JUDGMENT
Gian Chand Jain, J.
1. On August 6, 1981, A.S. Bakshi, respondent herein brought a petition for eviction of the appellant M/s. Overseas Employment Consultants from the premises in dispute, namely Basement of 82-83 Vakunth, Nehru Place, New Delhi. It was averred that the tenant was in possession of the said premises on a monthly rent of Rs. 1,000/- and had neither paid nor tendered the whole of rent due from January 1, 1981 in spite of service of notice of demand dated March 13, 1981. The appellant was duly served of the application for eviction. Mr. Rupender Singh, Advocate was engaged as its counsel. The counsel appeared before the Addl. Controller on September 30, 1981 and sought adjournment for filing the written statement. The case was adjourned to October 27, 1981. On that date the written statement was not ready. Adjournment was allowed on payment of Rs. 40/- as costs and case fixed for November 23, 1981 when the written statement was filed This written statement admittedly did not bear the signatures of the appellant and was signed only by the counsel The case was, thereafter fixed for March 28, 1982 for arguments for the purposes of making an order under Sub-section (1) of Section 15 of the Act. On that date some proxy counsel appeared for the appellant tenant and arguments were heard. On April 12, 1982 an order under section 15(1) directing the tenant to deposit the arrears of rent with effect from January 1, 1981 upto date at the rate of Rs. 1,000/- per month within one month from the date of order and to continue to pay or deposit the future rent at the same rate by the 15th of each following month, was made. The case was fixed for September 15, 1982 for landlord's evidence. In between the landlord moved an application under Section 15(7) for striking out the defence of the tenant. Notice was issued to the tenant for the date already fixed, i.e. 15th September, 1982 Nobody appeared on behalf of the tenant on that date and it was proceeded ex-parte. Ultimately an order for eviction was passed against it on October, 25, 1982.
2. The landlord filed an application for executing the said eviction order. Warrants for possession were issued. The bailiff of the court went to the spot on 26th February, 1983 for executing the warrants. The tenant on 28th February, 1983 moved an application for setting aside the order issuing the warrants for possession. That application was dismissed on 18th March, 1983. The tenant approached the Tribunal in appeal against the said order. The Tribunal, it is stated observed that the proper remedy for the tenant was to move an application for setting aside the ex parte order dated 25th October, 1982. Counsel, in view of this advise withdrew that appeal and made an application under Order IX, Rule 13 of the Code of Civil Procedure read with Section 5 of the Limitation Acton 22nd April, 1983 This application was dismissed by the learned Additional Controller on 2-9-1983 The tenant went in appeal, the same was allowed and the case was remitted with the directions to the Addl. Rent Controller to decide the application, after allowing the parties to lead evidence.
3. Thereafter the application was again dismissed by the learned Additional Controller. Appeal filed against the order was dismissed by the Tribunal and hence this second appeal.
4. Order IX, Rule 13 of the Code of Civil Procedure reads at under:--
In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also;
Provided further that no court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
A perusal of the provisions shows that the ex-parte order can be set aside if (1) summons were not duly served on the defendant/respondent; (ii) if he was prevented by any sufficient cause from appearing when the suit was called on for hearing. In the present case, admittedly the summons were duly served. The short question which requires consideration, therefore, is whether the appellant was prevented by sufficient cause for appearing on 15th September, 1982 when it was proceeded ex parte.
5. I have gone through the application under Order IX, Rule 13. The reasons given in support of the application for setting aside the ex-parte order are contained in paras 11 to 14. The reasons are (1) the appellant was not aware of the order made under section 15(1) of the Act after hearing the arguments addressed by some proxy counsel; (2) that the proxy counsel had no authority to appear to argue on 12th April, 1982; (3) that the appellant was not aware of the proceedings pending in the Court. He was pre-occupied by his work. It was only on 26th February, 1983 that he came to knew of an ex-parte eviction order; (4) that the appellant had not received any notice of the application under Section 15(7) of the Act and did not know that the case was fixed for 15th September, 1982; and (5) that the appellant was dealing with the employment of Indians abroad and in that connection he had to travel in different parts of the country.
6. I have given in detail the reasons given by the appellant for setting aside the ex parte order. The application gives no reasons good, bad or indifferent for appellants absence or absence of its counsel on 15th September, 1982. A perusal of the record shows that this date had been fixed in the presence of its counsel. It cannot therefore be said that the appellant did not know of this date. There being no explanation or reason in the application for the absence on 15th September, 1982, it cannot be said that the appellant was prevented by sufficient cause for appearance before the Addl. Controller on that date.
7. Learned counsel for the appellant vehemently contended that the appellant had full faith on his counsel and it was the negligence of the counsel in not appearing and informing the appellant about the decision of his case. I am afraid this contention has not much relevancy Appellant knew the eviction had been chimed on the ground of non-payment of arrears of rent. It was under a duty to sad out as to what was happening in the case. It was his duty to pay or deposit the rent but no steps were taken. No cause not to speak of sufficient cause has been made out.
8. I, therefore, find no justification for interference in the second appeal.
9. I consequently dismiss the appeal. The appellant however, is given three months' time to vacate the premises. The parties are left to bear their own costs.