M/s. Brown Multi-Wall Paper Bags Ltd. vs M/s. Ram Lal

Rakesh Kumar Garg, J.—This is tenant''s revision petition challenging the order dated 17.07.2013 of the Appellate Authority, Faridabad whereby its appeal against the order dated 06.10.2012 passed by the Rent Controller, Faridabad rejecting its application for setting aside the ex-parte order dated 13.05.2011 and ex-parte judgment dated 14.05.2011 was dismissed. Brief facts of the case, emerging out from the impugned order are that the respondent-landlord filed a petition u/s 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 against the petitioner seeking its eviction from the demised premises on the ground of non-payment of arrears of rent with effect from December 2009 to November 2010 at the rate of Rs. 20,623/- per month.

Upon notice, the petitioner appeared in Court. During the pendency of the eviction petition, provisional rent was assessed by the Rent Controller vide order dated 08.01.2011, however the same was not tendered by the petitioner and thereafter, case was adjourned for filing written statement on its behalf. Later-on, the petitioner got itself proceeded against ex-parte and vide judgment dated 14.05.2011 eviction of the petitioner was ordered from the demised premises on account of non-payment of provisionally assessed rent.

Thereafter, the petitioner filed an application for setting aside the ex-parte order dated 13.05.2011 and eviction order dated 14.05.2011. The said application was dismissed by the Rent Controller vide order dated 06.10.2012.

Against the aforesaid order, the petitioner filed an appeal before the Appellate Authority, Faridabad, but the said appeal was also dismissed vide impugned order dated 17.07.2013 of the Appellate Authority.

Learned counsel for the petitioner has vehemently argued that the pleadings as well as the documents on record have been misread, misconstrued and misapplied to the facts of the case resulting into material prejudice to the petitioner and failure of justice. According to him, counsel of the petitioner could not appear on the date fixed i.e. 13.05.2011 due to his preoccupation in another Court and thus, the Rent Controller proceeded against him ex-parte and vide judgment dated 14.05.2011 eviction petition was accepted on the ground of nonpayment of provisionally assessed rent.

Learned counsel for the petitioner has relied upon the letters dated 20.01.2011 and 22.02.2011 addressed by it to its counsel seeking details of the provisionally assessed rent so that the same could be paid. It is further case of the petitioner that they had themselves paid a part of the arrears of rent on 07.06.2011 and thus, the bonafide intention of the petitioner to pay the provisionally assessed rent stands established, and therefore, the impugned orders are liable to be set aside as the petitioner cannot be made to suffer due to the bonafide mistake of its counsel, who failed to be present in Court on 13.05.2011, as his non-appearance on that day was not intentional and was on account of the fact that he was busy in another Court and thus, the Rent Controller had acted in material haste in passing the ex-parte order dated 13.05.2011 and then ex-parte judgment of eviction dated 14.05.2011 against the petitioner.

Learned counsel for the petitioner has further argued that a party should not suffer on account of a mistake of its counsel and thus, has prayed that the impugned order of eviction of the petitioner be set aside.

The argument raised is misconceived and is liable to be rejected.

In the present case, the Rent Controller assessed the provisional rent on 08.01.2011 and the tenant was directed to pay the same on the next date of hearing i.e. 23.01.2011. Since 23.01.2011 was a Sunday, the case was adjourned to 04.02.2011 for payment of provisional rent, however, the file was taken up on 03.02.2011 and was adjourned to 17.02.2011 for the same purpose. Thus, the effective date for tendering the provisionally assessed rent was 17.02.2011 but the same was not paid and thereafter, on 13.05.2011 the petitioner did not appear in the Court and was proceeded against ex-parte and the case was adjourned to 14.05.2011 for consideration on the application filed by the respondent-landlord for passing an order of ejectment for nonpayment of provisionally assessed rent and in these circumstances, the order dated 14.05.2011 was passed accepting the eviction petition on account of non-payment of provisionally assessed rent.

It is well settled that once the provisional rent has been assessed and the same is not paid upto the stipulated date, the order of ejectment has to be passed, as nothing else remains. Reliance can be placed on a judgment of Hon''ble the Supreme Court in the case of Rakesh Wadhawan and Others Vs. Jagdamba Industrial Corporation and Others, and further a Division Bench judgment of this Court in Rajan alias Raj Kumar Vs. Rakesh Kumar,

From the aforesaid facts, it is clearly made out that it is not a case of bonafide mistake of non-appearance on 13.05.2011 on the part of learned counsel for the petitioner that an order of eviction has been passed against the petitioner on 14.05.2011. In fact, the petitioner had incurred liability of eviction on 17.02.2011 itself, i.e. the date when he was supposed to pay the provisionally assessed rent. Admittedly, the petitioner-tenant failed to pay the rent on 17.02.2011 though his counsel was present in Court.

In this view of the matter, the argument of the petitioner that a party should not suffer on account of the bonafide mistake of its counsel does not hold good.

Apart from the argument as noticed above, no argument has been raised before this Court on behalf of the petitioner to challenge the order dated 06.10.2012 of the Rent Controller whereby his application for setting aside the ex-parte order dated 13.05.2011 and ex-parte judgment dated 14.05.2011 was rejected as also against the order dated 17.07.2013 dismissing the appeals against the aforesaid orders. Thus, I find no merit in this revision petition and the same is dismissed.