- (1.) The respondent filed an application for the ejectment of the petitioners from the shop in dispute on November 15, 1976. The service of the petitioners was effected for December 15, 1976. On that date, they did not attend the Court and ex-parte proceeding were ordered against them and the case was adjourned to April 27, 1977. On the same day an application for setting aside the ex-parte proceedings was made on behalf of the petitioners which was allowed on February 24, 1977. On that date, the learned Rent Controller adjourned the case for further proceedings. The main file of the case was also ordered to be put up on March 8, 1977. On that date the learned Rent Controller assessed the arrears of rent interest and the costs which were duly paid by the petitioners. The question arose whether February 24, 1977 the date on which the ex-parts order was set aside, or March 8, 1977, the date on which the main file was summoned by the court, was the first date of hearing.
(2.) The learned Appellate Authority relied upon a Full Bench decision of this Court in Shri Vinod Kumar v. Harbans Singh Azad, 1977 1 RCR(Rent) 253 and held that the date on which the ex-parte order was set aside was the first hearing in the case.
(3.) Shri H.L. Sarin, the learned Senior Advocate, appearing on behalf of the petitioners, has emphasised that it was the statutory duty of the learned Rent Controller to assess costs and to determine the amount to be tendered by the tenant and since the main file was not before the learned Rent Controller, he had to adjourn the case to March 8, 1977 for further proceedings. The learned counsel argues that by mentioning the words "for further proceedings" in the order, the learned Rent Controller himself advanced the first date of hearing. According to him, some duty was cast on the learned Rent Controller also to assess the amount payable by the petitioners. In this connection, he has placed reliance on Mangat Rai v. Ved Parkash, 1969 RCJ 171, wherein it was observed. "It is wrong to say that section 13(2)(i) Proviso casts only a unilateral duty on the tenant, without there being any corresponding duty and discretion vesting in the Court in connection therewith. There are reciprocal obligations created by the proviso. So far as the calculation of arrears of rent and interest is concerned, that is the sole responsibility of the tenant. But so far as the assessment of the costs is concerned, the proviso assigns that function to the Controller. If accepted, this argument of the petitioner would be rent amount to saying that for the purpose of making the payment as indicated in the proviso, it is not necessary that there should be a 'hearing' of the case by the Controller. Such an argument is obviously a contradiction in terms and must be repelled.";