M.M.PUNCHHI,J. - (1.) THE petitioner Mahant Garib Dass filed an application for ejectment of his tenants Smt. Harbans Kaur and others way back in the year 1978. The prominent ground of eviction was that alterations and new constructions had been made in the demised premises without the consent of the landlord and this had tended to impair the value and utility of the demises building. The necessary issues were struck. The petitioner-landlord had examined two witnesses and proposed to examine more on the adjourned date. On 12.3.1981 when he was present with his evidence, none appeared for the tenant-respondents. The Rent Controller called the case a number of times on that date but eventually finding the respondents not putting in appearance, proceed ex parte. On that date itself, he examined two witnesses of the petitioner i.e. the Local Commissioner, who had inspected the spot, and the petitioner himself. The evidence of the petitioner was closed and arguments were heard. The following day i.e. 13.3.1981 was fixed for orders.
(2.) ONE of the tenants Jagjit Singh moved an application, Exhibit A.1, on 13.3.1981 before the Rent Controller, for setting aside the ex parte proceedings. It purported to have been prepared on 12.3.1981. Simultaneously, the counsel for the tenant-respondents Mr. Vinay Vatrana moved an application, Exhibit A.W. 2/1, for setting aside the ex parte proceedings against the tenants. The cause advanced in both the applications was that on 12.3.1981 Mr. Vinay Vatrana had met with an accident and was thus unable to attend Court. Further the case of the tenants and their counsel was that a day earlier on 11.3.1981, Jagjit Singh had specifically instructed his lawyer to put in appearance in Court as the former was likely to be absent from Court, for he had to go to Delhi for business purposes. Statedly, when he returned to Patiala in the Court premises at 3.45 P.M., he learned from the Clerk of the lawyer that the case had proceeded ex parte since Mr. Vinay Vatrana had not attended the Court. Mr. R.L. Ananad, the then Rent Controller, rejected the applications since he took the view the Order 9, Rule 7, CIvil Procedure Code, was not attracted. He sought support from Arjun Singh v. Mohinder Kumar and others, A.I.R. 1964 Supreme Court 993. He was of the opinion that the adjourned date was only for pronouncing judgment and thus it was not "the hearing" of the suit and hence Order 9, rule 7, Civil Procedure Code had no applicability. Thereupon, he pronounced order of eviction. There and then, the respondents moved another application through their counsel for setting aside the ex parte decree and proceedings reiterating the same pleas as were raised in application, Exhibits A.1 and A.W. 2/1. The measure was resisted by the landlord-petitioner. The Rent Controller then framed the solitary issue as to whether there was sufficient cause for setting aside the order of eviction. The parties were allowed to lead evidence. The tenant-respondents examined Jagjit Singh, one of the tenants, and Mr. Vinay Vatrana on their behalf. The landlord-petitioner examined Tek Chand the Clerk of Mr. Vatrana, and Grib Dass petitioner himself to support his case. The Rent Controller on examining the matter set aside the ex parte order on payment o Rs. 250/- as costs and this has given rise to the present petition.
(3.) TWO points have arisen in this petition. One, which was vehemently urged in the beginning but later partically abandoned on the strength of judicial precedents, was as to whether the decision of the Court under Order 9, rule 7, Civil Procedure Code, in refusing to set aside ex parte proceedings could operate as res judicata in application under Order 9, rule 13, Civil Procedure Code. The order of Mr. R.L. Anand, the ex Rent Controller, was pressed into service to contend that when ex parte preceding had not been set aside, the tenants at best could have participated in the hearing of the final order in the case and could not ask for the reopening of the proceedings. The matter in this regard is clinched against the landlord as would be apparent from the following extract from Arjun Singh's case (supra):- "........the question next arises what is the nature of the order if it can be called an order or the nature of the adjudication which that Court makes under Order 9, Rule 7. In its essence it is directed to ensure the orderly conduct of the proceedings by penalising improper dilatoriness calculated merely to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit. Besides, it is obvious that the proceeding is of a very summary nature and this is evident from the fact that as contrasted with Order 1, Rule 9 or Order 9 Rule 13, no appeal is provided against action of the Court under Order 9 Rule 17, "refusing to set back the Clock". It is, therefore, manifest that the Code proceeds upon the view not imparting any finality to the determination of any issues of fact on which the Court's action under the provision is based." Thus, the law is clear on the subject that rejection of the application under Order 9, rule 7, CIvil Procedure Code, could not be a bar to the subsequent application under Order 9, Rule 13, Civil Procedure Code.;