CR No.6207 of 2008 - 1 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.6207 of 2008 (O&M) DATE OF DECISION: 01.12.2009 **** Smt. Pritam Kaur . . . . Petitioner VS. Smt. Rama Behal and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. R.S. Bajaj, Advocate for the petitioner Mr. Puneet Jindal, Advocate for respondents **** SURYA KANT J.(ORAL) (1). This revision petition is directed against the order dated 11.08.2008 passed by the Rent Controller, Jalandhar, whereby, on an application under Order 9 Rule 8 CPC moved by the petitioner/NRI-landlords for restoration of their eviction petition which was dismissed in default on 08.01.2007, has also been dismissed. (2). The petitioner filed an eviction petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as ‘Act’), wherein, the respondent- tenants applied and were granted leave to contest the same. It appears that the eviction petition was adjourned to 12th December, 2006. Since the Presiding Officer had decided to take leave on that day, the case was taken up on 11th December, 2006 and adjourned to 08.01.2007. CR No.6207 of 2008 - 2 - (3). The petitioner-landlady along with her husband (pro forma respondent No.10) had come from England and they went back on 23rd December, 2006 as per their itinerary. The eviction petition was unfortunately dismissed in default on 08.01.2007. It was on 23.04.2007 only that they came to know regarding dismissal of their eviction petition in default and immediately they filed an application under Order 9 Rule 8 CPC on 01.05.2007 for the restoration thereof, which has also been dismissed by the learned Rent Controller vide the impugned order dated 11.08.2008, giving rise to the present revision petition. (4). Notice of motion was issued and pursuant thereto counsel for the petitioners as well as the counsel representing most of the respondent-tenants have been heard at some length and the impugned orders perused. (5). It is true that the first petitioner/NRI-landlady or her husband, namely, pro forma respondent No.10 did not appear and depose in support of the application for restoration rather their Attorney, namely, Gurmit Kaur Saroya (sister of the petitioner) entered in the witness box as AW1 to explain the circumstances which led to the dismissal of the eviction application in default. While taking exception to the fact that the petitioner herself did not come forward in support of the application for restoration, the ld. Rent Controller has failed to consider the explanation given by the petitioner that on account of her ailment she had to go back to England and she being CR No.6207 of 2008 - 3 - old could not travel alone and, therefore, her husband also had to accompany her. (6). In my considered view, the non-appearance of the petitioner or her husband to depose in favour of the application for restoration, can neither be termed as a ‘willful’ default nor an act of negligence, rather it was beyond their control. In the Special Power of Attorney executed by the petitioner in favour of her sister, namely, Gurmeet Kaur Saroya, it is specifically recited that the petitioner was required to go back to England for medical check-up and in these circumstances she had appointed her sister (Gurmeet Kaur Saroya) to take necessary steps for restoration of the eviction petition. (7). Be that as it may, the Court’s predominant endeavour should be to decide the lis on merits instead of consigning it on hyper-technicalities. The delay in disposal of the eviction petition, if any, is prejudicial to the interest of the petitioner only and not the respondent-tenants who, at the best, can be suitably be compensated with costs from some harassment faced by them. (8). For the reasons afore-stated and in the interest of justice, the revision petition is allowed; the impugned order dated 11.08.2008 is hereby set aside and the application under Order 9 Rule 8 CPC moved by the petitioner and pro forma respondent No.10 is allowed and the eviction petition filed under Section 13-B of the Act is ordered to be restored. The Rent Controller, Jalandhar shall proceed and decide CR No.6207 of 2008 - 4 - the same on merits, however, after issuing notice to those tenants also who have remained unrepresented. The petitioner shall also be liable to pay the costs of Rs.1000/- each to the tenants i.e. a total of Rs.9000/-. (9). Dasti. (SURYA KANT) JUDGE 01.12.2009 vishal shonkar