Kanta And Anr. vs Ahmed
1998 Latest Caselaw 809 Del

JUDGMENT

C.M. Nayar, J.

1. This appeal is directed against the judgments dated 11th July, 1975 passed by Shri M.A.Khan, 6th Additional Rent Controller, Delhi and May 19, 1978 of Shri P.K.Bahri, Rent Control Tribunal, Delhi.

2. The brief facts of the case are that the respondent brought the eviction petition against Goverdhan Lal on the grounds covered by Clauses (e)and (j) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as 'the Act'). The said Goverdhan Lal was proceeded against ex-parte vide Order dated 16th September, 1970 and an Order for ex-parte eviction was subsequently passed on 24th September,1970. The application which is the subject matter of the present proceedings for setting aside of that Order was moved before the learned Rent Controller on 26th September, 1970. The pleas raised in the application are referred to in paragraph 2 of the Order passed by the Additional Rent Controller which reads as follows: -

"2 It is alleged that the eviction case was fixed for evidence of the petitioner for 16/9/70 but the applicant/J.D. was ill and was confined to bed and is still confined and therefore, he was unable to attend the court personally on the aforesaid date and accordingly sent his brother Vishwa Nath to the court to call the counsel when the case is called. It is averred that Vishwa Nath could not trace out the court room and also could not contact the lawyer as the lawyer was busy in the Hon'ble High Court when the case was called and therefore, his lawyer also could not appear. In these circumstances, it is stated that the absence of the JD and his counsel was bona fide and beyond their control and on 14/10/70 J.D's counsel came to know from the staff of the court that the ex-parte decree has been passed against him."

3. The learned Additional Rent Controller came to the conclusion on appreciation of material on record that the material evidence of a doctor in this case and also the omission of mention of the illness of the deceased Goverdhan Lal made it hard to believe that the deceased was too ill to come to Court on 16th September, 1970. It was also held to be not believable that the deceased could have sent Vishwa Nath without giving the particulars of the Court in which the case was pending. The averments made in the application for setting aside the ex-parte Order were disbelieved and it was held that no sufficient cause for the absence was made out and the impugned eviction Order was upheld and an application under Order 9 Rule 13 C.P.C. as a consequence was dismissed.

4. The Rent Control Tribunal affirmed the findings of the Additional Rent Controller and also came to the conclusion that it was not proved that there was any sufficient cause for absence on the date fixed in the case and as such the ex-parte eviction Order was maintained. The present second appeal has been filed to impugn the Orders passed by the Additional Rent Controller as well as the Rent Control Tribunal. The matter came up before this Court for the first time on 27th July, 1978 when the following Order was passed:-

"27-7-78 Present: Mr. Amar Singh Chaudhary for the petitioner.

Notice.

C.M. 1543/78 .

Notice for 16th August 1978. Dispossession stayed in the meanwhile."

5. The interim order of stay was confirmed on August 16, 1978 and has continued to operate till date. It is unfortunate that this appeal which raises a short question has lingered on in this Court causing manifest injustice to both the parties and no serious attempt has been made to dispose of the same expeditiously.

6. I have heard learned counsel for both the parties. The fact remains that an Order of eviction has been passed ex-parte against the predecessor-in-interest of the appellants, Goverdhan Lal on 24th September, 1970 and an application was subsequently moved within a period of two days i.e. on 26th September, 1970. The Additional Rent Controller as well as the Rent Control Tribunal have rejected the same and upheld the Order of eviction. They perhaps did not foresee that the matter would continue to remain pending in this Court for a period of over two decades though it would have been convenient for both the parties to have the eviction proceedings disposed of on merits. It is also not in dispute that the predecessor-in-interest of the appellant Goverdhan Lal has since expired on 15th December, 1970 i.e.within a period of about three months of passing of the impugned order of eviction. The learned Tribunal held that it was not possible to appreciate the reasons for the negligence of the lawyer or for the gross negligence of Goverdhan Lal or his brothers in not pursuing the case properly. It was, therefore, established that the case met with the fate due to the negligence of the brother of Goverdhan Lal or of the lawyer who appeared in the matter. But at the same time it has caused manifest injustice as no order on merit has been pronounced by the Courts below.

7. The learned counsel for the appellant has submitted that the property in dispute has now been declared as an evacuee property under the provisions of the Administration of Evacuee Property Act, 1950 and, therefore, the respondents have no right, title or interest in the same. This is vehemently denied by learned counsel for the respondent who has contended that the respondents have purchased the property by registered sale deed from Mst. Mariam and has referred to the Order dated March 27, 1997 passed by Usha Mehra, J. in C.M.No. 2139 96.

8. The appellant Smt.Sharda is present in Court and is identified by her learned counsel, Mr. P.N.Talwar. She has stated that she is no longer in occupation of the property though possession and control of the same remained with her and one of her relations is residing therein. The husband of this appellant is a doctor in AIIMS and they are presently based in the Government accommodation. These pleas are not the subject matter of the present proceedings before this Court and it will be open for both the parties to raise their respective contentions before an appropriate authority.

9. For the aforesaid reasons the present appeal is allowed. But taking an overall view of the facts and circumstances of the case and the time which has elapsed since the passing of the Orders declining to interfere in ex-parte proceedings, the learned Rent Controller will now dispose of the matter within a period of six months from today.

10. The parties are directed to appear before the learned Rent Controller on 15th October, 1998.