1. This is landlord's petition whose ejectment application has been dismissed by both the authorities below.
2. The Rent Controller dismissed the ejectment application vide its order dt. 16th April, 1984 as the landlord failed to pay the costs of Rs. 50/- which were awarded vide order dt 6th Jan. 1984 for adjournment to 16th April, 1984 for producing the remaining evidence of the landlord. It has been stated in the said order that the learned counsel for the landlord made a statement closing his evidence and contended that since the petitioners had not been present, he is not going to pay costs. According to the learned Rent Controller non-payment of costs shall result in precluding the landlord from prosecuting his case any further and as a result thereof the petition was dismissed. Dissatisfied with the same, the landlord filed an appeal. The appellate authority relying upon a Full Bench Judgment of this Court reported as Anand Parkash v. Bharat Bhushn Rai, (1981) 83 Pun LR 555: (AIR 1981 Punj & Har 269) dismissed the appeal. Dissatisfied with the same, the landlord has filed this petition in this Court.
3. The learned counsel for the petitioners contended that the view taken in the earlier Full Bench Judgment reported in Anand Parkash's case (supra) was explained in the later Full Bench Judgment report as Prem Sagar v. Phul Chand, (1983) 85 Pun LR 797: (AIR 1983 Punj & Har 385). It was held held therein that on an over all view of the whole S. 35-B, the resultant effect of the default on the date next following the date of the order of payment of costs the issue having been expressly raised would be that thereafter the defaulting party can no longer be permitted to add anything to its case. The same consequently would have to be decided on the limited material and evidence existing on the record in favour of such a party. The section does not in terms prescribe that either the suit must be dismissed or that the defence bestruck down as a whole. Thus, argued the learned counsel, in view of the said Full Bench Judgment, the ejectment application could not be dismissed by the Rent controller and should have been decided on the basis of the material already on the record. On the other hand, the learned counsel for the tenant submitted that the order passed by the authorities below does not debar the landlord to file fresh ejectment application and therefore, there is no justification for setting aside the impugned order.
4. After hearing the learned counsel for the parties, I am of the considered view that in view of the observations made in the latter Full Bench Judgment reported as Prem Sagar's case (supra) reproduced above, the learned Rent Controller should not have dismissed the ejectment application and rather should have decided the ejectment application on the basis of the material already on the record. It may be that this dismissal does not debar the landlord to file a fresh ejectment application but some evidence was led by the landlord and according to him that evidence is sufficient to support his case. Under the circumstances the petition succeeds, the impugned order is thus set aside and the case is sent back to the Rent Controller for decision on merits on the basis of the material already on the record. It is made clear that the landlord will not be entitled to lead any further evidence. Of course, the tenant will be entitled to lead any evidence in case he has not closed the same earlier. The parties have been directed to appeal before the Rent Controller on 16th Aug 1985.
5. Petition allowed.