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C. Mohideen Kutty Vs. A.S. Shaik Mohamed Maricar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1960)2MLJ68
AppellantC. Mohideen Kutty
RespondentA.S. Shaik Mohamed Maricar
Excerpt:
.....is an ex parte order with reference to which the rules framed under the act, rule 9(3) for setting aside the ex parte order will..........for default in the payment of rent.2. an application, h.r.c. no. 4832 of 1958, before the house rent controller madras, was filed by the landlord, for evicting the tenant, alleging default in the payment of rent from july, 1958 to november, 1958. under the provisions of section 7-a of the rent control act (act xxv of 1949) arrears of rent have to be deposited before the tenant can contest the application. it appears that on 16th january 1959, the rent controller passed an order granting time for further payment the tenant having on that date, issued a cheque in favour of the landlord for rs. 1,100 on the nedungadi bank. on 26th february, 1959, the date to which 'the proceedings were adjourned, the following order was passed:respondent called twice, absent. cheque was dishonoured......
Judgment:

1. This Civil Revision Petition arises out of proceedings between the landlord and tenant, initiated by the landlord to evict the tenant, for default in the payment of rent.

2. An application, H.R.C. No. 4832 of 1958, before the House Rent Controller Madras, was filed by the landlord, for evicting the tenant, alleging default in the payment of rent from July, 1958 to November, 1958. Under the provisions of Section 7-A of the Rent Control Act (Act XXV of 1949) arrears of rent have to be deposited before the tenant can contest the application. It appears that on 16th January 1959, the Rent Controller passed an order granting time for further payment the tenant having on that date, issued a cheque in favour of the landlord for Rs. 1,100 on the Nedungadi Bank. On 26th February, 1959, the date to which 'the proceedings were adjourned, the following order was passed:

Respondent called twice, absent. Cheque was dishonoured. Arrears not paid as undertaken. Further proceedings stopped under Section 7-A (4) of the Act and eviction is ordered.

3. The aggrieved tenant filed LA. No. 225 of 1959 praying that the order passed against him on 26th February, 1959, be set aside on the ground that he could not be present in time on that date when the case was called. This application was resisted but eventually the Rent Controller by his order, dated 1st May, 1959, held in effect that there was sufficient cause for non-appearance and allowed the petition by setting aside the order, dated 26th February, 1959.

4. The landlord filed an appeal, H.R.A. No. 165 of 1959, in the Court of Small Causes at Madras challenging the correctness of the decision of the Rent Controller, setting aside the order, dated 26th February, 1959.

5. On behalf of the landlord, two contentions were urged namely that the application filed before the Rent Controller by the tenant to set aside the ex parte order dated 26th February, 1959, was not competent, and, secondly, that the Rent Controller having failed to record a finding that there was sufficient cause for non-appearance by the tenant on that date, his order setting aside the ex parte order was erroneous. The Appellate Authority accepted both the contentions and accordingly allowed the appeal and dismissed the application by the tenant for setting aside the ex parte order, dated 26th February, 1959. The tenant has now preferred the above Civil Revision Petition.

6. learned Counsel, Mr. P. Venkataswami, appearing for the tenant contended that the application before the Rent Controller was competent and that the order of the Appellate Authority holding that sufficient cause was not made out by the tenant for his non-appearance on 26th February, 1959, was erroneous and unsustainable.

7. Mr. S.K.L. Ratan appearing for the respondent, strenuously contended that in view of the specific provisions of Section 7-A (4) and the scheme of the Act, an application for setting aside the alleged ex parte order, dated 26th February, 1959, was not sustainable in law. His contention is that on the facts of the present case there was no dispute by the tenant regarding the arrears of rent payable and that once the tenant defaulted to deposit or pay the admitted arrears, the Rent Controller had necessarily to exercise his statutory jurisdiction under Section 7-A (4) stopping all further proceedings within the meaning of the Sub-section. He further contended that the order though, dated 26th February, 1959 must, in effect, be deemed to have been passed on 16th January, 1959, the date on which, admittedly the tenant was present and was also heard. I am unable to agree with this contention. In terms the order, dated 26th February, 1959 is, what may be called, an ex parte order, i.e., an order passed behind the back of the tenant. The question whether the tenant had anything to say on that date or could say anything cannot alter the nature of the order passed by the Rent Controller on 26th February, 1959. The proceedings before the Rent Controller even under Section 7-A (4) are certainly of a judicial nature and at every stage subject to the provisions of the Act, the parties, have to be heard and orders passed. On 26th February, 1959, if the tenant had appeared, it may be that he could have pleaded for extension of time. It is of course open to the Controller to grant or refuse time. Therefore, I am clearly of the opinion that the order, dated 26th February, 1959, is an ex parte order with reference to which the Rules framed under the Act, Rule 9(3) for setting aside the ex parte order will apply. I hold that the application filed by the tenant was competent and sustainable in law.

8. The next question to be considered is whether the Court of Small Causes, the Appellate Authority was right, in setting aside the order of the Rent Controller who had set aside the ex parte order, dated 26th February, 1959. The Court of Small Causes has taken the view that there is no specific finding recorded by the Rent Controller whether or not there was sufficient cause for the non-appearance of the tenant. I do not think that that comment can be justified. The order of the Rent Controller read as a whole discloses that in its opinion the tenant had made out sufficient cause for non-appearance. The Court of Small Causes has examined the merits of the plea raised by the tenant for not being present in Court on 26th February, 1959. The case of the tenant was that he had attended a marriage on the date of hearing, namely, 26th February, 1959, and some delay was occasioned in reaching the Court. It however appears that even in the course of the same day, 26th February, 1959, the Advocate of the tenant represented to the Rent Controller that some unfortunate delay had occurred. Of course, the Rent Controller could not have done anything on that date unless he was moved to set aside the ex parte order. Parties are not to be penalised for not being present in Court at the precise time when the case is called provided, of course, they are not deliberate or wilful in their conduct. The reason adduced on behalf of the tenant was nothing extraordinary and the Rent Controller presumably did accept that reason as being true and sufficient for his non-appearance on that date. There is no warrant on the part of the Appellate Authority to interfere with the exercise of such discretion on the part of the Rent Controller, for little or no reason whatsoever.

9. In the result the Civil Revision Petition is allowed, the order of the Court of Small Causes, dated nth December, 1959 made in H.R.A. No. 165 of 1959 is set aside and the order of the Rent Controller, dated 1st May, 1959, is restored. There will, however, be no order as to costs throughout.


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