only summary in nature, but however, when

the tenant was present, the Court cannot proceed ex parte without asking him as to whether he is willing to get into the box to depose. If the Court

had asked about his willingness and if the tenant has refused to get into the box, then the Court has to proceed with the available materials on

record and then decide the question. Without ascertaining the willingness of the tenant and also without ascertaining the convenience of the counsel

the Rent Controller ought not to have proceeded with the trial. The admissions would have been taken into account after proper opportunity has

been given to the tenant to put forth his case especially when he was represented by the counsel.

Of Course, Mr. R. Gandhi, learned senior counsel has referred to two judgments in C. Natarajan Vs. S. Anandammal, and Alagumani v. K.

Shanmugham and 2 others (1994-2-L.W.391) and contended that even during the pendency of the proceedings the tenant has not paid the rents

regularly and he has deposited the amount in Court and the landlord was permitted to withdraw a sum of Rs. 9,000/- at the time of disposal of the

appeal and hence there cannot be any dispute that the tenant is in arrears of rent and the default is nothing but wilful one. When the landlord has

been permitted to withdraw the amount from the Court deposit, it is clear that the tenant had deposited the amount in Court. When the rents have

been deposited in Court during the pendency of the proceedings, how far the disputed arrears can be considered as wilful default, is to be

considered. However, all these matters can be elaborately canvassed before the Rent Controller by giving the parties an opportunity to put forth

their case. For the reasons stated above, I am of the view that the orders of the Courts below cannot be sustained. Accordingly, C.R.P. is allowed

and the R.C.O.P. No. 10 of 1994 on the file of the Rent Controller, Karaikkal is remanded for fresh disposal. The Rent Controller, Karaikkal is

directed to dispose of the R.C.O.P, within two months from the date of receipt of the records as well as the order. No costs. Consequently,

C.M.P. No. 16397/96 is dismissed.