Hari Kishan Dass vs Smt. Daljit Kaur and Others

J.V. Gupta, J.—The brief facts, giving rise to this revision petition are that the Petitioner, Harikishan Dass, landlord, filed an ejectment application before the Rent Controller on 11th August, 1982, against the Respondents for their ejectment from the demised premises Their ejectment there from was sought inter alia on the ground that the tenants had shifted to the village and the building, in question, was lying closed for about a year and, thus, they had ceased to occupy the same for a continuous period of more than four months without sufficient cause.

Surprisingly enough, the tenants could not be served for a longtime. Written statement was filed in December, 1983. In reply to the said allegation, in paragraph 2(b), the plea taken was that the allegation of the landlord that the tenants had shifted to the village and the house, in question, was lying closed for about a year and thus they had ceased to occupy the same for a continuous period of four months without sufficient cause was incorrect and baseless. The house, in question, was being used by them for residential purposes and that they were residing in the said house up till that day. There was no occasion to say that they had ceased to occupy the same. Replication dated 28th January, 1984, was filed on behalf of the landlord and the allegations made in paragraph 2(b) of the ejectment application were reiterated. On 23rd March, 1984, both the counsel for the parties made the following statement:

Both counsel for parties state that some counsel should be appointed as referee to report whether some one is residing in the house, in dispute, at present. If be will report that none is residing in the house, in dispute, ejectment order should be passed against the Respondent and if some one is residing in the house, then, petition should be treated as dismissed. Petitioner and Majit Singh, Respondent, both will visit the spot today along with the referee.

R.O. & A.C. Sd/-Manjit Singh; Sd/- Mohinderjit Singh, Advocate; Sd/- R.R. Gupta, Advocate ;

Sd/- Rent Controller, 23.3.84

In view of the said statement, the Rent Controller passed the following orders on 23rd March, 1984,-

One AW present but he is deferred. Both the counsel for parties made the statement that some referee should be appointed in order to report whether some one is residing in the house in dispute at present or not Sh. R.R. Sharma, Advocate, who is present in the Court is appointed as referee in this case and both the counsel for parties agreed that Sh. R.R. Sharma, Advocate, should be appointed as referee Referee will visit the spot today and will report whether some one is residing in the house, in dispute, at present or not He will give reasons in detail for his opinion His fee is assessed Rs. 150/-. Petitioner will bear the fee of the referee. Petitioner and Respondent Manjit Singh who is present in the Court will go along with referee on the spot today. Now to come up for report on 27.3 1984.

The said referee made his detailed report dated 23rd March, 1984, wherein it was concluded,-

In my opinion, keeping in view the circumstances and conditions prevailing in the disputed house at present the house, in question, is not being used for residing purposes for a long period.

On 27th March, 1984, the case was adjourned to 31st March, 1984, for filing objections, if any, to the said report of the referee Objections there to were filed by the tenant On 31st March, 1984, the ease was adjourned to 12th April, 1984, for reply, if any, and consideration. Thereafter the case went on being adjourned from time to time On 16th August, 1984, the Rent Controller framed the following issue:-

Whether the report of the local commissioner is liable to be set aside ? OPA Objector.

No evidence was led by the tenants on the said issue. The case was again got adjourned for arriving at a compromise from time to time. Ultimately, vide order dated 31st May, 1985, the Rent Controller adjourned the case to 31st August, 1985, for evidence of the Petitioner on payment of costs of Rs. 60/-. From the interim orders passed by the Rent Controller from time to time, it could not be pointed out as to how the order dated 31st May, 1985, passed by the Rent Controller was justified Meanwhile, the landlord filed the present petition under Article 227 of the Constitution on 29th April, 1985, challenging the order of the Rent Controller dated 16th August, 1985, directing the objector to adduce evidence on the issue framed by him.

The learned Counsel for the Petitioner contended that in view of the statement made by the counsel for the parties on March 23, 1984, before the Rent Controller, no objections, if any, were maintainable against the report of the referee. According to the learned Counsel, after the said report was made by the referee that no one was residing in the house, in dispute, the ejectment order should have been passed against the tenants by the Rent Controller on the basis of the said report and in view of the said statement of counsel for the parties. Thus, argued the learned Counsel, inviting the objections and allowing the parties to lead their evidence was uncalled for and the disposal of the ejectment application has been delayed unnecessarily by the tenants by using delaying tactics In support of the contentions, the learned Counsel relied upon Tulsi Dass v. Sonu Ram 1985 H.R.R. 407, Flerabel Skinner v. J.B.K. Ram Lila Mandal, Hissar AIR 1980 P&H. 284, Bishamber Dayal v. Kishan Chand (1983) 85 P.L.R. 300, and Joginder Singh v. Bahadur Singh 1978 (2) R.L.R. 708. According to the learned Counsel, since the conclusion of the referee that the house, in question, was not being used for residence for a long period, was a ground for ordering teh ejectment of the tenants therefrom as provided u/s 13 of the Haryana (Control of Rent and Eviction) Act, 1973, (hereinafter called the Act), the ejectment order should have been passed by the Rent Controller against them on the basis of the report of the referee itself. In support of the contention, the learned Counsel relied upon Shri Dayal v. Kewal Verma 1982 (1) R.L.R. 402. On the other hand, the learned Counsel for the tenants submitted that even if the report of the referee be accepted at its face value, no ejectment order could be passed on its basis unless a case thereto was made out u/s 13 of the Act. According to the learned Counsel, there is no finding by the referee in his report that the tenants ceased to occupy the building, in dispute, for a continuous period of more than four months without sufficient cause Thus, argued the learned Counsel, in the absence of any such finding by the referee therein no ejectment order could be passed against the tenants Therefore, the Rent Controller rightly directed the parties to lead their evidence on the issue framed. In support of the contention, the learned Counsel relied upon Jai Gopal v. Om Parkash (1969) 71 P.L.R. 680. The learned Counsel also contended that the petition under Article 227 of the Constitution was not maintainable and in any case, it suffered from laches and delay as the order passed as far back as August 16, 1984, was being challenged in this Court by filing this petition on April 29, 1985. In support of this contention reliance was placed by the learned Counsel on Kishan Swarup v. Kishan Dei 1972 R.C.R. 417.

I have heard the learned Counsel for the parties and have also gone through the case law cited at the bar.

The statement of the counsel for the parties dated March 23, 1984, is to be read with the allegations made in the ejectment application and the written statement filed by the tenants. Admittedly, in the ejectment application, the landlord did plead in paragraph 2(b) that the tenants had shifted to the village and the house, in question, was lying closed for about a year and that the tenants had ceased to occupy the same for a continuous period of four months without sufficient cause. The position taken by the tenants in the written statement in that behalf was that the said allegations were wrong and that the house, in question, was being used by them for residential purposes as they were residing therein till then. In view of these pleadings, the counsel for both the parties made the statement oh March 23, 1984, re-produced in the earlier part of this judgment. The retort of the referee is quite specific and it has been found therein that at present, the house, in question, is not being used for residence for a long period. Thus, the ground of ejectment alleged by the landlord was within the ambit of Section 13 of the Act The report of the referee was also to the same effect when read with the allegations made in the ejectment application and the written statement and the statement of the counsel for the parties made before the Rent Controller on March 23, 1984. In these circumstances, in view of the said report of the referee, there was no option for the Rent Controller but to pass the ejectment order forthwith. Allowing the parties to file objections, if any, to the said report of the referee was uncalled for. The report was made on March 23, 1984, and by delaying tactics adopted by the tenants, the proceedings have been delayed for such a long time. It is not disputed that Shri R.R. Sharma, Advocate, was appointed as a referee as contemplated u/s 20 of the Indian Evidence Act That being so, the question of filing any objections to the said report of the referee did not arise and if at all filed, were not warranted u/s 13 of the Act, it is one of the grounds of ejectment that the tenant is liable to be ejected if he has ceased to occupy the premises for a continuous period of four months without any sufficient cause As stated earlier, in view of the pleadings of the parties and the statement made by the counsel for the parties before the Rent Controller on March 23, 1984 and the report of the referee, it is evident that the said ground of eviction was duly proved and the ejectment order should have been passed straightaway by the Rent Controller.

As regards the alleged laches on the part of the Petitioner, at the time of the motion hearing, he was directed to file an affidavit as to the progress of the proceedings before the Rent Controller after the passing of the impugned order. Affidavit dated August 1, 1985, in that behalf, was filed by the Petitioner wherein it was stated that after the passing of the impugned order on August 16, 1984, the case has been adjourned for one reason or the other and that the the next date fixed therein by the Rent Controller was August 31, 1985 This version in the affidavit is supported by the record summoned from the Real Controller by this Court Under the circumstances, the question of laches does not arise in this case. The authorities relied upon by the learned Counsel for the Respondents have no applicability to the facts of the present case.

Consequently, this revision petition succeeds and is allowed with costs The impugned order dated August 16, 1984, passed by the Rent Controller is set aside He is directed to pass necessary orders in view of the report of the referee dated March 23, 1984 The parties have been directed to appear before the Rent Controller on 4-11-1985. The records of the case be sent back forthwith.