Subhiksha Trading Services Ltd. vs V. Sethulakshmi

G. Rajasuria, J.—Animadverting upon the order dated 19.04.2010 passed in M.P. No. 25 of 2010 in RCA No. 128 of 2006 by the

learned VII Judge, Court of Small Causes, Chennai, this civil revision petition is focussed.

Heard both sides.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this revision would run thus:

The respondent herein filed the RCOP as against the revision petitioner herein seeking eviction on the ground of wilful default in paying rent. The

Rent Controller ultimately ordered eviction after conducting regular enquiry, as against which RCA was filed. During the pendency of the RCA, it

appears applications were filed and dealt with. Ultimately one other application in M.P. No. 182 of 2009 was filed by the landlady as against the

tenant u/s 11(3) and (4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 [hereinafter referred to as ''the Act'']. Whereupon, the

Court took up the petition and passed orders directing the tenant to deposit the arrears of rent from 01.09.2008 to 31.07.2009 at the rate of Rs.

11,500/- on or before 11.09.2009. The Court also stipulated that if there was non compliance, then consequential order would be passed as per

Section 11(4) of the Act. It appears consequential order of stopping the proceedings also was passed in RCA. Subsequently, M.P. No. 25 of

2010 was filed by the tenant u/s 5 of the Limitation Act to get the delay of 101 days condoned in filing the application to get set aside the ex parte

order passed in M.P. No. 182 of 2009. Both sides were heard in the application u/s 5 of the Limitation Act and ultimately the appellate Court

ordered that the said application cannot be entertained for the reason that according to the appellate authority the order passed in M.P. No. 182 of

2009 on 25th August 2009 was not an ex parte order. Being aggrieved by and dissatisfied with the said order, this revision is focussed on various

grounds.

The Learned Counsel for the petitioner placing reliance on the grounds of revision would develop his argument thus:

A mere perusal of the order dated 25th August 2009 in M.P. No. 182 of 2009 would display and demonstrate that the said order was not an

order passed after hearing the tenant, but it was only to be treated as an ex parte order. However, the appellate authority while disposing of the

application u/s 5 of the Limitation Act, treated the said order dated 25th August 2009 in M.P. No. 182 of 2009 as not an ex parte order and

accordingly, dismissed the said application. Accordingly, the Learned Counsel for the tenant would pray for setting aside the order dated

19.04.2010 and remit the matter back to the lower Court for considering the application u/s 5 of the Limitation Act on merits.

Per contra, contradicting and gainsaying, refuting and impugning the contentions/arguments as put forth on the side of the tenant, the Learned

Counsel for the landlord would submit and advance his arguments thus:

The order dated 25th August 2009 can never be treated as an ex parte order, as the appellate Court took into account the pros and cons of the

matter and also the chronic default in paying rent on the part of the tenant and ultimately on merits, rendered its order which cannot be set aside as

an ex parte order. The appellate authority while disposing of M.P. No. 25 of 2010 clearly highlighted that there was no ex parte order at all and in

such a case, the question of condoning the delay in filing the application to get the ex parte decree set aside.

The point for consideration is as to whether the appellate authority was justified in treating the order dated 25th August 2009 passed in M.P.

No. 182 of 2009 as not an ex parte order?

It is therefore just and necessary to extract certain excerpts from the order dated 25th August 2009 in M.P. No. 182 of 2009:

(1) Heard both side argument. Perused records.

(extracted as such)

However, in the impugned order dated 19.04.2010 in M.P. No. 25 of 2010, the Court at paragraph No. 6 stated thus:

At the first instance it has to be determined as to whether the orders passed in MP 182/09 is an order on merit or an ex parte order. It is evident

from the docket orders passed in MP 182/09 filed u/s 11(3) and (4) of TNBLR Act by the respondent/landlady that in spite of sufficient service of

notice the petitioner/tenant have not appeared before the Court till 23.6.09. It is evident from the docket order dt.7.7.09 that at the request of the

Counsel for tenant time was granted for filing of counter till 20.07.09 and subsequently till 22.7.09. The petitioner/tenant had filed his counter

affidavit in MP 182/09 on 22.7.09 and during the course of enquiry the Counsel for the respondent/landlady was heard on 30.7.09 and at the

request of the Counsel for the tenant it was adjourned to 4.8.09 for hearing the Counsel for respondent. The said MP was posted for hearing on

10.8.09, at the request of the Counsel for tenant and was adjourned to 14.8.09 and then adjourned to 25.8.09. On that day also as the tenant was

called absent and as there was no representation for the tenant by his Counsel in spite of sufficient opportunity for giving reply the matter was

posted for orders.

The Learned Counsel for the tenant inviting the attention of this Court to the aforesaid paragraph No. 6 as against the excerpt found extracted

from the order dated 25th August 2009, would develop his argument that even though in the earlier order in M.P. No. 182 of 2009 it was typed

as though both sides were heard, subsequently in the said paragraph No. 6 of the order dated 19th April 2010 in M.P. No. 25 of 2010 the Court

itself pointed out that it was virtually an ex parte order, even though in the latter portion of the same order the learned Judge would proceed to hold

that the said order dated 25th August 2009 in M.P. No. 182 of 2009 was not an ex parte order.

Whereas, the Learned Counsel for the landlord would submit that a mere perusal of the order dated 25th August 2009 in M.P. No. 182 of

2009 would reveal that both sides were heard and whereupon alone order was passed on merits and there is no indication in the said order that

the arguments were not heard and that only an ex parte order was passed. However, subsequently one other Judicial Officer occupying the post of

appellate authority under the Act in paragraph No. 6 of his order stated as though the Learned Counsel for the tenant did not argue the matter.

Whereupon, this Court ordered the appellate Court records to be brought before this Court and the docket entries in M.P. No. 182 of 2009 are

extracted hereunder for ready reference:

23.06.2009 : Respondent called absent. No representation. Counter if any by 7.7.2009. 07.07.2009: Respondent Counsel present. At request

T.E. for counter. Call on 20.07.09

20.07.2009: At request of respondent Counsel, T.E. to 22.7.09.

22.07.2009: Counter affidavit filed. For enquiry call on 30.07.09

30.07.2009: Heard the Counsel for the petitioner. Petitioner Counsel filed memo with receipt as petitioner is only paying the taxes. Respondent

Counsel present. At request for reply by respondent call on 4.8.09.

04.08.2009: At request adj. to 10.08.09 for reply by respondent.

10.08.2009: Respondent absent. No representation. To give another opportunity for reply by respondent call on 14.8.09.

14.08.2009: Respondent called absent. No representation. Sufficient opportunity time for reply. Respondent not turned up. For orders call on

25.08.2009.

25.08.2009: Orders pronounced. In the result, the respondent is directed to pay or deposit the arrears of rent from 01.09.2008 to 31.07.2009 @

Rs. 11,500/-

On perusal of the said docket entries, it is quite obvious that in paragraph No. 6, the learned Judge on 19th April 2010 in M.P. No. 25 of 2010

correctly referred to the entries in the docket. It is therefore crystal clear that erroneously in the order dated 25th August 2009 in M.P. No. 182 of

2009 the then learned Judge stated as though both sides were present and arguments were heard etc.

Now the question arises as to whether non hearing of the Learned Counsel for the tenant, owing to the default on the part of the tenant or his

Counsel in appearing and arguing, could be taken as sufficient to hold that the said order dated 25th August 2009 was an ex parte order. I would

like to refer to the decision of the Hon''ble Apex reported in (2009) 2 SCC 705 Asit Kumar Kar v. State of West Bengal and Ors., an excerpt

from it would run thus:

It is a basic principle of justice that no adverse orders should be passed against a party without hearing him. This is the fundamental principle of

natural justice and it is a basic canon of jurisprudence"".

A plain reading of the aforesaid judgment of the Hon''ble Apex Court would show that if any order is passed without hearing the parties

concerned, then it cannot be taken as a one passed on merits. No doubt, all ex parte orders are expected to be one passed on merits only. Simply

because an order is ex parte one, the learned Judge is not expected to simply allow the application. Here, no doubt the learned Judge concerned

on 25th August 2009 in M.P. No. 182 of 2009 considered various aspects and passed the order, however such order was passed without hearing

the arguments on the side of the tenant and hence it has to be held as an ex parte order only. As such, the Learned Counsel for the tenant would

pray for giving him an opportunity to put forth his arguments and in that process alone they filed the application u/s 5 of the Limitation Act.

However, the appellate authority dismissed it not on the ground that there were laches or negligence on the part of the tenant in filing the application

u/s 5 of the Limitation Act, but he went to the extent of pointing out that the question of filing the application u/s 5 of the Limitation Act would not

arise at all because the order which was sought to be set aside, so to say the order dated 25th August 2009 was not an ex parte order. The

ratiocination adhered to by the appellate Court in dismissing M.P. No. 25 of 2010 is not correct and he should have considered as to whether the

reasons found set out in the affidavit accompanying the application for getting the delay of 101 days condoned are genuine or not, but instead of

doing that he took a different view of the matter and dismissed it. Hence, in these circumstances, I am of the view that the matter has to be remitted

back to the appellate Court to hear both parties relating to the application u/s 5 of the Limitation Act and pass orders within a week from the date

of receipt of a copy of this order and accordingly I order so.

This civil revision petition is disposed of. No costs.