J.V.GUPTA,J - (1.) THIS is tenant's petition whose application for setting aside the ex-parte order dated September 12, 1986, was dismissed.
(2.) THE landlord filed the ejectment application on July 16, 1986, on the sole ground of non-payment of arrears of rent with effect from February 1, 1986 to July 31, 1986. The tenant was summoned for September 8, 1986. On September 8, 1986, the case was adjourned to September 19, 1986, for tendering the arrears of rent etc. The tenant did not appear on that date and the case was adjourned to October 1, 1986 for ex-parte evidence. On that date, the tenant moved the application for setting aside the ex-parte order dated September 19, 1986. The said application was dismissed the very day with the observations :- "The application cannot be returned to him and request to this effect is declined. However, a fresh application may be made by the respondents if law so permits. To come after some time today." As a consequence of this order, the tenant moved second application that very day i.e. October 1, 1986, for setting aside the ex-parte order dated September 19, 1986. The said application was contested by the landlord. The Rent Controller after framing the issues and allowing the parties to lead evidence, came to the conclusion that there was no fresh ground for setting aside the ex-parte order. However, in paragraph 13 of the judgment under revision, the Rent Controller observed :- "Next contention of the Ld. counsel for the applicant is that the applicant was having sufficient money to pay the arrears of rent etc. and that his absence on 19.9.1986 was not intentional and wilful. Though the applicant had offered arrears of rent to the petitioner/landlord on 1.10.1986 and 25.10.1986 yet these offers do not prove that the applicant was having sufficient funds on 19.9.1986 to make payment of rent etc. On 19.9.1986 according to pleadings in the petition the respondent was required to pay Rs. 2106/- besides interest and cost. The applicant has not produced any documentary evidence, i.e., pass book etc. to prove that he was having this amount on 19.9.1986." Earlier, vide this Court order dated May 25, 1987, a report was sent for from the Rent Controller as to decide the question whether the tender was valid and within time. This was necessitated because in the High Court it was observed in the said order :- "As the tenant had tendered the rent on Oct. 1, 1986, the Rent Controller is directed to decide the question whether the tender made was valid and within time."
(3.) THE report of the Rent Controller dated July 30, 1987, has been received in this Court. According to the said report, "the rent was never tendered by the tenant to the landlord in this case because the tender would have been followed either by acceptance or by refusal. In this case, the landlord neither accepted nor refused to accept the arrears of rent either on October 1, 1986, or on October 25, 1986. Therefore, the natural conclusion is that the arrears of rent were never tendered by the tenant to the landlord. In these circumstances, there is no question of the tender being valid and within time.";