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First Rent Appeal No.340 of 1982, decided on 27th November, 1983.

---S.13--Defence, stricking off--Tenant directed to make payment of arrears of rent as well as payment of future rent in ejectment petition- Tenant already depositing rent in another rent case between same parties but making no deposit in petition wherein order for deposit of rent passed--Held, a mere technical lapse--Rent Controller should have considered same and then come to conclusion whether tenant had committed default.

---Ss.13. & 15--Petition against tenant transferred to another Rent Controller--Tenant's counsel served but none appearing and ex parte ejectment order was passed--Tenant filing application for setting aside of ex parte order and filing no appeal against that order--Application for setting aside of ex parte dismissed--Tenant filing appeal against ex parte order and dismissal of application for setting aside of ex parte order--Held, tenant allowing to become ex parte order final--Ex parte order tough not justified on fact of case still same was within jurisdiction--Ex parte order upheld in circumstances.

Noordin Ramzan for Appellant.

Abdul Majid Khan for Respondents.

Dates of hearing: 20th and 27th November, 1983.

There are two Appeals Nos.FRA 340/82 and F.R.A.341/82. They are being disposed of together as the facts are similar to each other. The appellants are the tenants of the respondents. The respondent had filed ejectment application No.3812/77 against Ghulam Ahmed and Application No.3811/77 against Mumtaz Ahmed on the ground of default and the building being dangerous as well as for reconstruction. The written statement was filed on 1-3-76 and allegations were denied. On 2-8-1978 Rent Order was passed but the appellants counsel was not present before the Court. The appellants were directed to deposit Rent at Rs.89 per month from November, 1974 to July, 1978 amounting to Rs.355.96 on or before 14-9-1978. Future rent to be deposited before the 15th of each subsequent calendar month.

On 4-12-1978 the respondents 'applied to the Court for striking of the defence of the appellants as they had failed to deposit the rent in compliance with the order of this Court. The report of the Nazir on that application showed that Altaf Ahmed appellant had deposited Rs.32.36 each on 14-3-1979 and 17-5-1979 and Rs.8 on 18-8-1979 and Rs.49 on 6-9-1978. Appellants filed Counter-affidavit to striking of the defence application and stated that they had been depositing rent in R.C.No.761/67 between the same parties and in R.C. No.763/69. They further stated that they had come to know that Rent ought to have been deposited in the present case after the striking of the defence application had been made. They also filed photostat copy of the Rent Account from the Nazir showing that Rent had been deposited in R.C. No.761/69 by Ghulam Ahmed and in R.C.No. 763/69 by Altaf. This counter-affidavit had been filed on 14-12-1978. Thereafter the case was adjourned due to one reason or the other.

On 1-8-1979 case was transferred from third Rent Controller Court to 7th Rent Controller and in September, 1979 notice was sent in application 3812/78 to Mr. Nooruddin Ramzan the counsel for the appellants and it was received by him on 12-9-1979 this notice is available on record of the said application. Mr.Nooruddin who is present before me has not denied the receipt of that notice but has stated that notice did not give the details as required and that in any case the same was only in R.C.No.3812/77. However, I left under margin of that notice there is mentioned of R.C. No.3811/77 as well, 16-9-1979 is mentioned in that notice and it is also mentioned in a rubber stamp affixed on the back of that notice that 16th day of September, 1979 was the date of hearing. There is an endoresement of the Bailiff on the notice that he had delivered the same to Mr.Nooruddin Ramzan. The matter could not proceed on the next date and on 11-10-1979 and 24-10-1979 Court motion notice was ordered to issue to the opponent counsel. The same was probably done without seen the process which had already been served. On 24-11-1979 arguments were heard of the applicants counsel in the absence of counsel of appellant and on 28-11-1979 the defence of both appellant were struck of the they were ordered to handover possession.

The respondents waited till November, 1980 when they file Execution application and notice of this application was served upon the appellants on 5-12-1981 and they filed application for setting aside of exparte order of striking of the defence on 12-12-1981. The appellants did not file any appeal against the order of 28-11-1979 immediately after they were served with the notice of execution application. They filed the appeal only on 15-3-1982 after their application for setting aside of the ex parte order was dismissed on 20-2-1982. The present appeal is therefore, directed against both the orders dated 28-11-79 and 20-2-1982.

Mr.Nooruddin Ramzan submitted that since Ghulam Ahmad and Altaf had deposited the rent in R.C. No.761/69 and 763/69 which had been brought to the notice of the Rent Controller therefore, the order of the rent Controller was clearly illegal and he should have dismissed the application under section 13(6) because there was substantial compliance with the order of the Rent Controller. This submission appears to be justified at least factually inasmuch as I find that the counter affidavit of the appellants had attached statement of the amounts shown to have been received by the Rent Controller in R.C.No.761/69 and R.C.No.763/69 and therefore, the defence of the appellants may not have been struck off on the ground of non-payment of rent. Mr.Abdul Majeed is right that this was not a strict compliance with the order of the Rent Controller where the appellants had been directed to make payment of the arrears of rent as well as payment of the future rent and that too in this application but this is a mere technical lapse on the part of appellants and since they had been depositing rent in the previous rent cases of 761/69 and 763/69 therefore, the Rent Controller should have considered the same and then come to a conclusion as to whether the appellants had committed default or not.

However, that does not conclude the matter as I am of the view that the appellants were not justified in remaining absent on 28-11-1979 when ex parte order had been passed against them. Their counsel had been served with the transfer notice and therefore, the appellants should have been attending the case and it is in fact on account of the default in appearance of the counsel of the appellants that a wrong order had been passed by the Rent Controller. But passing of a wrong order does not mean that it was an order without jurisdiction. The appellants having been served with the notice of the transfer in both cases, they cannot say that they had no notice of the proceedings in the Court of 7th Rent Controller on 28-11-1979.

In any case the appellants had been served with the Execution application notice on 5-12-1981 and therefore, even if they wanted to plead that they had no notice of the order dated 28-11-1979 then also they have come to know on 5-12-1981 that an ex parte order had been passed against them on 28-11-1979. They should have filed an appeal against that order within time limit allowed by law but they did not do so an ultimately filed the appeal on 15-3-1982 when it was clearly time-barred and they did not make any application for condonation of the delay I am therefore, of the view that the order of 28-11-1979 had been allowed to become final when the appeal against the same was filed. This order although not justified on the fact of the case still it was an order within the jurisdiction and was an order which has been passed after notice to the appellants and therefore, the same could not have been allowed by appellants to become final by lapse of time. To say the least the appellants have been negligent in the prosecution of their case.

I have seen the order of the Rent Controller dated 28-2-1982 where she has dismissed the application for setting aside ex parte order on the ground that the appellants counsel had been served with the notice of transfer of the case on 12-9-79 and therefore, their absence on 28-11-1979 was not properly explained, in view of the fact that the appellants had completely denied the receipt of notice by their counsel on 12-9-1979. The notice had been properly served on the counsel of the appellants and therefore, the appellants have also to be saddled with that responsibility, And consequently the orders of 28-11-1979 and the orders dated 20-2-1982 are found to have been passed within jurisdiction and the order of 28-2-1982 is correct on the facts of the case. The appellants had not shown any good reason of their absence on 28-2-1979 and therefore, the Rent Controller was justified in dismissing their application for restoration. I may say that the application dated 12-12-1981 for setting aside the order of 28-11-1979 was itself hopelessly time-barred. In the end I would only point out that the position taken by the appellants in their application for restora tion as well as the present appeal that notice on Court motion was not served on the Advocate of the appellant is a completely false statement as I have seen that the Court motion notice was served upon the counsel of the appellants on 12-9-1979.

Mr. Nooruddin had eventually submitted that the service of Court motion Notice was only in R.C.No.3812/77 therefore. It should have no effect upon R.C.No.3811/77. The counsel has based his arguments upon the fact that only one Notice in both the applications have been served upon him on 12-9-1979 and he has pointed out that the marginal mentioned of R.C.No.3811/77 the said notice should be ignored as it may have been added later. It is not possible for me to entertain this objection of the learned counsel at this stage as it is a question of fact as to what was contained in that notice at the time when it was served upon the appellants counsel. The said notice thus contained a mention No.3811/77 and Mr.Abdul Majeed has shown me a certified copy of this notice issued on 3-9-1980 which shows that R.C.No.3811/77 was mentioned on this notice. This notice has received consideration from the Rent Controller and the Rent Controller has come to the conclusion that the appellants counsel had been duly served with the notice of transfer in both of the cases. The submission of the learned counsel that he was served only in one case appears to be an afterthought in view of the facts that the appellants in both the cases have completely denied receipt of such notice at every stage. The services of this notice either upon them or upon their counsel is the same. And hence this objection is not well-founded.

Consequently these two appeals are not found to be of any merit and are hereby dismissed. However, the appellants are granted 6 months time to vacate the premises in their possession provided they continued paying the rent as ordered by the Rent Controller.

M.A.K. Appeal dismissed.

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