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T.P. Venkatachary Vs. M.N. Parthasarathy - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1980)2MLJ243
AppellantT.P. Venkatachary
RespondentM.N. Parthasarathy
Excerpt:
- .....1978, allowing h.r.a. no. 319 of 1978 filed by the respondent herein against the order of the rent controller, dated 31st march, 1978 made in m.p. no. 166 of 1978.2. an ex parte order of eviction was passed! against the respondent herein by the rent controller on 12th september, 1975. on 3rd november, 1977, the respondent herein filed a petition for setting aside the ex parte order of eviction. in that petition, he stated that on 11th september, 1975 an agreement was entered into between him and the petitioner herein, under which he agreed to pay an enhanced rent and pay the arrears of rents and the petitioner in his turn agreed to withdraw the eviction petition, and that was the reason why he did not appear in the rent control petition, and he learnt only on 10th october, 1977 that.....
Judgment:
ORDER

M.M. Ismail, J.

1. This is a petition to revise the order of the Appellate Authority functioning under Tamil Nadu Act XVIII of 1960, dated 21st December, 1978, allowing H.R.A. No. 319 of 1978 filed by the respondent herein against the order of the Rent Controller, dated 31st March, 1978 made in M.P. No. 166 of 1978.

2. An ex parte order of eviction was passed! against the respondent herein by the Rent Controller on 12th September, 1975. On 3rd November, 1977, the respondent herein filed a petition for setting aside the ex parte order of eviction. In that petition, he stated that on 11th September, 1975 an agreement was entered into between him and the petitioner herein, under which he agreed to pay an enhanced rent and pay the arrears of rents and the petitioner in his turn agreed to withdraw the eviction petition, and that was the reason why he did not appear in the rent control petition, and he learnt only on 10th October, 1977 that contrary to the undertaking given by the petitioner he pursued the rent control petition and obtained an ex parte order of eviction on 12th September, 1975. Thus, putting forward the ground that only on 10th October, 1977, he had knowledge of the passing of the ex parte order of eviction, he filed the petition on 3rd November, 1977. When the office of the Rent Controller returned the petition to show as to how the petition was in time, he filed another petition, numbered as M.P. No. 168 of 1978, purporting to be under Section 5 of the Limitation Act, requesting the Rent Controller to excuse the delay if for any reason the Rent Controller came to the conclusion that there was delay in filing the petition to set aside the ex parte order of eviction. The Rent Controller, by his order, dated 31st March, 1978, dismissed M.P. No. 168 of 1978, holding that Section 5 of the Limitation Act will have no application, and equally dismissed M.P. No. 166 of 1978 stating that the reason set out by the respondent that he became aware of the ex parte order of eviction only on 10th October, 1977 was not sufficient since the summons in the petition had been received by him, and since the petition to excuse the delay in filing the petition to set aside the ex parte order of eviction had been dismissed, this petition also had to be dismissed .

3. Thereafter the respondent herein filed! H.R.A. No. 319 of 1978 against the order in M.P. No. 166 of 1978. The Appellate Authority, by the impugned order, accepted the case of the respondent herein and allowed his appeal and set aside the ex parte order of eviction passed by the Rent Controller and directed the Rent Controller to restore H.R. C. No. 651 of 1975 to file and dispose it of according to law. It is as against this order of the Appellate Authority that the present revision has been filed.

4. At the outset, the learned Counsel for the petitioner contended that the respondent herein having filed an independent petition under Section 5 of the Limitation Act in M.P. No. 168 of 1978 and that petition having been dismissed, without taking up the order in appeal, he could not have preferred an appeal only against the order in M.P. No. 166 of 1978, and that the Appellate Authority had no jurisdiction to allow that appeal and set aside the ex parte order of eviction. I am of the view that this argument is misconceived having regard to the provisions contained in Rule 12(3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974.

Rule 12(3) of the Rules states:

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 satisfied 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.

Thus, it is seen that Rule 12(3) is a self-contained provision with regard to filing of application for setting aside an ex parte order both with regard to the forum in which the application should be filed and also with regard to the time within which such an application should be filed. Rule 12(3) does not contemplate two independent applications being filed, one for excusing delay and the other for setting aside the ex parte order. Consequently, in the circumstances of the case, M. P. No. 168 of 1978 filed by the respondent was wholly unnecessary not contemplated by the Rules and therefore any order passed by the Rent Controller on such a petition cannot hurt the respondent herein. Under these circumstances, I overrule the initial objection taken by the learned Counsel for the petitioner.

5. Then, the next question is concerned with the merits of the order of the Appellate Authority allowing the appeal and setting aside the ex parte order and directing the restoration of H.R.C. No. 651 of 1975 to file and disposal thereof in accordance with law. In this case, the Rent Controller himself has not gone into the merits while dismissing the petition to set aside the ex parte order, and he summarily dismissed it on the ground that it was filed beyond time. On the other hand, the Appellate Authority had gone into the merits. As I pointed out already, the case of the respondent was that on 11th September, 1975, there was an agreement between the parties under which he agreed to pay a higher rate of rent and to pay the arrears of rent and the petitioner herein undertook to withdraw H. R. C. No. 651 of 1975. The question the Appellate Authority had to consider was whether this case of the respondent was true or false. In support of his case, the respondent produced Exhibit P-1, a receipt dated 11th September, 1975 itself, under which he had paid certain amounts to the petitioner, and the petitioner had received the same. He also produced Exhibit B-3 series, receipts for payments of rent for the subsequent period. Having regard to the conduct of the parties in paying and receiving amounts when the rent control petition was pending, the Appellate Authority came to the conclusion that the agreement alleged by the respondent must be true. Having regard to the facts available and the evidence placed before the Court, I cannot hold that the Appellate Authority committed an error in coming to the conclusion that the agreement pleaded by the respondent herein must be true. Once the agreement pleaded by the respondent is found to be true, naturally he was prevented by sufficient cause from appearing in Court when the case was called on 12th September, 1975, and, therefore, the ex parte order had necessarily to be set aside.

6. It should not be forgotten that there was one other circumstances on which the Appellate Authority relied. As I pointed out already, the ex parte order was passed on 12th September, 1975, and for a period of two years thereafter the petitioner herein did not take any steps to put that order into execution, which was unusual on the part of any landlord who obtained an order of eviction against the tenant. That circumstance certainly probabilities the case of the tenant that there was an agreement between the parties on 11th September, 1975 and the conduct of the petitioner, on 12th September, 1975 constituted a betrayal of the confidence reposed in him by the respondent as a result of the said agreement.

7. In these circumstances the civil revision petition fails and is dismissed. There will be no order as to costs.


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