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Pushpa Mallick, Proprietor, Truplex Dry Cleaners Vs. Jammal Mohammed by Power Agent N.P. Sethu Sendadavan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ81
AppellantPushpa Mallick, Proprietor, Truplex Dry Cleaners
RespondentJammal Mohammed by Power Agent N.P. Sethu Sendadavan
Excerpt:
- .....m.p. no. 2111 of 1978 was filed by the tenant for setting aside the ex parte order of eviction passed on 5th august, 1978. this petition was allowed on payment of costs of rs. 100. the house rent control petition was restored to file and the same'was posted for final disposal in the special list on 13th september, 1979. on 13th september, 1979, the agent of the landlord was examined in chief as p.w. 1. at the request of the counsel for the tenant, the cross-examination of p.w. 1 was adjourned to 14th september, 1979. but the counsel did not come to the court though the application was passed over several times and finally it was adjourned till after lunch on 14th september, 1979. even after lunch on that day, there was no representation either by counsel for the tenant or.....
Judgment:
ORDER

P.R. Gokulakrishnan, O.C.J.

1. The tenant is the petitioner in this Civil Revision Petition. The landlord filed H.R.C. No. 934 of 1978 on the, file of the Rent Controller for evicting the petitioner herein on the ground of sub-letting. On 5th August, 1978, the case was posted for final hearing and when it was called on that day, neither the tenant, nor her counsel was present and since there was no representation, an ex parte order of eviction was passed on 5th August, 1978. Subsequently, M.P. No. 2111 of 1978 was filed by the tenant for setting aside the ex parte order of eviction passed on 5th August, 1978. This petition was allowed on payment of costs of Rs. 100. The house rent control petition was restored to file and the same'was posted for final disposal in the special list on 13th September, 1979. On 13th September, 1979, the agent of the landlord was examined in chief as P.W. 1. At the request of the counsel for the tenant, the cross-examination of P.W. 1 was adjourned to 14th September, 1979. But the counsel did not come to the Court though the application was passed over several times and finally it was adjourned till after lunch on 14th September, 1979. Even after lunch on that day, there was no representation either by counsel for the tenant or the tenant herself, which compelled the Court below to pass an ex parte order of eviction at 3.30 P.M. on 14th September, 1979. It is to set aside this order of eviction passed ex parte, M.P. No. 313 of 1980 was filed. The learned Rent Controller after narrating the abovesaid facts, found that there are no merits in the petition and sufficient cause has not been shown by the tenant to set aside the order of eviction passed ex parte. Accordingly, the petition was dismissed. On appeal, the Appellate Authority after carefully going through the facts of the case completely concurred with the finding of the Rent Controller and held that there is no sufficient cause to set aside the ex parte order. It also found that the tenant has filed the application for setting aside the ex parte order of eviction in order to protract the proceedings, and as such there is no merit in the same. After deciding the case on facts, the appellate authority has also adverted to the affidavit filed by the brother to the tenant. The tenant admittedly was in the United States of America at the time of the hearing of the petition. She has neither given the power of attorney nor any written authority to anyone to conduct the case. In this connection, the Appellate Authority after referring to Rule 12 (3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974, which is as follows:

In any case in which an order is passed ex parte against a tenant or a landlord or any order of dismissal for default is passed by the Controller, then the party affected may, within thirty days from the date of the order or if he satisfies the Controller that he knew of the order only on a subsequent date, within thirty days from the date of such knowledge apply to the Controller by whom the ex parte order or the order of dismissal was passed, for an order to set it aside, and if he satisfies the Controller that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing or that such default was occasioned due to circumstances beyond his control, the Controller shall make an order setting aside the ex parte order or the order of dismissal passed, as the case may be, upon such terms as to costs as the Controller thinks fit and shall appoint a day for proceeding with the application,

Observed that neither power-of-attorney nor written authority has been given to the deponent to the affidavit filed in support of the petition to set aside the ex parte order, though the deponent was no other than the brother of the tenant and therefore, he has no legal competency to file an affidavit or maintain the petition for setting aside the ex parte order on behalf of the tenant. No doubt the Court is vested with the power to consider the representation in respect of matters pending before it orally also. The Court in its discretion can decide whether any sufficient cause has been shown for allowing the matter to be decided ex parte. To construe that it is only the party affected can file an affidavit is too wide a proposition. Nevertheless the bona fides of the petitioner herein in genuinely prosecuting the case can be judged' from the fact that a person who neither holds a power-of-attorney nor has the written authority has filed an affidavit on behalf of the tenant, who is in the United States of America. The fact that it was only at the request of the counsel for the tenant, the cross-examination of P.W. 1 was adjourned to 14th September, 1981 on which date, the counsel did not appear, and allowed the matter to be decided ex parte, coupled with the fact that on the second occasion to set aside the ex parte order, an affidavit was filed by the brother of the tenant, which was rightly rejected by the Court below, would go to show that the petitioner herein was interested only in protracting the proceedings. It is unnecessary for me to decide in this civil revision petition as to whether the affidavit filed by the brother of the tenant who has neither power of attorney nor any authorisation to conduct the cause on behalf of the tenant is in order.

2. In view of the discussion made above, it has been factually made out that no sufficient (cause has been given by the tenant to set aside I the ex parte order and it is clear from the facts of the case that such a petition filed is only to protract the proceedings indefinitely.

3. Taking all these facts into consideration, 1 do not find any error of jurisdiction or any point of law as such involved in this revision for me to admit the same.

4. Consequently, the revision petition is dismissed.


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