F. COHEN Vs. W.W. GAYRAUD
LAWS(CAL)-1976-7-38
HIGH COURT OF CALCUTTA
Decided on July 09,1976

F. Cohen Appellant
VERSUS
W.W. Gayraud Respondents

JUDGEMENT

S.K. Datta, J. - (1.)The Rule was obtained by the landlord opposite party in connection with a proceeding for fixation of rent instituted by two joint tenants before the Rent Controller, Calcutta. It appears that there was an inspection of comparable units as cited by both the parties by the Inspector and the Inspector duly filed his report. The case came up for hearing on December 7, 1973, when both the parties were present and hearing was adjourned to December 10, 1973; on that date the opposite party No. 2 was present but the landlord, the Petitioner before me, was not present and her lawyer also was not there. The hearing commenced ex parte and the evidence was adduced on behalf of the tenant and the case was fixed on January 17, 1974 and thereafter to February 18, 1974, for orders. The learned Rent Controller after considering the evidence adduced by the tenant by order of the said date fixed the rent of the disputed premises at Rs. 150 per month with effect from April 1, 1971, in place of contractual rent of Rs. 300 per month. The Rent Controller also directed adjustment of the excess rent paid.
(2.)On April 1, 1974, the landlord filed an application praying For rehearing of the case after setting aside the ex parte order. It was stated in the petition that the hearing of the case was fixed on December 10, 1973, which fact was known to the landlord's constituted Attorney. As the landlord's Attorney did not have any information from his lawyer since that date, he came to enquire about it in the first week of March following when his Advocate stated that he could not attend the Court on December 10, 1973 and was not in a position to say what happened to the case. Thereafter, the land lord's Attorney made enquiries, caused searches to be made and for the first time on March 9, 1974, came to know that by the ex parte order of February 18,1974, the case was disposed of. It was stated that the landlord's constituted Attorney could not attend the Court due to his pre -occupation on December 10,1973 and his Advocate also did not appear and as such she could not be represented on the said date of hearing and the same was ultimately heard ex parte. On these facts the landlord wanted to have the ex parte order of February 18,1974, set aside and for a rehearing of the case. The learned Rent Controller, after considering the application, was of the opinion that sufficient cause has not been made out to establish that the learned Advocate for the landlord was prevented from appearing when the case was called on for hearing on December 10,1973. The application for 'restoration' was, accordingly, rejected by order dated August 7, 1974.
(3.)The landlord thereafter moved this Court by an application under Article 227 praying for setting aside both the orders, namely, orders dated February 18 and August 7,1974. Mr. Saktinath Mukherjee, learned Advocate appearing for the landlord, the Petitioner before me, submitted that in the facts and circumstances of the case the learned Rent Controller should have allowed the application for restoration and the case should have been fixed for hearing on merits in presence of the parties. He further submitted that the ex parte order on February 18,1974, suffered from further infirmity, even though the proceeding was heard ex parte. The learned Rent Controller did not take for his consideration the comparable premises shown to the Inspector by his client and the Inspector's report was also on record which was admissible in evidence as held in Mafazzal Hossain v/s. Ayesha Bibi : 56 C.W.N. 750.
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