Civil Revision No. 6214 of 2006 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 6214 of 2006 Date of Decision: 7.11.2008 Tilak Raj …Petitioner Versus Mrs. Usha Jindal and Others ... Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. S.K.Chopra, Advocate for the petitioner. None for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) Sukhdev Parshad, landlord, filed a petition for eviction of tenant Tilak Raj and Mangal Dass, from a shop situated at Suniar Bazaar, Janki Dass Street, Near Gandhi Ground, Samana. It was stated therein that the petitioners-tenants were inducted as tenants by Chajju Ram, father of Sukhdev Parshad on 23.2.1988, as the rate of rent settled at that time was Rs.500/- per month. On the ground that the rent has not been paid from 1.4.1996, eviction petition had been filed. Petitioner Tilak Raj was ordered to be proceeded against ex parte on 28.3.2000 , whereas Mangal Dass was proceeded against ex parte on 5.4.2000. During pendency of proceedings, Sukhdev Parshad died, Civil Revision No. 6214 of 2006 2 Usha Jindal and others were impleaded as legal representatives. In the ex parte evidence, landlord had examined two witnesses and the eviction petition was allowed on 22.10.2002. Thereafter, an application was filed on 20.2.2001 for setting the ex parte eviction order. Landlord made a statement that he has no objection in case application for setting aside ex parte order is allowed. The Court allowed the application and ex parte order was set aside subject to payment of cost of Rs.300/-. The cost was paid. It is stated that rent was tendered. After setting aside of ex parte proceedings, a number of opportunities were availed by the petitioner for filing written statement. Thereafter, nobody appeared for him and he was again proceeded against ex parte on 19.1.2000. Learned Rent Controller proceeded with ex parte evidence. After recording the evidence, learned Rent Controller recorded a finding that even though the tender of rent was made by the petitioner-tenant on 20.11.2001 and also paid the arrears of house tax but no interest thereon has been paid. It was further noticed that learned counsel for the petitioner-landlord accepted the rent under protest. Petitioner thereafter filed a Civil Revision No. 2146 of 2005 in this Court, which was disposed off on 26.7.2005. In the revision, it was noticed that two demand drafts amounting to Rs.37,120/- and Rs.10,100/- have been deposited in the name of Usha Jindal, landlady. Learned Rent Controller was directed by this Court to decide the application for setting aside the ex parte ejectment order. In pursuance of order passed by this Court (Annexure P3), learned Rent Controller proceeded to decide the application and formulated the following issues:- Civil Revision No. 6214 of 2006 3 1. Whether there are sufficient grounds for setting aside the ex parte judgment/order dated 22.10.2002? OPP 2. Whether the petition is within time? OPP 3. Whether the petition has been filed just to obstruct the execution proceedings as alleged? OPR 4. Relief. Petitioner appeared in the witness box and tendered into evidence his affidavit Ex.A1. Thereafter, his evidence was closed. On behalf of landlady, Kapil Jindal appeared as a witness and tendered his affidavit Ex.RW1/A. Learned Rent Controller after examining the evidence came to conclusion that Tilak Raj was not vigilant regarding litigation pending in the Court. It was further held that once the ex parte order was set aside, he stopped appearing in the Court. Therefore, on second time he was proceeded against ex parte and ejectment order was passed. No sufficient reason was found by learned Rent Controller to recall the order of ex parte ejectment order. Aggrieved against the same, Petitioners had filed an appeal. Learned Appellate Authority held as under:- “...The discussion clearly shows that applicant habitually absents from the Court. After he tendered the rent, ;he knew that a case is going on, but he absented and was proceeded against ex parte on 19.1.2002. Thereafter, for about one year and eight Civil Revision No. 6214 of 2006 4 months he remained silent and acted only when the Bailiff reached him. In cross-examination, the applicant has admitted that his counsel Sh. Inderjit Sharma is his friend and that clerk of Sh. Inderjit Singh is his real cousin. Therefore, it is not possible that applicant was not told about the proceedings. He intentionally absented from the proceedings not only once but twice. The earlier ex parte order was set aside and the applicant took the latitude to absent again. Now in order to defeat the execution of the decree, he has filed the present application much beyond the period of limitation. Hence, I do not find any ground to interfere in the findings recorded by the trial Court on issue No.1 and 2. Consequently, the appeal is found to be without any merits and is dismissed, with costs. Memo of costs be prepared and file be consigned to record room. Trial Court records be returned”. This Court had issued notice and a Co-ordinate Bench on 2.9.2008 noticed that respondent-landlady had been served but had not appeared nor represented through counsel and the respondents were ordered to be proceeded against ex parte. Two fold submissions have been made before me by Mr. S.K. Chopra, Advocate, appearing for the petitioner. He has stated that even he was proceeded against ex parte, as per Rakesh Wadhawan v. M/s Jagdamba Industrial Corporation 2002(1) Rent Control Civil Revision No. 6214 of 2006 5 Reporter 514, any deficiency in the tender can be made good later Therefore on this ground, ejectment could not be ordered. He has further stated that once the petitioner filed a revision petition and he was allowed to hand over the drafts to Usha Jindal, respondent No.1, one of the legal representative of the landlord, entire amount had been paid and therefore, ex parte order could not be sustained. He has further stated that fair play demands that the matter should have been determined on merits. Learned counsel has further relied upon Rafiq and Another v. Munshi Lal and Another AIR 1981 Supreme Court 1400 to say that once the counsel had been engaged by the petitioner and he would have posed confidence in him, learned Appellate Authority had committed a grave error to say that since the counsel was friend and Clerk of the counsel is a cousin of the petitioner, it was not possible that the petitioner was not told about the proceedings, therefore, heavy onus was cast upon the petitioner. He has further relied upon Malkiat Singh v. Joginder Singh 1998 AIR Supreme Court 258 and Rafiq's case (supra). Relying upon these judgments, learned counsel has stated that though the petitioner was not negligent as he had paid the entire amount of rent, therefore, it was incumbent upon learned trial Court to issue notice to the petitioner or to his counsel. Even though I find merit in these arguments of learned counsel, but it can be safely inferred that the petitioner was not vigilant and had taken the pendency of proceedings in the Court in a casual manner. Therefore, he has caused much agony to the landlady. Taking into consideration the need of fair play giving fair Civil Revision No. 6214 of 2006 6 opportunity and to balance the equities, it will be just in case the petitioner is burdened with heavy costs, and ex parte order is set aside. Accordingly, impugned orders (Annexures P3 and P5) are set aside. The petitioner shall cause appearance before learned Rent Controller on or before 1.12.2008. However, taking the whole conduct of the petitioner in view, he is burdened with cost of Rs.25,000/-. The cost shall be deposited on the first date of his appearance before learned Rent Controller on 1.12.2008 and shall be disbursed to the landlady after notice of appearance is issued to her. With these observations, the present revision petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge November 7, 2008 “DK”