Tara Chand vs Sheo Parshad

D.V. Sehgal, J.—The landlord-Respondent filed an application u/s 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short ''the Act''), against the tenant-Petitioner in the Court of the learned Rent Controller, Ambala, for his eviction on the ground that he has neither paid nor tendered rent for the period 1.8.1983 to 31.7.1986. Notice of this application was issued to the Petitioner. He was served on 15.9.1986. He was required to appear in Court on 21.10.1986 He, however, did not appear in response to the summons on that date. Therefore, the learned Rent Controller took ex-parte proceedings against him.

A week thereafter, the Petitioner filed an application on 28.10.1986 for setting aside the ex-parte proceedings. Ho alleged that the notice of the Court which he had received had been misplaced. He was under the wrong impression that the date of hearing was 25.10.1986 but when he came to the Court on that date he learnt that he had been proceeded against ex-parte on 21.10.1986. He sought setting aside the ex-parte proceedings. The prayer was opposed by the Respondent who filed his reply to the application on 28.11.1986. Vide order dated 9.3.1987 the learned Rent Controller dismissed the application of the Petitioner. Aggrieved against the same, he has filed the present revision petition.

I have heard the learned Counsel for the parties. The first proviso to Clause (i) of Section 13(2) of the Act lays down that if the tenant, within a period of 15 days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest to be calculated by the Controller, at eight per centum per annum on such arrears together with such costs of the application, if any, as may be allowed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time stipulated by the principal provision of Section 13(2)(i) ibid. It is not in dispute that on 21-10-1986 because of non-appearance of the Petitioner, the learned Rent Controller simply proceeded against him ex-parte. He did not assess either the costs to be deposited by him along with the rent nor did he calculate the interest at the rate of eight per centum per annum on the arrears of rent In view of the dictum of the final Court in Sham Lal v. Atma Nand Jain Sabha (Regd ). Ludhiana (1987) 91 P. L. R. 1, since the costs and interest were not assessed or calculated on 21-10-1986, it cannot be termed as the first date of hearing within the meaning of proviso to Section 13(2) (i) of the Act.

The question, therefore, is whether the order of the learned Rent Controller proceeding against him ex-parte on 21-10-1986 could be of any legal consequence. In my view, the learned Rent Controller took the proceedings as if they were in a suit in accordance with the procedure laid down by the Code of Civil Procedure. Non-appearance of the Defendant on the date fixed entails proceedings to be taken ex-parte against him. However, Section 13(2)(i) and the first proviso thereto contains a beneficial provision which has to be interpreted in favour of the tenant so as to save him from any action in which on mere technical grounds he might be evicted from the premises. As laid down in Sham Lal''s case (supra), before the tenant is expected to tender or deposit the rent, the Rent Controller is to assess the costs and according to the aforesaid proviso to Section 13(2)(i) of the Act he is also to calculate the interest. If that is not done on the date fixed, it cannot be created as the first hearing nor can the period of 15 days be calculated from the said date. It has not been disputed before me that till today the costs have not been assessed nor the interest has been calculated by the learned Rent Controller. The proceedings taken against the Petitioner-ex-parte are, therefore, of no legal consequence.

It may be noted that when this revision petition came up for motion hearing J.V. Gupta, J. on 23.3.1987 the Petitioner was directed to deposit the rent as claimed in the ejectment petition along with 12% interest within a fortnight. The Petitioner complied with that order. As noted in the order dated 15.4.1987 of J.V. Gupta, J. he deposited a sum of Rs. 2842/- as arrears of rent from (sic).8.1983 to 31.7.1986 with interest at the above rate on 25.3.1987. I am, therefore, of the considered view that the Petitioner ought not to be penalised for non-appearance in the Court of the learned Rent Controller on 21.10.1986. The ex-parte proceedings taken against him deserve to be set aside.

Consequently, I allow this revision petition and set aside the order dated 9.3.1987 passed by the learned Rent Controller. The parties are, however, left to bear their own costs.

The parties, through their counsel are directed to appear before the Rent Controller on 24.11.1988 when further proceedings shall be taken in accordance with law.