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J.K. Chowdhury Vs. Ashis Benerji - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 979 of 1980
Judge
Reported inAIR1981P& H51
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 and 151 - Order 9, Rule 13 - Order 41, Rule 5(3)
AppellantJ.K. Chowdhury
RespondentAshis Benerji
Cases ReferredNaurang Singh v. Teja Singh
Excerpt:
.....possession of the house and rs. 3. learned counsel for the plaintiff petitioner, however, pointed out that the lower court ignored the fact that the imposition of condition was being sought in the execution proceedings taken out by the plaintiff thus it failed to exercise jurisdiction vested in it......ill on 2nd december, 1979, and that he recovered on the following 10th.the court set aside the ex parte proceedings against him a,nd fixed 7th january 1980 to enable the defendant to file written statement.on 7th january, 1980 again the defendant absented himself. the court then adjourned the proceedings to 15th january,1980 for ex parte evidence. after recording the same the court on 15th january, 1980 ordered the defendant to put the plaintiff in possession of the house and to pay rs. 21,000/- as arrears of rent and rs. 6942.75 as costs. on 13th february, 1980 the plaintiff took out execution proceedings, during the pendency thereof the defendant filed application under order 9, rule 13 read with section 151 civil p.c. for setting aside the ex parte decree. the said application under.....
Judgment:
ORDER

1. Facts giving rise to this revision petition under Section 115, Civil P. C. are that the plaintiff -petitioner gave the house in question on lease to the defendant at a monthly rent of Rs. 1750/- from 16th September, 1977 and for a period of eleven months. A lease deed was accordingly executed. After 15th August, 1978, the defendant stopped payment of rent. The cheques issued by him bounced once or twice. The plaintiff then served notice on the defendant calling upon him to vacate the house within three months. Upon the failure of the defendant to vacate the house,the plaintiff instituted a suit on 3rd /4th October, 1979, claiming possession of the house and Rs. 21,000/- as arrears of rent. The defendant though served, did not put in appearance in the court of the Senior Sub-Judge Gurgaon, on 3rd December, 1979.Hence, the case was adjourned to the following 17th for recording ex parte evidence. In the meantime the defendant on 13th December, 1979, put in an application under Order 9, Rule 13 read with Section 151, Civil P.C. for setting aside the order on the ground that he had fallen ill on 2nd December, 1979, and that he recovered on the following 10th.The court set aside the ex parte proceedings against him a,nd fixed 7th January 1980 to enable the defendant to file written statement.On 7th January, 1980 again the defendant absented himself. The court then adjourned the proceedings to 15th January,1980 for ex parte evidence. After recording the same the court on 15th January, 1980 ordered the defendant to put the plaintiff in possession of the house and to pay Rs. 21,000/- as arrears of rent and Rs. 6942.75 as costs. On 13th February, 1980 the plaintiff took out execution proceedings, During the pendency thereof the defendant filed application under Order 9, Rule 13 read with Section 151 Civil P.C. for setting aside the ex parte decree. The said application under Section 5 of the Limitation Act for condoning the delay there of.Another application under Section 151 Civil, P.C. for the stay of the execution of the ex parte decree was made. The court stayed the execution proceedings unconditionally, despite the plaintiffs request for the imposition thereof.

2. The facts detailed above would show that before the Senior Sub-Judge, two matters were pressed by the defendant : (1) Application under Order 9, Rule 13,civil P. C. accompanied by an application under Section 5 of the Limitation Act, for setting aside the ex parte decree passed on 15th January, 1980 and (2) Application under Section 151, Civil P. C. for staying the execution of the said ex parte decree. It need hardly be said that these are two distinct matters. So far as Order 9 Rule 13, Civil P. C. is concerned the relevant part reads:--

'In any case in which a decree is passed ex parte against a defendant, he may apply to the court which the decree was passed for an order to set it aside;. .... the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or othere wise as it thinks fit, and shall appoint a day for proceeding with the suit.'

As is clear from the terms of Order 9, Rule 13, the question of imposition of terms as to costs etc. Will arise when the court makes an order setting aside the ex parte decree. Numerous rulings supporting this view have been cited before me. Relying on the term so the above said provision, it has been held that the condition envisaged therein cannot be imposed before setting aside the ex parte decree. There is no quarrel with this proposition.

3. Learned counsel for the plaintiff petitioner, however, pointed out that the lower court ignored the fact that the imposition of condition was being sought in the execution proceedings taken out by the plaintiff thus it failed to exercise jurisdiction vested in it. The Court allowed the request of the defendant in his application under Section 151, Civil P. C. that pending the decision of his application under Order 9, Rule 13 Civil P. C. that pending the decision of his application under Order 9, Rule 13, Civil P.C., the execution proceedings be stayed. It is in this situation that the plaintiff claimed that the stay of execution of the decree should be on certain terms. If in the exercise of its inherent powers, the lower court stayed the execution of the ex parte decree, argued the learned counsel, one fails to see what prevented it from imposing condition in the exercise of the said power. It was further urged that after setting aside the ex-parte decree, condition can be imposed under Order 9, Rule 13, Civil P.c. but it was not understandable how the same can be denied during the subsistence of the decree. Instances are not wanting where the Civil P.C. Provides for relief before judgment, for example, attachment of property and appointment of receiver. Moreover, analogy was drawn from the legislation governing the relationship of landlord and tenant wherein on the very first hearing the tenant is under an obligation to deposit the arrears of rent, failing which he suffers eviction. Learned counsel for the defendant was unable to show that the provisions of Order 9, Rule 13, Civil P.C., could operate as a bar to the claim of the plaintiff regarding imposition of condition. All the same he contended that the lower Court having not exercised jurisdiction in this regard, the case beremaded. Lengthy arguments have been addressed before me by the learned counsel for the parties on all the aspect of the case. That being so, I decline to accept the contention of the learned counsel for the defendant.

4. Coming now to the imposition of condition, learned counsel for the plaintiff-petitioner urged that prima facie the defendant was adopting dilatory tactics. Support was sought from the above mentioned facts that on the first date of hering, the defendant, despite service of notice of the suit, did not put I appearance. The trial court fixed 17th December, 1979, for recording ex parte evidence. In the meantime on 13th December, 1979, the defendant put in an application under order 9, Rule 13, Civil P.c. on the ground of illness for setting aside ex parte proceedings. His request was conceded to and 7th January, 1980, was fixed for his written statement, but he again absented himself. For ex parte proceedings, the case was adjourned to 15th January, 1980, and on that date ex parte decree was passed in accordance with law. It was long thereafter i.e., beyond the period of limitation, that the defendant applied under Order 9, Rule 13 Civil P. C. for setting aside the ex parte decree and also got the execution there of stayed. I may mention here that the narration of these facts has nothing to do with the merits of the defendant's case in getting the ex parte decree set aside. It need hardly, be said tat the Court would decide this matter after giving reasonable opportunities to both the parties and the question whether the defendant was prevented by a sufficient cause from appearing in Court, is yet to be decided.

5. All the same, learned counsel for the plaintiff contended that firstly the defendant's application under Order 9, Rule 13, Civil P.C., is to be decided, This by itself is likely to take quite long. In case the decision be in favour of the defendant, the Court will proceed with the suit, wherein not even the written statement has been filed so far. In the nature of things, it appears to be a log-drawn litigation between the plaintiff-landlord and the defendant, who is said to be his tenant. Just before the filing of the suit on 3rd October, 1979, an amount of Rs. 21, 000/- had accrued as arrears of rent. Thereafter, not a penny so far has been paid by the defendant to the plaintiff. The slow pace at which this litigation is going on, the plaintiff interest will be completely ruined and he is already suffering a irreparable loss. In order to avoid such a situation, urged, the learned counsel, the Court in he exercise of its inherent jurisdiction even goes to the extent of granting relief not provided for in the Code of Civil Procedure. Reference in this regard was made to Naurang Singh v. Teja Singh, (1976) 78 Pun LR 96, wherein execution of a decree for possession was stayed by the Court under Order 41, Rule 5(3), Civil P.C., but under Section 151, the judgment -debtor was directed to furnish the security for mesne profits a thing which was beyond the scope of the suit. In order to further show that the imposition of conditions on the defendant at this stage was necessary in the interest of justice, learned counsel for the plaintiff expressed doubts as to the soundness of the financial position of the defendant, inasmuch as the cheques given by him to discharge his liability of payment of rent, before the filing of the suit, were dishonoured. Finding merit in the contention of the learned counsel for the plaintiff, I direct that the stay of the execution proceedings, as ordered by the lower Court, shall be on the following conditions:--

(1) The defendant to deposit the entire arrears of rent amounting to Rupees 21,000/- on or before 15th September, 1980 in the Executing court;

(2) The defendant to further deposit in Court rent at the rate of Rs. 1,750/- per month for the period from 1st October, 1979 to 30th September, 1980, on or before 15th September, 1980.

(3) During the pendency of the proceedings under Order 9, Rule 13, Civil P.C., the defendant shall regularly deposit the rent in court in the first week of every month, for example, for the month of October, 1980, he shall deposit the same on or before 7th October, 1980.

6. The revision petition is allowed accordingly and the impugned order is set aside with costs.

7. Before parting with this judgment, it may be clarified than the condition above said shall operate till the conclusion of the proceedings under Order 9, Rule 13, Civil P.C. In case the same conclude in favour of the defendant, it shall be open to the lower Court to decide the question as to the imposition of condition in accordance with law.

8. Petition allowed.


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