S.S.SODHI, J. - (1.) THE challenge in revision here is to the order of ejectment passed against the petitioner-tenant on the ground of non-payment of arrears of rent.
(2.) A reference to the material on record shows that on May 28, 1985, Smt. Vimla Devi filed a petition for ejectment against her tenant-Ramesh Mohan Malik the petitioner here, on the ground of non-payment of arrears of rent with effect from October 25, 1984. Notice of this petition was served upon the petitioner for August 30, 1985, which was the date fixed for hearing. The petitioner did not appear in spite of service and he was consequently ordered to be proceeded against ex parte. September 25, 1985 was the date fixed for the recording of the ex parte evidence of the respondent Nirmla Devi. On that date, the petitioner filed an application seeking the setting aside of the ex-parte order passed against him on August 30, 1985. This application was eventually dismissed by the Rent Controller on September 4, 1986. The revision petition filed against this order was dismissed by this Court on December 15, 1986 and the Special Leave Application to challenge the order of the High Court in revision was also dismissed by the Supreme Court on February 23, 1987. It was thereafter that on March 4, 1987, the rent controller ordered the ejectment of the petitioner. This order was later upheld in appeal by the appellate authority on Nov. 17, 1987. During the pendency of the proceedings before the Rent Controller, the petitioner filed an application on October 9, 1985 and in pursuance thereof, tendered the rent due. It is the case of the petitioner that as the rent had been tendered within 15 days on September 25, 1985 the day when he made the application for setting aside the ex-parte order made against him, the tender of rent by him must be held to be valid and within time. The contention raised in this behalf was sought to be founded upon the judgment of the Supreme Court in Sham Lal (Dead) by LRs. v. Atma Nand Jain Sabha (Regd.) 1987(1) RCR 188, where it was held that the words "first hearing of the application" as used to proviso (i) to sub-section (2) of Section 13 of the East Punjab Urban Rent Restriction Act, 1949 does not mean the date fixed for th8 return of the summons, but the date when the court applies its mind to the case. The date that the court applies its mind not the case would ordinarily be when issues are framed (sic) ordering evidence has begun".
(3.) IT will be seen that in terms of the rationale of Sham Lal's case, (supra) the crucial point for determining the 'first hearing of the application for ejectment' would be the date on which the court applies its mind to the case. In a case like the present where the tenant is proceeded against ex parte, no question of framing of issues arises. Logically and of necessity, in the present case, this date must be taken to be the date on which ex parte proceedings were ordered to be taken against the petitioner, which was August, 30, 1987. The date on which the application for setting aside the ex-parte order was filed by the petitioner, can by no means, be taken to be such 'first date of hearing'. In this view of the matter, the tender of rent by the petitioner on October 9, 1985, cannot be held to have been made within time.;