Shri Bhagwan Sarup Sharma vs Shri Prem Kumar and another

G.C. Mital, J.—This is a revision petition filed by the landlord against the order of the Rent Controller, Ludhiana, dated 14th December 1978, whereby he had set aside the proceedings taken by him on 5th of June, 1978, on the ground that they were based on fraud played upon the tenant by the landlord.

The landlord had filed an application for ejectment on 14th of February 1978, against the tenant-respondent on the grounds of arrears of rent and for impairing the value and utility of the shop. On 27th of May, 1978, the tenant appeared in Court and demanded a copy of the ejectment application, as he was served without a copy of the same. The copy was furnished to him in Court and he was allowed time to make the tender on 5th of June, 1978, and to file his writhen statement on that date. On 5th of June, 1978, the tenant did not appear but from the proceedings of the Court it appears that a counsel filed a memo of appearance on behalf of the tenant and the Court recorded his presence and noted that the tenant had not come that day to make the tender and that his counsel had not made any tender and sought adjournment to file a written statement. The Court gave 18th of July, 1978, on payment of costs of Rs 50/-.

On 18th of July, 1978, the tenant filed an application for setting aside the proceeding dated 5th of June, 1978, on the ground that after 27th of May, 1978, and before 5th of June, 1978, he fell Ill and could not present himself on 5th of June for tendering the rent though he had always been ready and willing to tender due rent to the landlord. He further stated that there was a talk of compromise between the parties and the matter was almost settled and he had agreed to increase the rent and the landlord had agreed to withdraw his petition on 5th of June, 1978. It was further averred that the landlord had come to his house along with two other persons and he (the tenant) expressed his inability to attend the Court on 5th of June, 1978, and on the demand of the landlord for production of medical certificate with regard to his illness in Court, the certificate was obtained. He further went on to state in the application that he came to know that a fraud had been played on him. He alleged that he never instructed Shri P.S. Beri, Advocate of Ludhiana, to appear on his behalf or to submit his memo of appearance and it seems that the landlord, who engaged Shri P.S. Beri, Advocate, had mace him to appear on his behalf on 5th of June, 1978, so that it becomes the first date of hearing. What he was told about the proceedings dated 5th of June, 1978, was that the case was simply fixed for 18th of July, 1978, and on that date the landlord was to withdraw the ejectment application and when he came to Court on 18th of July, he found that the landlord had refused to withdraw the ejectment application and instead the counsel insisted the filing of the written statement on his behalf on which he engaged another counsel and after inspecting the file came to know the real position and filed the application for setting aside the proceedings dated 5th of June, 1978, on the aforesaid facts.

The Rent Controller framed the following issues:�

Whether the proceedings dated 5.6. 78 are liable to be struck off? O.P.A.

If issue No. 1 is proved, then what is the date of first hearing? O.P. Parties.

Relief.

The Rent Controller, by the impugned order, decided issues Nos. 1 and 2 in favour of the tenant and under issue No. 3 set aside the proceedings dated 5th of June, 1978, by accepting the application of the tenant.

The first point argued by the learned counsel for the landlord-petitioner is that the Rent Controller had no jurisdiction to set aside his own order dated 5th of June, 1978. This point is wholly devoid of any merit. It is the Court whose order is to be set aside either on the basis of fraud or being exparte that is to be moved and I find no lack of jurisdiction either on principle or on authority. If the tenant was over reached by the landlord in obtaining the order dated 5th of June 1978 then the only remedy with the tenant was to move an application before the Rent Controller for vacating that order after showing sufficient cause As such, I over-rule this argument of the learned counsel for the petitioner.

The next point raised by the learned counsel is that the tenant made no arrangements for the hearing dated 5th of June, 1978, if Shri P.S. Beri was not engaged as a counsel by him as found by the Rent Controller. The Rent Controller has accepted the pleas of the tenant and the evidence produced by him from which it is clear that Shri P.S. Beri, Advocate, who appeared as A.W. I clearly stated that he was not engaged by the tenant and was asked to appear by two persons who had come to him in the company of the landlord who stated that he was only to appear and get the next date as the parties had compromised. The tenant also produced Dr. K.L. Sahi A.W. 2 to prove the medical certificate R�1, which was filed in Court on 5th of June, 1978, and stated that the tenant was brought to him by one person on a scooter and he found him suffering from dysentery. Besides the above the tenant produced Kishan Chand A.W. 3 and Had Chand A.W. 4, who are the two persons in whose company the landlord went to the Advocate for requesting him to appear on behalf of the tenant to obtain the adjournment. These two persons fully support the story of compromise and the parties having agreed to increase the rent and for withdrawal of the ejectment petition. Believing the aforesaid material on the record and the plea of the tenant, I fail to understand what other arrangements had to be made by the tenant who was lying ill on that date and who had been given to understand that the petition would be withdrawn on that date. Under the circumstances, I find no merit in this point of the learned counsel for the petitioner either.

Last of all it is urged on behalf of the petitioner that in the application for setting aside the proceedings dated 5th of June, 1978, the tenant has stated that there was a talk of compromise between the parties and the matter was almost settled where as A.W. 3 and A.W. 4 have stated that the matter had been compromised by the parties for withdrawal of the petition and for increase of rent. I do not find any variation between the plea and the proof as in para 5 of the application it is further stated that the matter was almost settled and the tenant had agreed to increase the rent and in para 6 it was also settled that the landlord had agreed to withdraw the ejectment application on 5th of June, 1978. So, the plea and the evidence are constant and there is no variation and as such no point can be developed by the learned counsel on this basis.

The order passed by the Court below is just on the facts and circumstances of the case and upholding the same I dismiss the revision petition but with no order as to costs.