M/s Uttam Singh Inderjit Singh vs Ram Gopal Kalia

Gokal Chand Mittal, J.—After hearing the Learned Counsel for the parties at length and on perusal of the record of the executing Court as also of the Rent Controller, who passed ex-parte ejectment order against the petitioner, I am of the opinion that it is a fit case in which suo motu power of revision, deserves to be exercised in the ends of justice. Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act) empowers to this Court to revise an order of ejectment passed under the Act, after examining the records. When the case was initially heard at motion hearing on 11th of March, 1981, even at that time it appeared to me that the order of ejectment passed against the petitioner might be erroneous and that is why not only the records of the proceedings for setting aside the ex-parte ejectment order were sent for but the record of the Rent Controller, no passed the ejectment order was also sent for. On 23rd of April, 1, both the parties were represented before me and the case was (sic) to await the records. Finally, the case was taken up on 23rd July, 1981, and after the parties were heard at length, I decided to notice to the respondent. Accordingly, Shri J.S. Wasu, appeared the respondent, accepted the same and stated that he was ready with all arguments to justify the maintenance of the ejectment order dated 1st of April, 1975. I was prepared to grant adjournment to counsel for both the parties to assist me in this matter but counsel for both the parties frankly stated at the bar that they were fully prepared with the case and did not want any adjournment and requested that the case be heard and decided. Accordingly, I proceeded to hear the counsel for the parties at full length both in the revision which has been filed against the order of the Rent Controller refusing to set aside the ex-parte ejectment order, as also in the suo motu revision against the order of ejectment and after hearing them fully reserved the judgment

After the judgment was kept reserved, on 3rd August, 1981, C.M. No. 1763-C-II of 1981 was filed by Raj Kumar Kapur under Order 1, Rule 10 of the CPC (hereinafter called the Code), for impleading him as a respondent and for giving him an opportunity to argue the case as he was the newly inducted tenant on a part of the premises in dispute and had come in possession of that part on 7th March, 1981, during the pendency or the revision petition in this Court under the same landlord. On 4th of August, 1981, notice of the application was issued to the counsel for the original tenant for 6th of August, 1981, and the counsel for the applicant was told to be ready with the arguments in the main civil revision as also in the suo motu revision, and it was ordered that the same be posted for rehearing for 6th August, 1981. That is how the matter was fixed for to day

After hearing the parties, Civil Misc. application, filed by Raj Kumar Kapur, is allowed in the interest of justice, and he is ordered to be impleaded as a respondent in the revision petition. The counsel for Raj Kumar Kapoor was prepared with the arguments under orders of this Court dated 4th of August, 1981 and after hearing him as well, I am of the view that the revision as also the suo motu revision deserve to be allowed.

Ram Gopal Kalia filed an application for ejectment under S. 13 of the Act against M/s. Uttam Singh Inderjit Singh on 5th of November. 1974 in the Court of Rent Controller, Amritsar, from a shop solely on the ground that the tenant had neither paid nor tendered the rent due from the tenant from 7th March, 1974 to 6th of November, 1974, and the rent was stated to be Rs. 225/- per month vide rent note dated 30th of August, 1971, under which tenancy started on 7th of August, 1971. On the first date of hearing, which was on 19th of November, 1974 the tenant firm paid Rs. 1,575/- as seven months'' rent from 1st of April, 1974 to 31st of October, 1974, besides paying Rs. 3/- as costs and Rs. 25/- as interest The tender was accepted by the landlord under protest by saying that the same was short The next date of hearing was 3rd of December, 1974, when written statement was filed and issue about the validity of the tender was framed. In the written statement it was pleaded that it was wrong that the rent was due for the month of March, 1974 as the same had been paid by cheque No. 481478 on Punjab and Sindh Bank Limited, Amritsar, for a sum of Rs. 675/-, which related to the rent for the months of January, February and March, 1974, the receipt of which was in possession of the tenant and the arrear of rent was of 7 months was tendered in Court and therefore, there was no ground of ejectment subsisting against him. (sic) case was adjourned to 16th of January, 1975 for tenant''s evidence. (sic) 16th of January 1975, the tenant was not present and, therefore, exparte proceedings were ordered and statement of one A.W. was recorded who was Ram Gopal landlord himself and his evidence was closed. The case was adjourned to 17th of January, 1975. On 17th of January, 1975 both the sides were present and the tenant filed an application under order 9 Rule 7 of the Code for setting aside the ex-parte proceedings dated 16th of January, 1975. The case was adjourned to 22nd of January, 1975 for reply of the landlord. On 22nd of January, 1975 in the presence of both the sides, with the consent of the counsel for the landlord, the ex-parte proceedings ordered on 16th of January, 1975 were set aside on payment of cost and the case was adjourned to 27th of February, 1975 for evidence of the tenant On 27th of February, 1975 the earlier presiding Officer had been transferred and the new Presiding Officer had not taken over and, therefore, the case was adjourned to 5th of March, 1975. Even on 5th of March, 1975 both the sides were present and the new Presiding Officer had not taken over and the case was adjourned to 20th of March, 1975. On 20th of March, 1975, both the sides were present and the case fixed for 29th March, 1975 for evidence of the tenant On 29th of Marsh, 1975 only the counsel for the the landlord was present and the tenant did not appear. It may be pointed out that the tenant had not engaged any counsel. Since the tenant did not appear, ex-parte proceedings were ordered. The Rent Controller further observed that the evidence of the landlord had already been closed and, therefore, the same day proceeded to hear arguments and fixed the case for orders for 31st of March 1975. On 31st of March, 1975 the counsel for the landlord appeared and since the Presiding Officer was on leave the case was adjourned to 1st of April, 1975, when the ejectment order was passed by giving a finding that the tender was short. Even on 1st of April, 1975, the tenant had not appeared and only the counsel for the landlord was present.

On 3rd of September, 1975, the tenant filed an application before the Rent Controller, Amritsar, for setting aside the ex-parte order dated 1st of April, 1975 and stated therein that he had paid rent upto March, 1974 by Cheque No. 48178 of Punjab and Sind Bank Limited for a sum of Rs. 675/- about which he had a receipt dated 3rd of July, 1974 duly executed by the landlord and that he appeared on 19th November, 1974, before the Rent Controller and paid rent from April to October, 1974 along with interest and costs and he put in his written statement on 3rd of December, 1974 and thereafter the case was adjourned from time to time for want of Presiding Officer. On 20th of March, 1975 he is alleged to have come to Court with his bahi in which the landlord had written a receipt in his own handwriting that he had received rent from him for the period commencing from January to March, 1974. The receipt was shown to the landlord in Court and the landlord stated that he will go to the city and look into his pass book and then he accompanied the tenant to the city and after having a look at his record stated that rent had been correctly paid and, therefore, he (tenant) need not go to Court and relying on his words the tenant did not go to the court thereafter. Then it is pleaded that on 7th of June, 1975, the landlord received from the tenant rent for the period ending with January, 1975 by which time the order of ejectment had been passed and kept the same as a secret, and then he came to open his shop on 28th of August, 1975, he found that the lock had been changed. He went to the landlord to make enquiry but the landlord did not tell anything. On 30th of August, 1975 the tenant is alleged to have come to know of the ejectment order and on inspection of the record came to know of the fraud having been played on him by the landlord and thus filed the application. Notice of the application was given to the landlord and on the contest of the parties, the following issues were framed :--

Is the ex-parte order of eviction dated April 1, 1975 liable to be set aside? O.P.A.

Is the application within limitation? O.P.A.

Relief.

The issue of limitation was decided in favour of the tenant. On issue No. 1 both the parties led evidence. Uttam Singh tenant appeared as A.W. 9, besides producing 8 more witnesses, including the Clerk of Punjab and Sind Bank, Hall Bazar, Amritsar, who produced on record the summoned cheque issued by the tenant in favour of the landlord. Uttam Singh tenant while appearing as A.W. 9, stated that ejectment application was filed by the landlord against his firm on the ground of nonpayment of rent from March 7, 1974 to November 6, 1974 at the rate of Rs. 225/- per mensem. According to him, he was in arrears of rent with effect from April 1, 1974 to October 31, 1974 at that time and not from March 7, 1974 to November 6, 1974. He stated that a sum of Rs. 575/- was paid from January to March, 1974 by means of cheque No. 481478 dated July 3, 1974 of the Punjab and Sind Bank Ltd., Hall Bazar, Amritsar, for which the landlord appended a receipt in his own hand under his signatures in his Dast Khata Bahi which he had brought with him, that the said receipt was executed by the landlord in his presence and a copy of the same was exhibited as A.W. 9/1 and a photostat copy of the same was exhibited as A.W. 9/IA; that the cheque was honoured by the bank; that a sum of Rs. 1575/- was tendered as rent from 1st April, 1974 to 31st October, 1974 besides interest and costs that he came to the Court on 20th March, 1975 and had brought his Dast Khata Bhai and the matter was discussed with the landlord after the said Bhai was shown to him in Court and the landlord asked for time to verify the fast of receipt of cheque and its encashment from the pass book. Both of them, according to him, went to the house of Ram Gopal for this purpose; he verified the factum of due payment of the amount covered by Exhibit A.W. 9/1 and assured that he had received full payment and that he would withdraw the petition and told him that he need not go to the Court; that he relied upon the word of the landlord and noted accordingly; that in June, 1975 the landlord again received the rent from him amounting to Rs. 575/- in cash for the months of November and December, 1974 and January, 1975 and appended a receipt to this effect in his Dast Khata Bahi under his own handwriting and signature. A correct copy of the same was exhibited as A.W. 9/2 and a photostat copy as A.W. 9/A. He further stated that on the execution of this receipt, he was convinced that the landlord must have withdrawn the application which he actually had not with drawn and played a fraud upon him and obtained warrants of possession thereafter. The cheques issued to the landlord were exhibited as A.W. 9/3 to A.W. 9/11 which were duly encashed on presentation. Exhibit A.W. 9/6 is the dheque dated 3rd of July, 1974, bearing No. 481428 for Rs. 675/- issued in favour of Ram Gopal Kalia, the landlord, which was enchased and the amount was credited to the landlord''s account. Several other documents were produced in support of the tenant''s case. The landlord examined four witnesses besides appearing himself as R.W. 5. The statement of the landlord deserves to be closely examined. The relevant part of his cross examination is as follows :--

I had not received the rent upto 31st March, 1974, before the filing of ejectment application. I have seen the original receipt dated 3rd July, 1974 in the Bahi of respondent and its photostat copy is Ex. A.W. 9/IA. This receipt is in my hand and bears my signature, but I received rent upto March, 1974 only vide this receipt (later part volunteered). I am a graduate and am managing business and property for the last more than 20............................ It is incorrect to suggest that by means of receipt Ex. A.W. 9/IA I had received the rent upto the end of March, 1974. It is correct that I received rent for the month of January, February, and March vide this receipt @ Rs. 225/- p.m................................. I do not remember if myself and Uttam Singh came to court on March 20, 1975. It is incorrect that I never met him on March 20, 1975 and he did not shown me the above original receipt in his bahi. It is incorrect that I told him after seeing receipt that after going to my house I shall verify this payment and he went with me to city. It is also incorrect that after reaching city I verified from my pass book and told Uttam Singh that I will instruct my lawyer to withdraw the application since there were no arrears of rent. Rent for November and December, 1974 and January, 1975 was received by me without prejudice vide receipt copy Ex. A.W. 9/2A, but its incorrect that it was received in furtherance of representation referred to above........................................................................... I maintain my personal accounts and enter recovery of rent in them. I have not brought these books. It is correct that amounts entered in cheques Ex. A.W. 9/3 to 11 were received by me from Uttam Singh towards the rent of demised premises and all these cheques were realised. It is incorrect that I played a fraud upon the tenant Uttam Singh and Court by not withdrawing the application as settled outside the court. I have teen the endorsements made in the back of original rent note dated August 30, 1971 relating to disputed tenancy as placed in ejectment file Vide first endorsement I received rent amounting to Rs. 1125/- upto December, 1971 on 3rd December, 1971 in Court, but not for the full month of December There is also a 2nd endorsement in the back of this rent note which reads as under:--

Rs. 225/- paid rent by cheque of Punjab & Sind Bank 673580 dated February 15, 1972 for the month of January, 1972.

The third endorsement runs as under :--

Rs. 450/- paid rent by cheque of Punjab Sind Bank No 075741 dated April 5, 1972 for the rent of February and March, 1972.

First above referred endoresment is in my hand and 2nd and third are in hand of tenant. Under the terms of rent note rent was payable monthly in advance. I have seen my alleged statement dated December 3, 1971 recorded in rent case file No. 161 of 1971 decided on December 2, 1971 in Court of Shri R.K. Bhattas, Rent Controller, Amritsar, copy of which is Ex. A.W. 9/19. I cannot say if the signatures under the above statement are mine. It is correct that I bad filed above ejectment application. I do not remember the result of the aforesaid case. I never received rent after 31st December, 1971 for 6 days of any month singly or alongwith other period. It is incorrect that I have not brought my account books since they support version of respondent. Till obtaining possession of demised premises I never intimated Uttam Singh about continuation of Rent application and passing of exparte order therein.....................

The statement of Ram Gopal Kalia, the landlord is Exhibit A.W. 9/19 dated 3rd December, 1971 about which the landlord was cross-examined, translation of which is as follows :--

Rent 225/- upto 31st December, 1971. Interest Rs. 7/-. Interest has been taken. Now I do not want to proceed with the application.

Sd/- Ram Gopal Kalia

Sd/- R.K. Bhattas Rent Controller.

The three endoresements on the original rent note about which the landlord was cross-examined also deserve to be reproduced '' here :--

Rs. 1125/- Received rent upto December, 1971 through Court of S.S. Judge on 3rd December, 1971

Sd/- R.G. Kalia

225/- Paid rent by cheque of Punjab Sind No. 073580 dated 5th February for the month of January, 1972.

450/- Paid rent by cheque of Punjab and Sind Bank No. 07571 dated April 5, 1972 for the rent of February and March, 1972.

At this stage two Bahi entries, Exhibits A.W. 9/1A and A.W. 9/2A, produced by the tenant with which the landlord was confronted, also deserve to be reproduced :

A.W. 9/1A

Rs. 675/-

Received a cheque No. 481478/July 3, 1974 on the Punjab & Sind Bank Ltd. as rent for January /March, 1974 from M/s Uttam Singh Inderjit Singh.

July 3, 1974.

S/d- Ram Gopal Kalia,

A.W. 9/24/Rs. 575,

Received Rs. Six hundred and seventy five only as rent for November, December 1974 and January, 1975 from M/s. Uttam Singh Inderjit Singh without prejudice.

Dated June 7, 1975

Sd/- Ram Gopal Kalia.

On the both photostat copies there is a note that the original had been seen and copy admitted on behalf of the landlord.

On the basis of the evidence led in the case, two points were raised on behalf of the tenant, (i) that the arrears of rent were only due from April 1, 1974 upto the end of October, 1975 and since tender was made on the first date of hearing in respect of the aforesaid arrears, hence nothing remained due, and (ii) that in respect of ex-parte ejectment order dated April 1, 1975, the tenant regularly carried on business in the disputed property till 28th August, 1975 when possession was obtained by the landlord in execution of the ex-parte ejectment order. Both these points were urged on the basis of the evidence led on the file to support the stand of the tenant that on 20th of March, 1975, the landlord was satisfied on seeing the Bahi entries of the tenant, the correctness of which was verified by landlord from his pass-book that no arrear was due and told the tenant that he need not go to the Court as he will withdraw the application and that this representation was accepted by the tenant and if the landlord had not made this representation and the ejectment order had been passed on 1st April, 1975, the landlord would have immediately taken out execution and would have obtained possession soon after 1st April, 1975 and would not have waited till the end of August, 1975 so that the limitation for filing of application for setting aside the ex-parte ejectment order may lapse in the meantime. The receipt of rent by the landlord on 7th June, 1975 for the months of November and December, 1974 and January, 1975, vide receipt Exhibit A.W. 9/2, photostat copy of which is exhibit A.W. 9/2A further goes to show that till that day the landlord was giving out that the tenant was continuing as such and the case had probably been got dismissed. In respect of the two important points raised on behalf of the tenant, the Court below was of the opinion that those two points could not be looked into in the proceedings for setting aside the ex-parte ejectment order. Instead, the Court below referred to earlier three ejectment applications and concluded therefrom that in the present 4th ejectment application, the tenant should have been more vigilant and his absence from the court must be held due to gross negligence and accordingly held that the tenant failed to show a reasonable and sufficient cause for setting aside the ex-parte ejectment order and dismissed the application by order dated 16th February, 1981. Against the aforesaid order, the tenant came to this Court in the present civil revision petition. As already indicated in the earlier part of the judgment, on the peculiar facts of this case, I considered it a fit case for exercising the suo motu revisional jurisdiction of this Court as provided by section 15(5) of the Act, for revising the ex-parte order of ejectment passed by the Rent Controller on 1st April, 1975.

After hearing the counsel for the parties, I am of the view that Civil Revision No. 663 of 1981 filed by the tenant against the order of the Court below dated 16th February, 1981, declining to set aside the ex-parte ejectment order, deserves to be allowed. It cannot be disputed that fraud would vitiate agreements, contracts and even the orders of Courts. The case of the tenant is that he came to the Court on 20th March, 1975, which admittedly was a date of hearing in the case. He brought his Bahi containing the original receipt executed by his landlord showing receipt of rent on 3rd July, 1974, for the months of January, February and March, 1974, in the sum of Rs. 675/- by cheque No. 481478 dated 3rd July, 1974, and showed the same to his landlord. He was told by the landlord that he would go to his house and verify this payment. It is then his case, that both of them went to the city and the landlord verified the encashment of the aforesaid cheque from his pass book and told him (the tenant) that he would instruct his lawyer to withdraw the ejectment application since there was no arrears of rent The landlord in his statement, which has been reproduced above, has clearly admitted that he met the tenant on 20th March, 1975 who showed him the aforesaid original receipt in his Bahi although he did not remember if both of them had gone to the Court on that date. The presence of the tenant is recorded in the proceedings of the Court dated 20th March, 1975, whereas the presence of the counsel for the landlord is recorded. Therefore, it is clear that the tenant had gone to the Court on that day and in all probability with his Bahi to produce the same as evidence on his behalf because on 22nd January, 1975, the case had been adjourned for 27th February 1975, for the evidence of the tenant on which date the earlier Presiding Officer had been transferred and the new Presiding Officer had not taken over and it was on 20th March, 1975, that the case between the parties came up before the new Presiding Officer. Under the circumstances. I believe that the tenant had taken his Bahi to the Court on 20th March, 1975, to produce the same in his evidence, The landlord has admitted in his statement that on that date both had met and the original receipt in the Bahi was shown to him. Once these facts are admitted between the parties, then the next question would be whether it would be reasonable and probable to believe the statement of the tenant that the landlord told him that he would verify the facts from his record and both went along and on verification the landlord told the tenant that he had received the payment for the month of March and hence the tender made in court for April to October was valid and he would instruct his lawyer to withdraw the ejectment petition or to believe the landlord that he never told the tenant that he would verify the payment from his records and he never verified the records in the presence of the tenant and never told him that he would withdraw the petition. On the facts of the present case, I am of the view that the statement of the tenant deserves to be believed that the landlord played fraud on him after making a representation that he would withdraw the petition, which is evident from the following facts found on the record :--

(i) Admittedly, the landlord and the tenant met on 20th March, 1975, when the tenant showed the original receipt contained in his Bahi, evidencing the payment of rent for the month of March, 1974;

(ii) the tenant had tendered arrears of rent from 1st April, 1974 to 31st October, 1974, on the first date of hearing which according to the landlord was not a valid tender as the tenant has not paid rent for the month of March, 1974, but would be a valid tender according to the tenant if payment for the month of March, 1974, had already been made ;

(iii) if the tenant had failed to appear in the proceedings of the case after 20th March, 1975, because of his own and not because of the representation of the landlord as pleaded by him, then moment the order of ejectment was passed by the Rent Controller on 1st April, 1975, the same day or soon thereafter, the landlord would have taken out execution to take possession of the premises from the tenant. The landlord did not follow this course and waited for nearly five months to take out execution. What transpired in the between would be noticed in the subsequent paragraphs which would show that the landlord purposely did not take out execution because he wanted to give an impression to the tenant for a sufficiently long time that he had withdrawn the ejectment application as per his representation made to him and after the landlord was satisfied that the tenant was still banking on his representation for almost 4-5 months, he took out execution and obtained possession of the promises in dispute ;

(iv) although the ejectment order had been passed on 1st April, 1975, on 7th June, 1976, i.e. more than two months before the execution was taken out and possession obtained from the tenant, the landlord received Rs. 675/- in cash as rent from the tenant for the months of November and December, 1974, and January, 1976. It is not the case that the relationship of landlord and tenant had come to an end on 1st April, 1975 and therefore, the parties squared the matter of arrears of payment of rent upto that date. Instead, the landlord clearly gave out by this receipt of rent that the relationship of landlord and tenant was continuing between the parties and he received the rent for a period of three months, succeeding the period for which payment had been made in Court, in the normal course of events. When this matter was put to the landlord, when he appeared as a witness, he denied the suggestion that he received the rent for the aforesaid period in furtherance of the representation which is pleaded by the tenant but stated that he received the same without prejudice It is true that in the receipt vide which the payment was received the words "without prejudice" are mentioned but it does not signify nor makes a clear disclosure to the tenant that the relationship of landlord and tenant had come to an end between the parties as an ex- parts ejectment order had been passed on 1st April, 1975,. A reading of the statement of the landlord clearly goes to show that at no point of time during the period of five months, during which the landlord took no steps to execute the ejectment order, the tenant was ever given an inkling that an ejectment order had been passed against him or that rent for the month of March, 1974, was still due from him as is the case now being set up by the landlord.

(v) The receipt of rent for the months of November and December, 1974, and January, 1975, by the landlord, after the passing of the ejectment order, further goes to prove that the tenant is right when he says that a representation was made by the landlord that he would withdraw the ejectment petition as rent for the month of March 1974, had been paid and the tender was valid because otherwise the landlord would not have received the rent for the specified months of November and December, 19 4, and January, 1975, as, according to him, the tender for the month of March, 1974, was short and in that event he would have received rent either for three months without mentioning the particular months or for the months of March, November, and December, 1974. The receipt of rent vide Exhibit A.W. 9/2, dated 7th June, 1975, for the months of November and December, 1974, and January, 1975, would clearly give more than necessary representation to the tenant from the side of the landlord that even on that date he was satisfied that before the filing of the ejectment petition be had received rent upto March, 1974 vide receipt dated 3rd July, 1974 (Exhibit A.W. 9/1) and hence the tender made in Court from April to October, 1974, was valid and the landlord must have withdrawn the petition for ejectment soon after he made the representation on 20th March, 1975 ;

(vi) the proceedings of the Rent Controller in the ejectment case clearly show that till 20th March, 1975, the tenant had been appearing himself throughout except on one date of hearing when he could not appear and in order to have the ex-parte proceedings set aside an application was made and the landlord agreed for the setting aside of the ex parte proceedings. Under these circumstances, the only reasonable inference which can be drawn on the facts of the present case is that after 20th March, 1975, the tenant did not appear in the proceedings because of the representation made by the landlord that since the tenant had paid all arrears of rent due on the first date of hearing, he will withdraw the petition and he need not attend the Court any further and this fact is endorsed by the subsequent conduct of the landlord of receiving rent in the month of June 1975, i.e. more than two months after the passing of the ejectment order ;

(vii) the tenant''s plea was that he had paid rent for the month of March, 1974, before the filing of the ejectment petition and from April to October, 1974, on the first date of hearing and, therefore the tender was valid and on merits no ejectment order could be passed against him and he did not appeal in Court because of the representation of the landlord. Instead, the stand of the landlord was that the tender was insufficient. He has not taken any specific plea in this regard although the evidence which he has tried to lead shows that the payment for the month of March, 1974, was also due. In order to show that the payment had been made for the month of March, 1974 as well, the tenant had led voluminous evidence, whole of which was put to the landlord and deserves to be noticed. The rent note dated 30th August, 1971, executed between the parties was produced by the landlord as Exhibit A-1 in the ejectment file The rent note shows that the premises were taken on rent for a period of eleven months w. e. f. 7th August, 1971, at the rate of Rs. 225/- per month. There are three endorsements on the back of the rent note which were put to the landlord when he appeared in the witness box. The first endorsement which is in the hand of the landlord himself reads ;

Rs. 1125/- Received Rent upto December, 71 through Court of S.S. Judge on 3rd December, 1971, Sd/- R.G. Kalia.

This receipt represents the rent for a period of five months. Admittedly the tenancy started on 7th August, 1971, and five months rent would be upto 6th January, 1972, but according to the aforesaid endorsement it is shown upto December, 1971. When this endorsement was put to the landlord, he gave the following explanation :--

Vide first endorsement I received rent amounting to Rs. 1125/- upto December, 1971, on 3rd December, 1971, in Court. But not for the full month of December.

Once the tenancy started on 7th August and the rent is paid for fully five months, then necessarily it has to be upto 6th January, 1972, including for the full month of December, 1971, and the explanation of the landlord is not only false but is totally incorrect on the face of the record. The second endorsement shows payment of rent for the month of January, 1972, and the third endorsement shows payment of rent for the months of February and March, 1972. This clearly shows that although the receipts show payment of rent upto the end of a particular month, but in fact it would represent payment upto the 6th of the following month. On these facts, if the receipt shows that rent is received for the month of December, 1971, then it would at least be upto the end of December and if a receipt shows that the rent was received upto the month of January, then it will atleast be upto the end of that month and soon. Therefore, even if it is treated that the aforesaid three endorsements on the back of the rent note represent payment upto the end of December, 1971, end of January, 1972, and end of March, 1972, the rent for the subsequent months would also represent payment for the entire month stated in the receipts and in this manner while there would be over payment for six days'' rent to the landlord, it would be a loss to the tenant. Even on this basis it has been borne out from the record that the landlord had received rent from the tenant for the month of March, 1974, which would be clear from the documents referred to in the succeeding paragraphs.

To prove the first endorsement on the back of the rent note to be correct, the tenant produced Exhibit A.W. 9/18, a COPY of the order of the Rent Controller, Amritsar, dated 3rd December, 1971, a reading of which shows that the tenant appeared and paid the arrears of rent unto 31st December. 1971, with interest and costs and after recording the statement of the landlord that he did not want to proceed with the ejectment application, the same was dismissed. Exhibit A.W. 9/19 is the statement of the landlord recorded in that case which shows that rent at the rate of Rs. 225/- per mensem was received by the landlord upto 31st December, 1971, and Rs. 7/- as costs. This statement was nut to the landlord when he appeared in the witness box and although he admitted that he had filed an ejectment application but stated that he did not remember the result of the same and regarding his signatures under the statement, he stated as under :--

I cannot say if the signature under the above Statement are mine ... ... ... ... ...

This shows the demeanour of the landlord who is not prepared to admit his own signatures appended to his statement recorded in the Court which fact is corroborated by the order of the Court Exhibit A.W. 9/18 and the first endorsement on the back of the rent note.

The two relevant receipts which now fall for consideration to conclude the matter are Exhibit A.W. 9/1, a photostat copy of which is Exhibit A.W. 9/1A which shows that a sum of Rs. 675/- was paid by the tenant on 1st July, 1974, by cheque No. 481478 on the Punjab and Sind Bank Ltd., towards rent for the months of January to March, 1974 and receipt Exhibit A.W. 9/2, a photostat copy of which is Exhibit A.W. 9/2A, dated 7th June, 1975 for Rs. 675/- which shows that rent for the months of November and December, 1974, and January, 1975, was paid by the tenant to the landlord besides paying rent for the months of April to October, 1974, in court on the first date of hearing, The aforesaid payments have to be viewed in the background as found above that payment shown for a particular month would at least before whole of (sic) month and if these payments are seen in this background, then it (sic) be clear that vide Exhibit A.W. 9/1 the landlord was paid rent (sic) hole of the month of March, 1974, and since the tenant made payment from April to the end of October, 1974, in Court, that is why, the landlord even after the decision of the ejectment application received rent for the months of November, and December, 1974, and January, 1975, vide Exhibit A.W. 9/2. Otherwise, he would not have received rent for any particular month if really the tender was invalid as the tenant had failed to make the tender for the month of March, 1974, and had not make any such representation as alleged by the tenant. Accordingly, I believe the tenant that the landlord did make the representation on 20th March, 1975, which was believed by the tenant whereas the landlord defrauded him and in spite of committing a fraud on 1st April, 1975, by obtaining an ex-parte ejectment order, continued to mislead the tenant till 7th June, 1975, when he received the payment for the months of November and December, 1974, and January, 1975, still giving a representation on that date that he had received payment for the month of March, 1974, before the filing of the ejectment application and that the tender was valid. The landlord is clearly telling a lie when he denied that he did not make any such representation.

For the reason recorded above, I hold that the ex-parte ejectment order was obtained by the landlord by committing fraud on the tenant and as such the ex-parte ejectment order was vitiated and the Court below was clearly in error in not setting aside the same. Accordingly, I allow the revision filed by the tenant against the order of the Court below and after setting aside the same, the application filed under Order IX, rule 13 is granted and the ex-parte ejectment order dated 1st April, 1975, as also the proceedings taken after 20th March, 1975, are hereby set a side with costs therefrom.

In the normal course of events, 1 would have sent back the case to the Rent Controller, to try it from the stage it was on 20th March, 1975 but on the peculiar facts of this case I find that it is a fit case for exercise of suo motu revisional jurisdiction of this Court u/s 15(5) of the Act, which is in the following terms :--

(15)5. The High Court may, at any time on the application of any aggrieved party or on its own motion call and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality of propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit.

The reasons to exercise the suo motu power of this Court are not far to seek. The aforesaid discussion has clearly shown that before the filing of the ejectment petition the tenant had paid rent upto March, 1974, and the ejectment petition was filed on 5th November, 1974, in which it was stated that the tenant was in arrears of rent from 7th March, 1974, to 6th November, 1974. As already shown, rent for whole of the month of March, 1974, had been paid. Therefore, rent was due only from April, 1974, onwards According to the proviso to section 13(2)(i) of the Act if the tenant pays or tenders arrears of rent due on the first date of hearing, then no order of ejectment is to be passed. The relevant provision which falls for our consideration is as under :--

13(2)........................

(i) that the tenant has not paid or tendered the rent (sic) him in respect of the building or rented land within fifteen after the expiry of the time fixed in the agreement of tenancy of his landlord or in the absence of any such agreement by day of the month next following that for which rent is payable :--

Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.

According to the aforesaid provision, it has to be seen as to rent for which period was due on 5th November, 1974, when the ejectment application was filed. A reading of the rent note shows that the rent was payable in advance On the first date of hearing the tenant tendered rent upto the and of October, 1974 If the tender of rent upto the end of October, 1974, is valid, then no order of ejectment can be passed in this case However, if the tenant was liable to pay rent for the month of November, 1974, also on the first date of hearing, then alone he would be liable to be evicted. A reading of the aforesaid provision shows that if there is an agreement for payment of rent in advance then it falls due after the expiry of fifteen days from such agreed date Assuming that in the present case the rent was payable on the first day of the month in advance then for the month of November, 1974, the rent would be payable on the 1st November, 1974. According to the aforesaid provision, it would become due giving a ground for ejectment to the landlord only if rent is not paid by 15th/16th of November, and if an ejectment application had been filed after that date it may have been argued (assuming that the rent was payable in advance on the first day of the month) that the tender was invalid but the ejectment application was filed on 5th November, 1974, long before the rent became due for the month of November,. Hence the tender is valid. The aforesaid matter has been decided taking the case of the landlord at the best whereas the case of the landlord would fall on the facts of the present case under the succeeding paragraph. The aforesaid observation has been made to show that even if the case of the landlord is placed at a higher pedestal than it is, even then he would not succeed. Therefore, no useful purpose will be served insending back the case and the matter deserve to be decided right now.

The facts of the present case are that no date has been fixed for payment of rent in advance. Therefore, payment for the month of November, 1974, even on 30th of November, 1974, would mean advance rent because if no date for payment of advance rent is mentioned in the agreement, then it is not clear as to which would be that date during the current month from which fifteen days will have to be calculated. On one case the date of payment of advance rent may be the first of that month, in another case it may be the 7th of that month and in a third case it may be the 14th and as in the present case if no date is fixed, then I assume that the payment during the currency of the month would be advance payment and in this view the payment for the month of November, 1974, would become due on 14th/15th December, 1974, and since the ejectment petition was filed on 5th November, 1974, the rent for the month of November had not fallen due and the tenant was not obliged to tender rent for the month of November, 1974 Hence, on these premises also, the tender made by the tenant is valid.

As found in the earlier part of the judgment that the tenancy was from 7th to 6th, therefore, the tenant will be deemed to have paid rent upto 6th of November, 1974, because the rent for the month of October, would start from 7th of October, 1974 to 6th of November, 1974, and the ejectment application having been filed on 5th November, 1974, would be clearly pre-mature from any angle to claim ejectment on the ground of non-payment of rent for the month starting from 7th November, 1974,. Viewing the case from this angle also, the tenant has made a valid tender and is not liable to ejectment.

For all the aforesaid reasons, in exercise of my suo motu powers of revisional jurisdiction u/s 15(5) of the Act, I find that it is a fit case in which the ex parte ejectment order cannot be sustained on merits nor any ejectment order can now be passed in pursuance of the acceptance of the revision setting aside the ex-parte ejectment order Accordingly. I find that the landlord has failed to make out a case for grant of ejectment of the tenant on the ground of non-payment of rent. Even if I had not found any merit in the application for setting aside the ex-parte ejectment order under Order IX rule 13 of the Code. 1 would have set aside the ex-parte ejectment order in pursuance of suo motu powers of this Court u/s 15(5) of the Act. Assuming that I have not allowed the application under Order IX, rule 13, I hereby set aside the ex-parte ejectment order on merits on coming to the conclusion that the tender made on the first date of hearing was valid and the Rent Controller was clearly in error in coming to the conclusion that the tender was invalid. In the alternative, since I have allowed the application under Order IX, rule 13 of the Code and considering that it will meet the ends of justice if the matter is considered by this Court to decide the ejectment petition here instead of sending it back to the Rent Controller, I find that the landlord has clearly failed to make out a case for obtaining an ejectment order on the ground that the tender was invalid as I find that the tender was valid.

For the reason recorded above the suo motu revision is allowed and the ejectment application filed by the landlord is found to be without any merit and is dismissed with costs throughout.

Since the landlord had obtained possession of the premises in dispute in pursuance of the ejectment order, he has to restore the premises to the tenant forthwith. The landlord had stated in this Court that he had let out the premises in dispute in separate parts to two tenants, one on 7th March, 1981, and the other on 14th March, 1981, one of whom, namely Raj Kumar Kapoor of M/s Rahnesh Enterprises, appeared in this Court through C.M. No. 2763-CII of 1981, and was allowed to take part in the proceedings. Therefore, all persons who are in possession of the premises in dispute after the landlord obtained possession will also vacate and would be liable to put the tenant in possession. Accordingly, in terms of the observations made in para 12 of the Supreme Court Judgment in Sant Ram Vs. Rajinder Lal and Others, , a direction is issued that the petitioner tenant shall be restituted into possession by the Executing Court u/s 144 of the Code, on the expiry of three months from today, after dispossessing the landlord or any other tenant or person who may have come into possession of the premises in dispute after the tenant was evicted.