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Judgment
M.M. Punchhi, J.—The Petitioner Mahant Garib Dass filed an application for ejectment of his tenants Smt. Harbans Kaur and others way back in the year 1978. The prominent ground of eviction was that alterations and new constructions had been made in the demised premises without the consent of the landlord and this had tended to impair the value and utility of the demised building. The necessary issues were struck. The Petitioner-landlord had examined two witnesses and proposed to examine more on the adjourned date. On 12-3-1981 when he was present with his evidence, none appeared for the tenant-Respondents. The Rent Controller called the case a number of times on that date but eventually finding the Respondents not putting in appearance, proceeded ex parte. On that date itself, he examined two witnesses of the Petitioner i. e. the Local Commissioner, who had inspected the spot, and the Petitioner himself. The evidence of the Petitioner was closed and arguments were heard. The following day i. e. 13-3-1981 was fixed for orders.
One of the tenants Jagjit Singh moved an application, Exhibit A.I, on 13-3-1981 before the Rent Controller, for setting aside the ex parte proceedings. It purported to have been prepared on 12-3-1981. Simultaneously, the counsel for the tenant-Respondents Mr. Vinay Vatrana moved an application, Exhibit A. W. 2/1, for setting aside the ex parte proceedings against the tenants. The cause advanced in both the applications was that on 12-3-1981 Mr. Vinay Vatrana had met with an accident and was thus unable to attend Court. Further, the case of the tenants and their counsel was that a day earlier on 11-3-1981, Jagjit Singh had specifically instructed his lawyer to put in appearance in Court as the former was likely to be absent from Court, for he had to go to Delhi for business purposes. Statedly, when he returned to Patiala in the Court premises at 3.45 P. M., he learnt from the Clerk of the lawyer that the case had proceeded ex parte since Mr. Vatrana had not attended the Court.
Mr. R L. Anand, the then Rent Controller, rejected the applications since he took the view that Order IX, Rule 7, CPC Code, was not attracted. He sought support from Arjun Singh Vs. Mohindra Kumar and Others, . He was of the opinion that the adjourned date was only for pronouncing judgment and thus it was not "the hearing" of the suit and hence Order IX, Rule 7, CPC Code, had no applicability. Thereupon, he pronounced order of eviction. There and then, the Respondents moved another application through their counsel for setting aside the ex parte decree and proceedings reiterating the same pleas as were raised in application, Exhibits A. 1 and A. W. 2/1. The measure was resisted by the Landlord-Petitioner The Rent Controller then framed the solitary issue as to whether there was sufficient cause for setting aside the order of eviction. The parties were allowed to lead evidence. The tenant-Respondents examined Jagjit Singh, one of the tenants, and Mr. Vinay Vatrana on their behalf. The landlord-Petitioner examined Tek Chand, the Clerk of Mr. Vatrana, and Garib Dass Petitioner himself to support his case. The Pent Controller on examining the matter set aside the ex parte order on payment of Rs. 250/- costs and this has given rise to the present petition.
Two points have arisen in this petition. One, which was vehemently urged in the beginning but later practically abandoned on the strength of judicial precedents, was as to whether the decision of the Court under Order IX, Rule 7, CPC Code, in refusing to set aside ex parte proceedings could operate as res judicata in application under Order IX, Rule 13, CPC Code. The order of Mr. R. L. Anand, the ex-Rent Controller, was pressed into service to contend that when ex parte proceedings had not been set aside, the tenants at best could have participated in the hearing of the final order in the case and could not ask for the reopening of the proceedings. The matter in this regard is clinched against the landlord as would be apparent from the following extract from Arjun Singh''s case (supra):
...the question next arises what is the nature of the order if it can be called an order or the nature of the adjudication which the Court makes under Order IX, Rule 7 ? In its essence it is directed to ensure the orderly conduct of the proceedings by penalising improper dilatoriness calculated merely to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit. Besides, it is obvious that the proceeding is of a very summary nature and this is evident from the fact that as contrasted with O. IX, R. 9 or O. IX, R. 13, no appeal is provided against action of the Court under O. IX R. 7, "refusing to set back the Clock". It is, therefore, manifest that the Code proceeds upon the view not imparting any finality to the determination of any issues of fact on which the Court''s action under the provision is based.
Thus, the law is clear on the subject that rejection of the application under Order IX, Rule 7, CPC Code, could not be a bar to the subsequent application under Order 9, Rule 13, CPC Code.
The matter can otherwise be viewed differently, for the strict rules of CPC are not applicable before the Rent Controller, though its general principles as instruments to help arriving at a just decision are handy to the Rent Controller for employment. The Rent Controller has bereft of them otherwise inherent jurisdiction to set aside and review an order passed ex parte, inclusive of orders obtained by fraud and those ones which the Tribunal passing them could not possibly have passed if the true facts'' had been brought to its notice. Comparing the roles of a civil Court and the Rent Controller, P. S. Pattar J. in Bikramjit Singh Paul v. Jaswant Singh (1976) 78 P.L.R. 16, quoted with approval the view earlier expressed by this Court in various decisions that no order of the Rent Controller, be it setting aside an ex parte order or refusing to set aside an ex parte order, was appealable and that only a revision lay to the High Court. Had CPC been applicable strictly, such a view was not partially possible on the strict language of Order IX, Rule 13, CPC Code, read with Order XLIII, Rule 1. So, it is evident that a revision against the impugned order is competent. And when that is so, this Court is not impeded by the strict language of Section 115, CPC Code, and rather becomes cognizant of the wide powers conferred on it u/s 15(5) of the East Punjab Rent Restriction Act. These powers, to examine the legality or propriety of the order, are comprehensive enough to cover both questions of law and fact though while examining in revision a finding of fact, it would not be prudent to upset it. Since the finding of fact can be examined in these proceedings, it is apt now to have a look at the finding arrived at on the evidence and whether there was sufficient cause for setting aside the ex parte decree.
As hinted earlier, there are two witnesses on either side. To begin with, A. W. 2 Mr. Vinay Vatrana, Advocate for the tenants, asserted that he had met with an accident on 12-3-1981 for which he was unable to attend Court or even to inform his Clerk about the accident. The Clerk, Tek Chand, appeared as R. W. 1. The Clerk, Tek Chand, undisputably stood employed by Mr. Vatrana in those days and he had gone to Court premises to look after the business of his lawyer. It is the positive case of the lawyer that he had no communication with his Clerk on the said day. On the other hand, the story made out in Exhibit A. 1, which according to Jagjit Singh tenant appearing as A. W. 1 was prepared on 12-3-1981 itself at about 3 45 P. M. by another lawyer Mr. Narula. was different. In that application, the fact is mentioned that Mr. Vatrana had met with an accident and he was thus unable to attend the Court This information in the application was said to have been made available to the tenant by the Clerk of the lawyer who was no other than Tek Chand. Mr. Vatrana further deposed that it was only in the evening at 8 P. M on 12-3-1981 that Jagjit Singh tenant had met him to tell that ex parte proceedings had been taken and further his Clerk had come to him at 9 P. M. to tell about the fate of the case, The record is silent as to how did the news of Mr. Vatrana''s accident reach the Clerk and at what time. Tek Chand Clerk appearing as R. W. 1 is silent on the point Additionally, he said that it was at the askance of the Court that he had gone to fetch Jagjit. Singh from his house where he found him and conveyed the message that he was required to come to Court. Later during cross-examination, Tek Chand, however, fumbled and said that he had not come face to face with Jagjit Singh but had conveyed the message in loud voice in front of his house and had received response by Jagjit Singh saying that he was coming to Court. This, according to him, happened at 12.30 P. M. So it is apparent, that according to Tek Chand, the message was conveyed rightly and to the right person. Yet, no one put in appearance before the Rent Controller despite somebody responding from the house that he was coming. Nowhere did anybody respond from the house that Jagjit Singh was not available in the house having gone to Delhi. The word of Jagjit Singh that he had gone to Delhi a clay earlier has been doubted by the learned Counsel for the Petitioner by contending that as deposed to by Garib Dass A. W. 1 he was seen present at his shop at Patiala at 9.30 A. M. on that date. Besides, two other tenants were also present at Patiala who could have looked after the case. According to the learned Counsel, the story of the tenants is a pure concoction and should be discarded holding that there was no sufficient cause for setting aside the ex parte order.
Learned Counsel for the Respondents, however, contends that there is no reason to disbelieve the word of Mr. Vinay Vatrana, the Advocate, and it cannot be denied that he met with an accident on the date fixed, It has further been contended that Mr. Vatrana had plausibly given his version that he could no communicate to his Clerk about his accident. It has further been maintained that the tenants had nothing to gain by getting an ex parte order against them but it was in their interest to have participated in the proceedings to get a decision on merits.
This state of evidence leads me to entertain a suspicion in the story of the tenants. But, however, grave may be the suspicion, caution impells me as a Court of revision to refrain from substituting the finding of fact by my own. Powers of superior Court sitting in revision, in a matter like the present one, are not that of a Court of appeal where in appeal, almost bypassing the order of the original Court, the finding can be substituted. In revision, however, the finding can be examined by entering into the matter and going around the parameters of the case to view whether the Court should enter the thicket and disturb the finding. As expressed earlier. I would rather in the instant case refrain from doing so and keep the impugned order preserved with the following directions:-
(1) The matter should be given top priority in disposal as over five years have elapsed since the date when the ex parte orders were passed and almost eight years since the date of the institution of the application. Therefore, it warrants that the decision in the petition may be made within three months from 16-12-1986, the day on which the parties through their counsel are directed to appear before the Rent Controller. The Petitioner shall also have the opportunity of such other evidence he thinks proper to adduce before the Respondents would be called upon to lead their evidence.
(2) The Rent Controller shall, in the event of finding any party adopting dilatory tactics, be at liberty to close the evidence of such party.
(3) The costs of the instant cause shall be costs in the main case.
This petition is decided accordingly.