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Diwalibai Damjibhai Bhatti and ors. Vs. Jaikumar Gopaldas JaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 823 of 1967
Judge
Reported inAIR1969Bom393; (1969)71BOMLR556; 1969MhLJ421
ActsCentral Provinces and Berar Letting of Houses and Rent Control Order, 1949; ;Code of Civil Procedure (CPC), 1908 - Order 9, Rule 13 - Order 23, Rule 3; Constitution of India - Articles 226 and 227
AppellantDiwalibai Damjibhai Bhatti and ors.
RespondentJaikumar Gopaldas JaIn and ors.
Appellant AdvocateR.S. Padhye, Adv.
Respondent AdvocateM.S. Choudhari, Adv.
Excerpt:
central provinces and berar letting of houses and rent control order, 1949. clause 13 - rent controller proceeding ex parte against tenant for non-appearance in proceedings under clause 13--when rent controller should set aside ex parte order--minor--proceedings against minor--minor to be properly represented before court--practice.;the power of the rent controller to proceed ex parte against the tenant who fails to appear in proceedings initiated by the landlord under clause 13 of the central provinces and berar letting of houses and rent control order, 1949, implies a duty on the part of the rent controller to set aside the ex parte order if the tenant satisfies him that there was good cause for non-appearance.;haji zakeria v. collector, yeotmal (1961) 64 bom. l.r. 483 : s.c. [1962]..........permission to terminate the tenancy of the premises under clause 13 (3) (i) and (ii) of the rent control, order. the proceedings seem to have protracted for a considerable time and were fixed for 27th january 1966. it may be mentioned that both parties were represented by their counsel before the rent controller. on 27th january 1966 the counsel of the opponents-landlords intimated to the court that damjibhai was dead. one sureshchandra it appears, was present in court on that date and he informed about damjibhai's death, he being the nephew of damjibhai the landlords counsel therefore wanted time to bring he legal representatives on record and case was adjourned to 2-2-1966. an application to bring on record the present petitioners was a granted and they were noticed for.....
Judgment:
ORDER

1. The petitioners in this case under Art, 227 of the Constitution are two windows of one Damjibhai and his two minor sons Liladhar and Champalal. They along with Damjibhai were occupying certain premises in Amravati town. The opponents are the landlords of those premises. /they filed an application on 2-12-1964 seeking permission to terminate the tenancy of the premises under Clause 13 (3) (I) and (ii) of the Rent Control, Order. The proceedings seem to have protracted for a considerable time and were fixed for 27th January 1966. It may be mentioned that both parties were represented by their counsel before the Rent Controller. On 27th January 1966 the counsel of the opponents-landlords intimated to the Court that Damjibhai was dead. One Sureshchandra it appears, was present in Court on that date and he informed about Damjibhai's death, he being the nephew of Damjibhai The landlords counsel therefore wanted time to bring he legal representatives on record and case was adjourned to 2-2-1966. An application to bring on record the present petitioners was a granted and they were noticed for appearance and evidence on 14-2-1966. On 14-2-1966, the petitioners were represented by an advocate who filed written statement and the case was adjourned to 23-2-1966 for evidence. On this date, neither the petitioners nor their foxed for evidence of the petitioners there being no appearance, the Court closed the case for orders on 28-2-1966. In other words, the Rent Controller decided to proceed ex parte against the petitioners on 28-2-1966. When none was present an order granting permission to the prejudice of the interest of the petitioners was passed.

2. On 28-3-1966, an application was filed on behalf of the petitioners to set aside the ex parte order dated 28-2-1966. in this application the petitioners averred in paragraph 3 that petitioners I and 2 were illiterate and simple ladies, that they are not accustomed to appear in public they being of Gujarathi community and are old and that the petitioners 3 and 4 were minors below 12 years and in these circumstances they did not consider it necessary to go to their counsel on 23-2-1966 as they thought that their counsel will do the needful, but in their absence and for want of their signature, their counsel could do anything in the case and the Court proceeded ex parte against them all and the case was posted to 28-2-1966 and the final order was passed. Under these circumstances, the petitioners prayed that they could not present themselves in court and the interest on minors was involved and therefore, the ex parte order should be set aside.

3. This application was vehemently opposed on behalf of the respondent landlords as is the case even in this Court. The position seems to be founded on law relating on decision of the Nagpur High Court reported in 1953 Nag LJ 211. it was contended that such an application for setting aside the ex parte order is not tenable under the law. This was by way of a preliminary objection raised on behalf of the landlords. I do not find any other objection on merits raised on behalf of the landlords at all.

4. The Rent Controller had fixed the case first on 24-5-1966 and again on 28-5-1966 on which heard and the case was fixed for orders. An order was passed rejecting the application on 6-6-1966. It may be noted that the Rent Controller did not consider it necessary to fix the case for making an enquiry and to allow parties to adduce evidence, at any rate, the petitioners to substantiate their application by evidence.

5. The Rent Controller rejected the application observing that the ruling cited on behalf of the landlords viz. 1953 Nag LJ 211 was application on all fours and was still good law. He also observed that even on merits, the petitioners having failed to make any appearance through advocated on 23-2-1966, the reasons given by the petitioners for their absence have hardly any justification and it s nothing but a case of negligence and law could not come to help such parties who are negligent; As regards the decision of this Court reported in : AIR1963Bom233 the Rent Controller observed that this ruling 'is altogether on different point and has no bearing to the facts of he instant case'. The application having been thus rejected both on merits as well as on the ground on tenability, the petitioners preferred an appeal before the Collector. The Resident Deputy Collector who heard and disposed of the appeal has also observed in paragraph 5 that he was not convinced that there was any good ground to interfere with the order of the Rent Controller who has given his reasons in detail. The appellate authority observed also that since final order has been passed, the appellants cannot ask for its setting aside on the ground that they could not appear on the date of hearing. The appellate authority has observed as follows:-

'There appears to be no need to set aside the ex parte order which has not been passed by the Court behind the back of the parties

The petitioners challenged these orders in this writ petition.

6. In my opinion, the Rent Control authorities have entirely missed to appreciate the principle on which this Court held that an application dismissed in default was liable to be inquired into and registered if the Rent Control authority was satisfied that there was good cause for non appearance. As pointed out by the Division Bench of this Court by which I am bound, the jurisdiction to dismiss an application for default of appearance or to proceed ex parte against a party who fails to enter appearance is implicit in the jurisdiction to entertain and adjudicate upon the claims made before it by the parties in proceedings under the Rent Control Order. This jurisdiction is not traceable to its inherent powers but is implicit in the power to dismiss to point out hat there is a co-ordinate power to proceed ex parte against a party who fails to appear, but this power to dismiss in default or to proceed ex parte also implies equally a duty to restore an application dismissed for default or to set aside ex parte order if the defaulting party satisfies the authority that there was good cause for non-appearance. This right and this duty is a sine qua non of judicial procedure. The authorities under the Rent Control Act are quasi judicial tribunals adjudicating upon civil rights of parties and this is a necessary rule of procedure that power should vest during the proceedings of the tribunal either to dismiss in default to appearance of party or to proceed ex parte against a defaulting party. I therefore, do not see how the Rent Controller could have failed to notice that he was bound by the 1962 Nag LJ 180 and apply the principle to the case before him. There is undoubtedly a decision taking a contrary view in Nagpur High Court but the Rent Control authorities in this State are bound by the decision of the High Court in this State.

7. There are two other glaring lacunae in the order of the authorities of which little notice seems to have been taken. It will be seen that the Rent Controller as well as the appellate authority purport to reject the application of the petitioners for setting aside the ex parte order on merits without giving any opportunity to the petitioners either to lead evidence or to place facts or material before the Court to show that there was a case for restoration. First two petitioners are ladies and they have stated in their application that they belong to Gujrathi community and ladies in their community and particularly, petitioners 1 and 2 themselves do not appear in public. There is hardly any reason not to accept this statement. The other two petitioners are minors probably their minority had been completely lost sight of by both the authorities. Judicial procedure does not contemplate proceedings against a minor litigant without securing his proper representation before the Court. If a guardian of a minor neglects the minor's interest by failure to appear, normally in Civil Court a guardian is required to be appointed for the purpose of the litigation by the Court. In my opinion, the same procedure must be followed in all judicial proceedings. I do not, therefore, see how some of the non-applicants before him being minors, the Rent Control authority could proceed ex parte against them without taking necessary steps to secure representation of the minors in any case. It will also be seen, that the fact that the contesting landlords had not made any statement regarding the grounds on which the petitioners claimed restoration and explained the reason for having allowed the proceedings to proceed ex parte against them, ought to be taken in consideration to find out what circumstances must have prevailed when the order came to be passed against the petitioners. Damaji had died only a few weeks back and his two widows and two minor children were brought on record as the non-applicants. They had engaged a lawyer. It does not appear from the record that they were negligent. On the date of hearing fixed immediately after the death of Damaji i.e. on 27-1-1966, his nephew was actually present in Court and informed the court that Damaji was dead. This conduct of one of the relations of the petitioners could certainly be relied upon to prove that the petitioners were trying to be as diligent as was possible in prosecuting the case. It is seriously suggested that there was nothing to prevent the two adult women to find out what the next date or what was required to be done. This appears to be a counsel of perfection. The two women who recently lost their husband may not find it easy to go out of the house according to the custom. It does not appear, there is any other elderly man in the family, the two minor children being under 12 years of age. Thus, the circumstances on record should have appeared patent enough to persuade the Rent Control authorities to take a reasonable view of the matter before rejecting the application for restoration either o the ground of tenability which view of the law is not supportable or on merits and that too without any inquiry or opportunity being given to the petitioners to substantiate their claim.

8. In my opinion, the orders of both the authorities under the Rent Control Order are vitiated by errors apparent on the face of the record. In my opinion, no useful purpose will be served by remanding the matter for making an enquiry in the case, and the interest of justice requires that the ex parte order granting permission to terminate the tenancy passed on 28-2-1966 should be set aside and accordingly it is se aside. The order in appeal is also set aside. The parties are directed to appear before the Rent Controller on 30th March 1969 and the proceedings shall be continued for the stage at which they were viz., by giving an opportunity for leading evidence to the petitioners. 30th of March 1969 is a date fixed only for appearance.

9. The result is, the petition is allowed. As the petition was opposed, the petitioners are entitled to their costs from the respondents. The records be sent back immediately.

10. Petition allowed.


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