L.D. Arora vs Sushila Devi and Another

States that the Appellate Authority was in error in coming to the conclusion that no appeal lay before it. Assuming that an appeal lies, the real question to be decided would be whether the order of the Rent Controller can be said to be erroneous.

The landlord sought ejectment of the petitioner on the ground of change of user of the premises from residential to non-residential as also on the ground of non-payment or rent. Since tender was made on the first date of hearing, the ground of non-payment probably disappeared. October 16, 1980 was fixed as the date for the filing of the written statement but the tenant did not file the written statement on that date and sought for an adjournment which was granted and the tenant was directed to file written statement by 30th Oct., 1980 on payment of Rs. 15 as costs. Soon after this order was passed, an application was filed by the tenant for directing the landlord to file the rent-note in Court. On Oct. 26, 1980, the tenant filed another application for review of the order dated 16th Oct., 1980 on the ground that the tenant should be asked to file written statement only after the landlord has filed the rent-note in court. A notice on the aforesaid application was given for 30th Oct., 1980 on that date, the court dismissed the application for review and since the tenant did not pay the costs of Rs.15 nor filed the written statement on that date, the defence of the tenant was struck off by the impugned order dated 21st Nov., 1980, in view of S. 35B of the CPC (hereinafter called the Code. It may be noted that the tenant had filed the written statement on 5th Nov., 1980 although without the permission of the Rent Controller.

Under S. 35B of the Code, the order of the kind passed by the Rent Controller is clearly permissible as held by a Full Bench of this Court in Anand Parkash Vs. Bharat Bhushan Rai and Another, ). The discretion under S. 35B of the Code has been exercised by the Rent Controller and it has not been shown how the discretion exercised is palpably erroneous in law calling for interference either in appeal or revision by this Court. Faced with this situation, Mr. Sarin urges that S. 35B of the Code is not applicable to the proceedings before the Rent Controller because u/s 16 of the East Punjab Urban Rent Restriction Act, 1949, as enforced in Chandigarh, the Rent Controller has the same powers of summoning and enforcing the attendance of the witnesses and compelling the production of witness as are vested under the Code and as such Section 35B of the Code is not applicable in proceedings before the Rent Controller. Mr. Sarin is right, Section 35B is not applicable as it is but the Rent Controller is a persona designata and is entitled to follow any procedure which in law can be termed to be either reasonably correct or can promote justice. S. 35B is contained in Code which regulates the procedure of civil courts and it is open to the Rent Controller to follow a procedure laid down in any of the statutes for his guidance. Under the circumstances, even if he has followed something written in Section 35B of the Coded to regulate his procedure, it cannot be held that he has exceeded his jurisdiction.

Coming to the merits of the case, it is the tenant who knows for what purpose he took the premises on lease because he has been in possession of the premises from the inception of the tenancy. In the written statement he had to plead his case as to whether he took the premises for residential purpose or non-residential purposes or both and the question of the rent-note would have been a matter of evidence. The tenant had the copy of the ejectment petition on the first date of hearing when the rent was tendered by him which was long before 16th Oct., 1980 and he was fully aware of the grounds of ejectment. Therefore, when 16th of Oct., 1980 was fixed for filing of the written statement, the written statement should have been filed on that date. The tenant sought adjournment which was granted by the Rent Controller on payment of costs and instead of paying costs and filing the written statement on the 30th Oct., 1980, which was the adjourned date of hearing for the purpose, the tenant filed two applications, one on the date seeking adjournment for filing of the written statement and another in between, which clearly shows that the endeavour was to prolong the proceedings instead of helping the Court in further progress of the case in accordance with law. Such an attitude of the tenant can by no means be countenanced. Hence no ground for interference on merits either is made out. Dismissed in limine.

Petition dismissed.