Kishan Chand vs Hari Singh

V.S. Aggarwal, J.—The present revision petition has been filed by Kishan Chand, hereinafter described as "the petitioner" directed against the order of the learned Rent Controller. Rohtak, dated 30.5.1989 and of the learned Appellate Authority, Rohtak, dated 10.1.1990. The learned Rent Controller has passed an order of eviction against the petitioner which was upheld by the learned Appellate Authority.

The sole ground which has been assailed in the present revision petition is nonpayment of rent.

The relevant facts are that on 2.12.1998 the respondent landlords filed a petition u/s 13 of the Haryana Urban (Control of Rent and Eviction)Act, 1973(for short the Act"). It was filed with respect to the suit property detailed in the petition. The rent was stated to be Rs. 60/- per month. The first date of hearing was 9.2.1989. The petitioner had appeared in person and the matter was adjourned to 21.2.1989 for assessment and for summoning of one Harish who is stated to be the sub-tenant. On 21.2.1989 the petitioner did not appear and was proceeded ex parte. The Rent Controller assessed the rent, costs and interests, but as the petitioner was absent, no amount was tendered.

The petitioner appeared before the Rent Controller on 23.3.1989 and submitted an application for setting aside of the ex-parte order against him. This application was opposed. The learned Rent Controller dismissed the same on 6.4.1989. The petitioner tendered the rent on 6.4.1989 which was not accepted. On 30.5.1989 and order of eviction was passed against the petitioner. Needless to state that the respondents had given up the third person who was also arrayed alongwith the petitioner in the eviction application.

Against the order of eviction, the petitioner preferred an appeal. The learned Appellate Authority dismissed the same on 10.1.1990. Aggrieved by the same, present revision petition has been filed.

Learned counsel for the petitioner at the outset assailed the order passed by the learned Rent Controller as well as the learned Appellate Authority that another petition for eviction had been filed against the present petitioner. The same was dismissed on 3.4.1989. According to the learned counsel, when earlier petition for eviction was pending, yet another petition for eviction could not have been filed.

The position as such is not subject-matter of much controversy. If the earlier eviction petition is pending, indeed, on the same cause of action another petition for eviction cannot be filed. But if during the pendency of the earlier petition for eviction another cause of action arises to seek eviction, the landlord is not debarred from filing another petition for eviction independently of the existing petition which may be pending. Herein, when fresh arrears of rent are stated to have been due, second petition for eviction cannot be termed to be barred under order 2 Rule 2 of the Code because it is based on a different cause of action.

There is no dispute raised that the petitioner had absented himself and was proceeded ex parte. The application filed by the petitioner for setting aside the ex-parte proceedings against him had been dismissed. The learned counsel for the petitioner, in any case, urged that after the petitioner appeared he had tendered the rent which was not accepted and consequently when on the first date of hearing when the petitioner reappeared and had tendered the rent, the cause of action of the respondent landlords had come to an end. He strongly relied upon the decision of the Supreme Court in the case of Sham Lal (Dead) by LRs. v. Atma Nand Jain Sabha (Regd), Ludhiana (1987)91 P.L.R. 1 (SC) wherein the Supreme Court while construing the East Punjab Urban Rent Restriction Act. 1949, held that the first date of hearing means the date when the Court applies its mind to the case.

Reverting back to the facts of the case, it is obvious that the Court had applied the mind on the next date when the petitioner did not appear arid was proceeded ex-parte. That was the time when the Court noticed that the petitioner had absented himself. As already mentioned above, on the earlier date the case was adjourned to assess the interest and costs of the petition. Therefore, when the petitioner abstained that was the first date of hearing for the purpose of the provisions of Section 13 of the Act. When rent was not tendered on that date, a right accrued to the respondents to claim the eviction. '' Almost a similar controversy arose before this Court in the case of Radha Kishan alias Radhey Sham Rai of Bhiwani now resident of Delhi v. Smt. Auguri Devi and Ors. (1986 )90 P.L.R. 649. In the cited case also, the tenant had appeared with his counsel. Thereafter, on two successive dates he did not appear. An ex-parte order of eviction was passed. The tenant claimed that he has a right to tender the arrears within 15 days of the setting aside of the ex-parte order. The said claim was rejected. The present case is at a much better footing. Herein, the petitioner had only tendered the rent. Every tactic of the tenant to delay the proceedings cannot give him a fresh cause to tender the rent. There is, thus no ground to interfere in the impugned orders.

For these reasons, the revision petition being without merit must fail and is consequently dismissed.

The petitioner is granted two months tune to vacate the premises.