Dua, J.:— Jagat Ram has approached this Court under section 15 of the East Punjab Urban Rent Restriction Act No. 3 of 1949 in the following circumstances.
2. Shri Shanti Sarup, respondent in this Court, applied for ejectment of Jagat Ram from the premises in question on the following grounds:—
(1) That he had not paid the rent for five months due from 3rd October, 1962;
(2) that he had sublet the property;
(3) that he had converted the user of the leased premises; and
(4) that the property had become unsafe for human habitation.
3. Jagat Ram was served for 7th February, 1983 but he did not tender the arrears of rent along with interest on that day but complained to the Rent Controller that no copy of the application had been served on him along with the summonses. The case was accordingly adjourned to 9th February, 1963 for filing the written statement. On 9th February 1963, the tenant did not appear with the result that ex-parte proceedings were taken against him. The tenant later applied for setting aside the ex-parte proceedings which were set aside on 5th March, 1963. On the last mentioned date the tenant also tendered arrears of rent along with interest and costs. Shri Shanti Sarup declined to accept the arrears on the ground that the same had not been tendered on the first hearing and was, therefore, not a valid tender.
4. The Rent Controller thereupon settled the fallowing issue:—
5. Whether the respondent made a valid tender of the arrears of rent due?
The contention raised on behalf of the tenant that 7th February 1963 was not the first day of hearing because he had not been supplied with a copy of the application for eviction was repelled by the Rent Controller in view of the decision in Mela Ram v. Kundan Lal . 1961 63 P.L.R 451, which followed Hira Lal v. Gian Singh and Co. . A.I.R 1951 Punj. 41., and Mukh Ram v. Siri Ram . 1959 61 P.L.R 561., on this view, the learned Rent Controller came to the conclusion that the arrears of rent had not been tendered on the first day of hearing with the result that the landlord was entitled to an order of ejectment. The landlord's petition was thus allowed and an order of ejectment passed on 8th April, 1964.
6. The matter was taken on appeal to the appellate authority who endorsed the view of the Rent Controller with the observation that the decisions of this Court were binding on him. This observation was necessitated because on behalf of the tenant-appellant some rulings of other High Courts were cited before him. Dwarf a Devi etc. v. Hans Rai . 1936 63 P.L.R 705. in which a learned Single Judge of this Court had observed that deposit by a tenant on the day on which the ex-parte order is set aside must be treated as if the deposit was made on the day fixed for his appearance, was distinguished by the appellate authority on the ground that the facts were different and also that there was no evidence on the record before it showing that on 9th February, 1963, the adjourned date of hearing, the tenant had sent anyone with arrears of rent, costs and interest etc. An unreported decision of another learned Single Judge in Banarsi Das etc. v. S. Santokh Singh . C.R No. 697 of ???., C.R No. 697 of 1959 was also brought to the notice of the appellate authority taking the same view as have been in the decisions relied upon by the Rent Controller. The appeal was thus dismissed.
7. On revision, in this Court, the learned counsel for the petitioner has submitted that the view of law taken by the Rent Controller and the appellate authority is not justified on the language of the statutory provision. He has laid stress on the proviso to section 13(2)(i) of the Rent Act which lays down that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at 6 per cent per annum on such arrears of rent together with the costs of the application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time mentioned in clause (i). He has laid stress on the expression “after due service” and has submitted that the essential prerequisite of due service is that a copy of the application for ejectment must be served on the tenant. He has contended that the decisions on which reliance has been placed have ignored this vital aspect. Assistance has also been drawn from the decision in Dwarka Devi's case and it has been submitted that it was incumbent or at least open to the landlord to have opposed the prayer for setting aside the ex-parte order on the ground that no valid tender having been made on the first date of hearing the setting aside of the ex-parte order was futile and not called for. Having not objected to the setting aside of the ex-parte order, it is contended that the landlord cannot be permitted to object to the tender being made on the first date when the ex-parte order is set aside.
8. The learned counsel for the respondent has in addition to the authorities mentioned above drawn my attention to a recent decision of a learned Single Judge of this Court in Mukandi Lal v. Ghanya Lal . C.R No. 491 of 1962., C.R No. 491 of 1962 decided on 17th May, 1963 in which the tenant had been served by means of affixation at the outer door of his residence. This was contended not to be due service for the purposes of the proviso to section 13(2)(i) of the Rent Act because no copy of the application was either affixed at the outer door or supplied to the tenant. This contention was repelled on the ground that service by affixation was attempted after it was found that the tenant could not be personally served and that Order 5, Rule 17, Civil Procedure Code does not require a copy of the application or of the plaint to be affixed at the outer door along with the summonses. With this observation, the tenant there was held to have been duly served. After this holding the learned Single Judge made a reference to Mela Ram's case and dismissed the tenant's revision. Another unreported decision of this Court by G.D Khosla C.J sitting singly in Nar Singh v. Raja Ram . C.R No. 396 of 1960., C.R 396 of 1960, decided on 30th March, 1961 has also been brought to my notice. In that case, the tenant had remained unnerved for a number of hearings and eventually the case came up for hearing on 7th August, 1958, on which date the tenant did not appear, although service had been effected on him two days earlier. Ex-parte proceedings were taken against him and the next date of hearing was fixed for 14th August, 1958. Two days prior to that date the tenant appeared before the Controller and applied for setting aside of the ex-parte order. This application was heard on 14th August, 1958 when the tenant also made a tender of the arrears of rent etc., due from him. The application for setting aside the order was allowed on the ground that the tenant had shown good cause for his absence on 7th August, 1938. The learned Chief Justice on this view observed that it was quite clear that 7th August, 1958 could not be treated to be the first date of hearing, in that, the first date of hearing is the date upon which the Court deals with the matter and the defendant appears or should appear to answer the case against him. If service is effected and the defendant appears, then clear also it is the date of hearing, but if service is effected on the defendant and he does not appear, then the question arises whether or not there was good ground for his absence. In case he absents himself wilfully, he cannot be entitled to claim that this was not the first date of hearing and the Court would be entitled to proceed ex-parte against him if, however, he can satisfy the Court that there was good ground for his absence, then the date cannot be the first date of hearing because the defendant has been able to show adequate reasons for not being present and answering case against him. The tenant's position would be exactly the same as if no service had been effected upon him. With these observations, the tenant was held entitled to claim the advantage of proviso to section 13(2)(i) and the appellate authority was considered to be justified in dismissing the landlord's application. It is noteworthy that no earlier decision of this Court was brought to the notice of the learned Chief Justice. Another decision of another learned Single Judge of this Court in Bichha Ram v. L. Lajpat Rai . C.R No. 44 of 1969.. C.R No. 44 of 1959 decided on 13th August, 1959 has also been brought to by my notice. That was a landlords revision and the facts bearing on the point in controversy there are that the first date on which application for eviction had come up for hearing was 23rd November, 1956, the tenant having been personally served on 20th November, 1956. He did not appear in that date and ex-parte proceedings were ordered to be taken against him. The case adjourned to 27th November, 1956. Meanwhile on 23th November, 1956, the respondent appeared and applied for setting aside the ex-parte order. The landlord stated that he had no objection to the setting aside of the ex-parte order on payment of costs and ex-parte proceedings were accordingly set aside. The tender of arrears of rent etc. was made on that very day. After referring to Manohar Lal v. Bal Raj . A.I.R 1963 Puaj. 247., a case under the Delhi and Ajmer-Marwara Rent Control Act, 1947, the learned Single Judge observed that neither in law nor in equity could the landlord be heard to say that the tender of arrears of rent could not come within the proviso to section 13(2) of the Act. With these observations, the landlord's revision was disallowed.
9. The question on which the fate of this revision depends is whether a tenant who has not been served with a copy of the application for ejectment can be considered to have been duly served and, therefore, whether on the date on which he appears and complains that he has not been served with a copy of such application can be considered to be the first hearing within contemplation of the proviso. Section 20 of the Kent Act empowers the State Government by notification to make rules for the purpose of carrying cut all or any of the provisions of the Act. My attention has not been drawn to any rule framed by the State Government and the expression “due service” has not been defined in the Act. Can the provisions of Civil Procedure Code relating to service of summons in suits be relied upon for the purpose of construing the expression “due service”? The question poses itself for finding a true solution of the problem. Section 2(b) defines the “Controller” as any person appointed by the state Government to perform the functions of a Controller and the Governor of the State has appointed all 1st class subordinate Judges in the Punjab to perform the functions of Controllers under this Act within the limits of their civil jurisdiction. S. 17 has provided that every order under section 10 or section 13 and also every order appeal under S. 15 is executable by civil Courts having jurisdiction in the area as if such orders are decrees of those Courts. S. 15(5) has conferred on the High Court a power of revision in respect of all orders passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such orders or proceedings. These aspects are, in my opinion, relevant for considering the scope and effect of S. 13(2)(i) proviso and there is no authoritative pronouncement by this Court on this important point, it is, therefore, more appropriate that this matter be authoritatively settled by a larger Bench.
10. Papers may accordingly be laid before my Lord the Chief Justice for constituting a larger Bench for the purpose.
Mr. Y.P Gandhi, for the Petitioner.
B.R Aggarwal and S.S Dhingra, for the Respondents.
JUDGMENT OF THE DIVISION BENCH
11. Mahajan, J.:— (5th November, 1964)—This is a petition under the East Punjab Urban Rent Restriction Act and has been referred to a larger Bench for decision by my learned brother Dua, J. by his order dated the 17th of December, 1963.
12. The facts of the case and the matters in controversy which require determination are fully set out in the referring order. It is, therefore, not necessary to cover that ground. The referring order should be read as part of this order.
13. The question that requires determination is one but it has two aspects. The question is whether on the facts of this case the deposit of arrears of rent made on the 15th February, 1963, was a deposit made at the first hearing. In other words the true scope and effect of the proviso to section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act No. III of 1919) (hereinafter referred to as the Act) falls for determination. The proviso is in these terms:—
“Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid”.
A tenant who is in arrears of rent incurs a forfeiture of the tenancy. This enables the landlord to bring an application for his eviction under section 13(2)(i) of the Act. However, the tenant can escape eviction by recourse to the proviso. The proviso operates only if at the first hearing of the application for ejectment after due service the rent in arrears is paid or tendered with six per cent per annum interest and costs as assessed by the Controller.
14. The Act contemplates framing of rules for carrying out all or any of the provisions of the Act (Section 20). There is no procedure prescribed in the act for determination of the applications under S. 13 of the Act. The applications lie not to a Court but to a Controller and the appeals from the orders of the Controller lie to an appellate authority. Both the Controller and appellate authority are persona designate and are not strictly Courts as defined in the Punjab Courts Act, Vide Pitman's Shorthand Acadamy v. B. Lila Ram & sons . 1950 52 P.L.R 1 F.B., though the persons who have been appointed as Controllers or appellate authorities are Subordinate Judges and District Judges. The provisions of the Code of Civil Procedure are applied to a very limited extent, namely for the purpose of summoning and enforcing the attendance of witnesses, and compelling the production of evidence (Section 16), The provisions of the Code of Civil Procedure with regard to the summoning of a party are even not made applicable. In this situation when the question arose in this Court as to what procedure the authorities under the Act had to follow in determining the application under section 13, Bhandari, C.J in Mathra Dass v. Om Parkash . 1967 59 P.L.R 45., observed as follows:—
“……a Rent Controller or a District Judge acting under the provisions of the Rent Restriction Act is at liberty to follow any procedure that he may choose to involve for himself so long as the said procedure is orderly and consistent with the rules of natural justice and so long as it does not contravene the positive provisions of the law. The elementary and fundamental principles of a judicial enquiry should be observed but the more technical forms discarded.”
In another case where the question arose whether the Rent Controller or the District Judge could set aside the ex-parte proceedings, Bhandari, C.J observed in Manohar Lal v. Mohan Lal . 1957 59 P.L.R 38., as follows:—
“The Rent Controller has inherent power to set aside an ex-parte order passed by himself.”
No discordant note has been struck in this Court against the aforesaid propositions laid down by the learned Chief Justice. They seem to be fully justified by the observations of the Supreme Court in Sangram Singh v. 1. Election Tribunal, Kotah . A.I.R 1956 S.C 425., wherein Bose, J. held as follows:—
“Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them”.
These authorities have been referred to with a purpose namely whether this Court would be justified in drawing inspiration from the Code of Civil Procedure while interpreting certain terms used in the proviso, which falls for our consideration.
15. The first question that has to be tackled is what is the meaning of the phrase ‘due service’ in the proviso. The contention on behalf of the tenant is that ‘due service’ means service of summons along with the copy of the petition under section 13. Whereas according to the landlord ‘due service’ merely means service of summons. If the landlord's contention is correct, the word ‘due’ seems to be superfluous in the proviso. It is a settled rule of law that legislature does not waste words and that every word in an enactment has to be given a meaning. With reference to the context of a statute certain words may have to be treated as superfluous or redundant, but that is an exception and not the rule. ‘Due service’ is followed by what the tenant is to do to get the benefit of the proviso, namely, to pay or tender the arrears of rent in accordance with the proviso. In case the tenant is merely sent a notice to appear, he will be totally oblivious as to the reason why he has been called upon to appear. How then could he be expected, when he appears, to tender the arrears of rent? The answer may be that the tenant would know why he has been called upon to appear; and, therefore, he must go to the Rent Controller with the arrears of rent, because what is due from him is within his personal knowledge. This consideration is off set in case where a landlord makes an exaggerated claim against a tenant or even a false claim. Moreover, it is not obligatory on the landlord to take the ground on the basis of the tenant's default in payment of rent. But on the other hand if a false claim is made regarding tenant's default, would it be a relevant consideration in interpreting the language of the proviso? If he is not in arrears, he is not required to make a deposit. If he is in arrears, he is bound to make a deposit as soon as he appears for the first time in response to summonses if he wants to avoid eviction under section 13(2)(i). One cannot lose sight of the fact that we are dealing with a provision which gives additional benefit to the tenant even when he has incurred forfeiture. That benefit is only available if he clears up his dues with interest and costs and that too at the first hearing. The first hearing is qualified by the phrase ‘due service’. Thus a hearing to be a first hearing has to be one after ‘due service’. If one refers to the summonses that are issued by the Rent Controller one finds that they provide for the copy of the application to be served along with the summonses. Thus, from this fact it may be assumed that the Rent Controllers have devised the procedure for summoning the tenant and that procedure is that the summonses must be accompanied by a copy of the application and if the copy of the application is not served along with the summonses, there is no ‘due service’. There are number of decisions of this Court which have taken the view that service is effective for the purpose of the proviso even if the sum monses have been served without the copy of the application. The basic decision is by Khosla, C.J in Mela Ram v. Kundan Lal, wherein it is held as follows:—
“The hearing does not cease to be a hearing, because the defendant has not been supplied with a copy of the plaint,”
The learned Chief Justice placed reliance for this proposition on the decision of Kapur, J. (as he then was) in Hira Lal v. Gian Singh and Co., wherein the learned Judge had observed—
“In my opinion the words ‘first day of hearing’ must mean the day when the defendant appears in answer to the summons and the Court takes up the case in accordance with the Civil Procedure Code”.
The facts of the above case do not show, that, when in response to summons the tenant appeared for the first time before the Rent Controller and prayed for an adjournment to file the written statement, he had not been served along with a copy of the application. The indications are to the contrary, namely, that he had been served with a copy of the application. Therefore, this authority does not furnish the basis for the proposition that mere service of summons without a copy of the application is ‘due service’. The first hearing according to the proviso can only be hearing after ‘due service’.
16. The next decision on which Khosla, C.J relied in Mela Ram's case is the judgment by Bhandari, C.J, in Mukh Ram v. Siri Ram. In this case again it was held that the deposit was made on the first hearing and no question arose as to ‘due service’ before the first hearing. The only question that was seriously debated before the learned Chief Justice was that the amount having been produced and ordered to be deposited on the first hearing could not be so deposited on that very day because the treasury had closed down at 2 P.M The amount was consequently deposited in the treasury the next day. It was held by the learned Chief Justice in this situation that the amount was deposited on the first date of hearing and there was full compliance with the proviso.
17. The decision of the learned Chief Justice in Mela Ram's case was followed by Falsbaw, C.J, in Shri Sushil Kumar v. S.B.S Atma Singh . C.R No. 60 of 1962., Civil Revision No. 60 of 1862, decided on the 14th of August, 1963, and by Gurdey Singh, J., in Mukandi Lal v. Ghanya Lal, decided on the 17th of May, 1963. An examination of these decisions discloses that no notice was taken of the word ‘due’ before service. The basic decision of Khosla, C.J in Mela Ram's case proceeded on the basis that once summonses were served on the tenant and he appeared in response to them, the hearing did not cease to be a hearing because the tenant was not supplied with a copy of the petition. Thus, the hearing in this situation was held to be a first hearing it being first in point of time. There can be no quarrel with this proposition to this limited extent that in point of time it is indeed the first hearing. But the question still remains, is it a hearing after due service? The expression due service’ is used in the Civil Procedure Code, and there is no reason why the same meaning should not be attached to that expression when it is used in the proviso to section 13(2)(i) of the Act. It is a well known canon of construction that where a certain expression is used in a statute and has acquired a certain meaning and that expression is again used in a subsequent statute, the Legislature must be presumed to have used it to denote the same meaning which it had acquired in the earlier statute. Moreover, the expression ‘due service’ is used in a procedural statute (Cede of Civil Procedure) which according to their Lordships of the Supreme Court in Sangram Singh's case is a statute embodying the rule of natural justice. See also in this connection the observations of Panigrahi, J. in Nimi Charan v. Sham Mohan . A.I.R 1953 Orrissa 254.. Therefore, there is no reason why the expression ‘due service’ should not be understood in the same manner as it is understood in the Chil Procedure Code, though the provisions of the Code of Civil Procedure have not been made specifically applicable to the proceedings under the Act.
18. The case, which has taken the contrary view, namely, first hearing is only that hearing which is after the summonses have been served with a copy of the application, is Ram Chand v. Mathra Das . I.L.R 1955 Patiala 88., a decision by Mehar Singh, J. It is no doubt true that section 17 of the Pepsu Urban Kent Restriction Ordinance (No. VIII of 2006 Bk) makes the provisions of the Code of Civil Procedure with regard to the summoning and enforcing the attendance of parties and witnesses applicable to proceedings before a Controller, but in purview in principle that will not make any difference, as will be presently shown. This decision was noticed by Khosla, C.J in Mela Ram v. Kundan Lal, decided on the 29th of March, ??? and while dealing with it the learned Chief Justice observed as follows:—
“……but since there is this conflict between the decisions of the Pepsu High Court and the Punjab High Court, I feel that I should follow the rule of this Court rather than that of another Court”.
It was not disputed by the learned counsel for the parties that under the Code of Civil Procedure, ‘due service’ would be service only after the summonses have been served with a copy of the plaint. We see no reason to depart from this interpretation of the words ‘due service’ so far as the Act is concerned. In our view the decision of Khosla, C.J and the other decisions which follow the same do not lay down the correct rule of law for they have ignored the word ‘due service’ in the proviso (Section 13(2)(i) of the Act).
19. It will also be proper at this stage to notice the decision of the Bombay High Court in K.M Dhotre v. A.L Mashalkar . A.I.R 1959 Bombay 471., relied upon by the petitioner's counsel. This decision, in our opinion, goes too far and we will rest content in quoting the passage from Meta Ram's case where the learned Chief Justice has fully dealt with the same. The reasoning of the learned Chief Justice commends itself to us and we are in respectful agreement with the same, while dealing with Mela Ram's case the learned Chief Justice observed as follows:—
“The reason given by Tendolkar, J. does not however, (and I say this with great respect to the learned Judge) appeal to me. He has sought to distinguish between the phrases ‘the first day of hearing’ and ‘the first day fixed for hearing’. The reason he gives is that a hearing takes place on several days and so the first day of hearing must be the day when something is done, and if it was intended that the first day of hearing was referred to in the proviso, then the expression ‘fixed for hearing’ would have been used. This is how the learned Judge argues the matter ‘Secondly, if by ‘the first day of hearing’ was to be meant the returnable date that comes only once in the course of a given suit, that is, the hearing that cannot repeat itself, then what was more easy for the Legislature then to say ‘on the day fixed for hearing?’ ‘On the first day of hearing’ imports also the idea that there will be other hearings of the type which we refer to here, but it is only the first of them that is to be taken into account. In other words, the quality of hearing referred to is such that it is capable of being repeated from, time to time in that suit and it is not a mere fixed point, like giving a notice which will never occur again in the same suit, that could accurately be described as ‘the first day of hearing of the suit.’ There is then no first day and no last, day; the day fixed for hearing would both be the first and the last because that day cannot respeat itself”
With great respect to the learned Judge, the reasoning does not appear me to be very logical and an enquiry into semantics is hardly likely to prove helpful in a case of the type, because when there is a day of hearing, the day of hearing is fixed and, therefore, whether it is the fist day of hearing which is fixed or the second day of hearing which is fixed, would make no difference at all to the case. A day fixed for hearing can apply to every day fixed for hearing and not only the first one. Therefore, the distinction sought to be made by the learned Judge is illusory and not real. It seems to me to be far more logical to hold that the first day of hearing is the day upon which the matter comes before the Court and the case can be heard because the defendant appears and the plaintiff is also present. If the defendant asks for an adjournment on some ground, that surely does not deprive that day of its quality of being a day hearing.”
20. Therefore, we are clearly of the view that in the context of the proviso to section 13(2)(i) of the Act, the words ‘due service’ must mean ‘service along with the copy of the application’. Any hearing after this service would be a first hearing. The only difference in the view that we have taken of the matter and that, that was taken by Khosla, C.J is that mere service of summonses will not make the hearing a first hearing; unless the summonses have been served with a copy of the application the appearance of the tenant in response to them will not make that hearing a first hearing. After giving the matter our careful consideration, we are of the view that the only way in which meaning can be given to word ‘due’ is that the tenant is made aware of what he is to answer in response to the service of summons. Otherwise the word ‘due would become superfluous, and in the context in which it appears, it cannot be held that the word ‘due’ was superfluously used. It is essential that either the purport of the application is made known to the tenant or a copy of the application is served on him. If the tenant has either not been conveyed the purport or the copy of the application but he appears before the Rent Controller, it would be appearance in response to service of summons but not ‘due service of summons’. In other words it will be a hearing but not the ‘first hearing’.
21. This brings us to the second aspect of the matter. What would be the first hearing where ex-parte proceedings are taken against a tenant and are set aside. This Court has consistently taken the view that if an ex-parte order is made on the date of the first hearing and that order is set aside, the first hearing will not be the first hearing, but the first hearing in this situation will be the day on which the ex-paite order is set aside. It may be mentioned that there is no bar to a tenant appearing at a hearing after the ex-parte proceedings have been taken against him. He can participate in those proceedings after that date, but that will not enable him to set at nought the proceedings of the day on which an ex-parte order was made against him or of the hearing following that hearing. But if he applies for setting aside of the ex-parte order and the Controller finds that there is sufficient cause for the non-appearance of the tenant on the first hearing and he sets aside the ex-parte order, its effect would be that the first hearing when the ex-parte order was passed, would not be treated as a hearing at all. What had happened on that hearing is just obliterated. Thus the first hearing in this situation is when the ex-parte order is set aside and the tenant is entitled to participate in the proceedings. This is what has been held in the following decisions:—
(2) O.P Kathpalia v. S. Lakhmir Singh . 1963 65 P.L.R 438.;
(4) Bichha Ram v. L. Lajpat Rai, Civil Revision No. 44 of 1959, decided on the 13th of August, 1959, by Capoor, J.;
(5) Nar Singh Das v. Raja Ram, Civil Revision No. 396 of 1960, decided on the 30th of March, 1961, by Khosla, C.J;
(6) Thakar Dass v. Siri Ram . C.R No. 422 of 1961. Civil Revision No. 423 of 1961, decided on the 29th September, 1961 by Falshaw, J., and
(7) Giani Hari Singh Jaehak v. Smt. Viran Devi . 1964 66 P.L.R ???..
22. In all these decisions the view has been taken that if a party is prevented by sufficient cause from appearing on the date specified in the summons, the day so specified is not the ‘first hearing’. The ‘first hearing’ in the circumstances will be the date, the ex-parle order is set aside. This happens when after service the party fails to appear. If the failure to appear is for sufficient cause, the date fixed for appearance has no meaning. But if the failure is not for sufficient cause, the date fixed for appearance will still remain the first hearing, provided the summonses were duly served.
23. However, there is one more matter which has to be adverted to, namely while setting aside the ex-parte order the Rent Controller has not merely to go by the fact that tenant was prevented by sufficient cause from attending the hearing, but also whether on that date the tenant had the funds to clear the arrears of rent. It is the tenant who is in arrears of rent. It is the tenant who wants to avoid his eviction under the proviso after hiving incurred the forfeiture of his tenancy by non-payment of rent. It is for him to prove not only that he was prevented by sufficient cause from not attending on the date fixed but also that he had the means to meet that liability. We are stressing this aspect for the reason that dismissals for default should not be set aside as a matter of course, particularly, when false medical certificates which are easily available in this country, are, usually produced and the correctness of which is not an easy matter to verify. It goes without saying that these are considerations which have to be kept in view at the time of the decision of an application to set aside an ex-parte order passed at the first hearing.
24. In view of what has been said above, it must be held in the present case that there was no ‘due service’ of the petitioner. He was served for the 7th of February, 1963, but without a copy of the application. He appeared on that date and demanded the copy of the application which was supplied and the case was adjourned to the 9th of February, 1963. Thus, 9th of February, 1933, would be the first hearing as already held. On the 9th of February, 1963, the petitioner was absent and ex-parte order was passed. The petitioner made an application for setting aside of the ex-parte orders on the 14th of February, 1963. He depo sited the arrears on the 15th of February, 1963, and on the 5th of March, 1963, the ex-pxrts order was set aside. Thus the arrears had been cleared off before the first hearing in this case, which would be 5th March, 1963, when the ex-parie order was set aside. As a matter of fact, there was no challenge to the setting aside of the ex-parle order.
25. The petition is accordingly allowed, and the order of eviction is set aside. The case will now go back to the Rent Controller for decision of the landlord's application on the merits. Costs to abide the events.
26. The parties are directed to appear before the Rent Controller on 23rd November, 1964.
27. Dua, J.:— I agree.
C.M.N/.A.M.S
Petition allowed.
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