S.S.KANG, . - (1.) BY this writ petition under section 15(2) of the East Punjab Urban Rent Restriction Act, 1949, the petitioners seek the setting aside of an order dated 11.8.1982 of the learned Rent Controller, Ludhiana refusing to set aside the ex parte order dated 20.7.1981, ordering ex parte proceedings against the petitioners in ejectment proceedings filed by respondents No. 1 and 2.
(2.) BRIEFLY stated, the facts of the case are that the present respondents filed an application for ejectment against the petitioners on various grounds. It is not necessary to go into the history of the case. Suffice to mention that summons were issued for the service of the petitioners for 20.7.1981. The petitioners were served for that date. They engaged Shri Subhash Sharma, Advocate as their counsel. On 20.7.1981, Shri Sharma, accompanied by Surinder Singh petitioner, went to the Court of the learned Rent Controller in the morning. They came to know that the case had been adjourned by the learned Rent Controller to 25.8.1981, on the ground that the petitioners-tenants had not been served. Shri Subhash Sharma, Advocate and Surinder Singh petitioner came back. The petitioners had handed over the arrears of rent, costs and interest etc., for payment to the landlord in Court. The petitioners and Shri Sharma went to the Court of the Rent Controller on 25.8.1981, the adjourned date and were surprised to know that on the previous date, i.e. 20.7.181 the learned Rent Controller had ordered ex parte proceedings against the petitioners by a subsequent order of that date. On that very day, they filed an application for setting aside that ex-parte order. The respondent-landlords appeared and contested the application for restoration and pleaded inter alia that the tenants had been served and they did not intentionally appear in Court. They had come to know about the orders regarding ex parte on 20.7.1981 and intentionally did not do anything to get the same set aside at an early date. On the pleadings of the parties, the learned Rent Controller framed the following issues :- (1) Whether there are sufficient grounds for setting aside the ex parte order dated 20.7.1981 ? (2) Whether the application is within time ? (3) Whether the application filed by the respondent is false, frivolous to their knowledge and is liable to be dismissed ? (4) Relief. The petitioners examined Raj Paul, petitioner, Shri Subhash Sharma, Advocate and Surinder Singh petitioner all of whom supported the version narrated above. On the other hand, Ashwani Kumar was examined as a witness on behalf of the landlords.
(3.) IT will be appropriate to notice the orders passed by the Rent Controller on 20.7.1981 at the very threshold. The first order reads : "Present : Counsel for the applicant. Respondent not served. Respondent be again summoned for 25.8.1981 on PF and Regd. cover. Sd/- R.C. 20.7.81" On that very date, the second order was passed which is to the following effect :- "As this summons of the respondents duly served received back, I am satisfied that the respondents are duly served. They are proceeded against ex parte. For ex parte evidence, to come up on 25.8.1981. Dated 20.7.1981. Sd/- R.C." A combined reading of these two orders supports the version given by Shri Subhash Sharma, a practising Advocate and an independent witness. His statement has not been discarded by the learned Rent Controller also. The learned Rent Controller, on the basis of the material before him, passed the first order. It seems that by that time, the summons sent to the tenants had not been received back in Court or in any case, the same had not been attached with the file and a report to that effect had not been made. So, the learned Rent Controller observed that the respondents had not been served and the case was adjourned to 25.8.1981 and fresh summons were ordered to be issued. It seems that thereafter Shri Subhash Sharma, Advocate went to the Court and came to know that this order had been passed and thereafter, he went away satisfied that no further proceedings were going to be taken on that day. This was a bonafide belief. The conclusion reached by Shri Sharma cannot be said to be in any way unwarranted. If, on the representation of Shri Sharma, Advocate, tenants went away, they cannot be blamed. If the factum of the service of summons had come to the notice the learned Rent Controller at a later stage on that very day, he should have sent for Shri Sharma. When an order was passed in open Court, the petitioners were justified in acting on it. I do not accept the proposition, as canvassed by Shri G.R. Majithia, learned Senior Advocate, that the Rent Controller could not review his order. The learned Rent Controller could revise his order afresh in the light of fresh facts. The interim orders are not final orders. There is no bar in the changing them if the facts and circumstances of the case so warrant. However, the learned Rent Controller acted with material irregularity in passing the second order. The ex parte order, impugned in this revision petition, has resulted in manifest injustice to the petitioners. They are liable to be ejected, because they have not deposited or tendered the arrears of rent on the very first date of hearing. Consequently, I allow this revision petition and set aside the order passed by the learned Rent Controller. Since the petitioners have not been as careful, as they ought to have been and because of their conduct, the ejectment proceedings have been delayed, they shall pay Rs. 500/- as costs to the respondent landlords.;