Manohar Lal vs Amarnath

S.S. Sudhalkar, J.—Learned counsel for the respondent has produced a copy of the order dated 31.7.1998, passed by the Rent Controller. The same is taken on record.

By order dated 31.7.1998, the learned Rent Controller rejected the two applications of the present petitioner, who is a tenant-respondent in the proceedings pending between the parties. In the applications, the petitioner had requested the Rent Controller to permit him to file written statement to the eviction petition and also prayed for getting the rent petition dismissed and requested for staying the proceedings in view of the decision of this Court in another case. The Rent Controller rejected the applications and imposed costs. It will be proper to quote the operative part of the judgment.

"Both the applications dated 11.1.1995 and 22.11.1996 are being dismissed with costs of Rs. 1,000/- on the respondent/tenant Manohar Lal to be paid to the landlord latest by the next date of hearing."

Thereafter on 15.4.1999 the case was listed before the Rent Controller, and on that date the following order was passed.

"Case filed produced before me for proper order. Now to come up on 17.4.1999 for payment of previous costs." PP

On 17.4.1999, the impugned order was passed, which is annexure P-1, to this petition, which is as under:

"Previous costs not paid. Defence of the defendant is struck off u/s 35-B, C.P.C. Now to come up on 15.5.1999 for consideration."

Learned counsel for the petitioner argued that because of the non-payment of the costs as ordered by the Rent Controller, the defence could not have been struck off u/s 35-B of the CPC (herein after referred to as ''Code''). Section 35-B(1) reads as under:-

"(35B costs for causing delay.- (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit -

(a) fails to take the step which he was required by or under this Code to take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground.

the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be condition precedent to the further prosecution of-

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs.

(b) the defence by the defendant, where the defendant was ordered to pay such costs.

Learned counsel for the petitioner has relied on the case of Simpy Films No. 12, Jullundur Vs. Rajdhani Films (P) Ltd. and Others, . It has been held therein that the provision u/s 35-B of the Code is penal provision and, therefore, it has to be construed very strictly. In that case Rs. 300/- were awarded as costs as the plaintiff was allowed to produce two documents. In other words, the production of the said two documents, was conditional on payment of Rs. 300/- as costs and, therefore, it was under no circumstances, it could be said that the plaintiff failed to take any step which he was required to take on the date or he obtained any adjournment for taking any such step or for producing evidence. It was further held that the plaintiff could not deprived for prosecuting the case u/s 35-B of the Code.

Another judgment cited by the learned counsel for the petitioner is the case of Raj Kumar v. Girdhari Lal, (1987)92 P.L.R. 606. It has been held there in that the costs were awarded for not filing reply to the application and, therefore, for non-payment of the costs, only the application could be decided, but the suit as such could not be dismissed on that account.

Learned counsel for the petitioner argued that his application has already been dismissed and the costs which were imposed were not condition precedent for the proceeding with the suit and on the contrary according to him the only remedy open for recovering the costs was u/s 36 of the Code.

Learned counsel for the respondent on challenging the argument of the counsel for the petitioner has cited the case of Prof. Bhupinder Singh, Advocate Vs. Sohinder Singh, . Relying on this judgment he has stated that the revision application is not maintainable. It has been held therein that the provision of Order 2 Rule 2 of the Code is not applicable in the rent petition and the Rent Controller is a personadesigneta and he acts as a quasi judicial Tribunal to decide the matters covered by the Rent Act and, therefore, has not the trappings of a Civil Court-Civil Procedure Code. However, this authority will not help the respondent because u/s 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as ''the Act'') there is a provision for revision to the High Court. The relevant provision of the Act is as under:

(6)(The High Court) as revisional authority, may, at any time, on its own motion or on the application of any aggrieved party, made within a period of ninety days, call for and examine the record relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as, to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit. In computing the period of ninety days the time taken to obtain a certified copy of the order shall be excluded."

Therefore, when there is a specific provision; for revision made under the Rent Act, the submission that the revision petition is not maintainable is not accepted.

In view of the above reasons, I find that the impugned order by which the defence of the petitioner was struck of cannot be upheld. As a result, revision is allowed and the impugned order striking of the defence of the petitioner u/s 35-B of the Code is quashed.

A copy of the order be given dasti to the counsel for the respondent on payment.