Ram Lal vs Ashok Kumar

J.V. Gupta, J.—''This is tenant''s revision against whom eviction order has been passed by both the authorities below.

Ashok Kumar, landlord, sought eviction of his tenant Ram Lai, from the tenancy premises on the ground that he had not paid the arrears of rent and house-tax from 1st October, 1975 to 30th June, 1979. The rate of rent was alleged to Rs. 150/- per mensem. The application was filed on 25th July, 1979. The plea taken by the tenant was that the rate of rent was Rs. 80/- per mensem, including the house-tax. He further stated that he had paid the rent for the month of August, 1978, but no receipt was issued to him He, however, tendered arrears of rent from 1st August, 1978 to 31st August, 1979 at the rate of Rs. 80/- per month; interest and costs, as assessed by the Rent Controller. The arrears of rent were accepted by the landlord, as part payment and under protest. The landlord-applicant closed his evidence and the case was adjourned for the evidence of the tenant. On 5th November, 1982 the tenant himself appeared as RW-1 and examined Chaman Lal (RW-2) and then the case was adjourned to 11th November, 1982 for the remaining evidence of the tenant, subject to payment of Rs. 50/- as costs. On the adjourned date neither the tenant'' appeared, nor were the costs paid. The learned Rent Controller struck of the defence of the tenant for non payment of the conditional costs and also closed his evidence under Order 17, Rule 3 of the CPC (the Code in short) and passed the ejectment order against the tenant. In appeal, the Appellate Authority affirmed the said order of the Rent Controller. Dissatisfied with the same, the tenant has preferred this revision in this Court.

The learned counsel for the petitioner contended that if on 11th November, 1982 the tenant or his counsel could not appear, then, in that situation, orders could be passed under Order 17, Rule 2 and not under Order 17 Rule 3 of the Code. Thus, argued the learned counsel, in that eventuality he could make an application for setting aside the exparte order. In any case, argued the learned counsel, the question of striking of the defence, as such did not arise. In support of his first contention, he referred to Ramarao aad other v. Shantibai AIR 1977 M.P. 225, Parikshit Sai and Another Vs. Indra Bhoi and Others, , Hindusthan Steel Ltd. Vs. Prakash Chand Agarwal and Another, , Swami Prasad Pradhan Vs. Hargovind Sahai Mathur and Others, and Orissa Supply Agency and others v. Mirza Jaliluddin A.I.R 1962 Ori 212, On the other hand, the learned counsel for the respondent submitted that it was the conduct of the tenant which warranted the passing of the order under Order 17 Rule 3 of the Code and striking off the defence.

After hearing the learned counsel for the parties, I am of the considered view that even if the evidence could be closed under Order 17. Rule 3 of the Code, even then the question of striking off the defence, as such, did not arise. Moreover, whatever evidence was already led by the tenant was to be considered by the Rent Controller before passing the ejectment order. Admittedly, this has not been done. Under these circumstances, the revision is accepted and the orders of the authorities below are set aside and the case is sent back for decision on merits, subject to payment of Rs. 300/- as costs. Apart from that, the tenant will furnish security to the satisfaction of the Rent Controller for payment of arrears of rent at the rate of Rs. 150/- per mensem in case ejectment order is passed against him on that ground, and also an undertaking in writing that he would pay the rent at the rate of Rs. 150/- per mensem till possession is handed over to the landlord. Apart from that all the arrears of rent, upto date, at the rate of Rs. 80/- p. m., with interest will be deposited by the tenant on the date the parties appear before the Rent Controller, failing which this revision will stand dismissed. The parties have been directed to appear before the Rent Controller on the 27th of February, 1983.