The Rent Controller has the jurisdiction to dismiss an application for default of appearance or to proceed ex parte against a party who fails to enter appearance, but this power also implies a duty to restore an application dismissed for default or to set aside an ex parte order if the defaulting party satisfies the authority that there was good cause for non-appearance.

Headnote:
RENT CONTROL - BOMBAY RENT CONTROL ACT, 1947 - SECTION 13(3)(I) AND (II) - APPLICATION FOR SETTING ASIDE EX PARTE ORDER - JURISDICTION OF RENT CONTROLLER - DUTY TO RESTORE APPLICATION DISMISSED FOR DEFAULT OR TO SET ASIDE EX PARTE ORDER - PROCEDURE TO BE FOLLOWED IN CASE OF MINOR LITIGANTS - INTERPRETATION OF SECTION 13(3)(I) AND (II) OF THE BOMBAY RENT CONTROL ACT, 1947.
Fact of the Case:

The petitioners, widows and minor sons of Damjibhai, filed an application to set aside an ex parte order passed by the Rent Controller granting permission to terminate their tenancy. The Rent Controller and the appellate authority rejected the application on the ground that there was no good cause for non-appearance and that the petitioners were negligent. The petitioners challenged these orders in a writ petition.
Finding of the Court:

The court held that the Rent Controller and the appellate authority erred in rejecting the application without giving the petitioners an opportunity to lead evidence or to place facts or material before the court to show that there was a case for restoration. The court also held that the Rent Controller should have taken steps to secure representation of the minor petitioners before proceeding ex parte against them.
Issues: 1. Whether the Rent Controller had jurisdiction to dismiss the application for default of appearance or to proceed ex parte against the petitioners? 2. Whether the Rent Controller was bound to follow the decision of the High Court in 1962 Nag LJ 180? 3. Whether the Rent Controller and the appellate authority erred in rejecting the application without giving the petitioners an opportunity to lead evidence or to place facts or material before the court to show that there was a case for restoration? 4. Whether the Rent Controller should have taken steps to secure representation of the minor petitioners before proceeding ex parte against them?
Ratio Decidendi: 1. The jurisdiction to dismiss an application for default of appearance or to proceed ex parte against a party who fails to enter appearance is implicit in the jurisdiction to entertain and adjudicate upon the claims made before it by the parties in proceedings under the Rent Control Order. 2. The Rent Controller was bound to follow the decision of the High Court in 1962 Nag LJ 180, which held that an application dismissed in default was liable to be inquired into and registered if the Rent Control authority was satisfied that there was good cause for non-appearance. 3. The Rent Controller and the appellate authority erred in rejecting the application without giving the petitioners an opportunity to lead evidence or to place facts or material before the court to show that there was a case for restoration. 4. The Rent Controller should have taken steps to secure representation of the minor petitioners before proceeding ex parte against them.
Final Decision: The court allowed the petition, set aside the ex parte order granting permission to terminate the tenancy, and directed the parties to appear before the Rent Controller on 30th March 1969 for continuation of the proceedings.

JUDGMENT - 1. The petitioners in this case under Art, 227 of the Constitution are two windows of one Damjibhai and his two minor sons Liladhar and Champalal. They along with Damjibhai were occupying certain premises in Amravati town. The opponents are the landlords of those premises. /they filed an application on 2-12-1964 seeking permission to terminate the tenancy of the premises under Clause 13 (3) (I) and (ii) of the Rent Control, Order. The proceedings seem to have protracted for a considerable time and were fixed for 27th January 1966. It may be mentioned that both parties were represented by their counsel before the Rent Controller. On 27th January 1966 the counsel of the opponents-landlords intimated to the Court that Damjibhai was dead. One Sureshchandra it appears, was present in Court on that date and he informed about Damjibhais death, he being the nephew of Damjibhai The landlords counsel therefore wanted time to bring he legal representatives on record and case was adjourned to 2-2-1966. An application to bring on record the present petitioners was a granted and they were noticed for appearance and evidence on 14-2-1966. On 14-2-1966, the petitioners were represented by an advocate who filed written statement and the case was adjourned to 23-2-1966 for evidence. On this date, neither the petitioners nor their foxed for evidence of the petitioners there being no appearance, the Court closed the case for orders on 28-2-1966. In other words, the Rent Controller decided to proceed ex parte against the petitioners on 28-2-1966. When none was present an order granting permission to the prejudice of the interest of the petitioners was passed.

2. On 28-3-1966, an application was filed on behalf of the petitioners to set aside the ex parte order dated 28-2-1966. in this application the petitioners averred in paragraph 3 that petitioners I and 2 were illiterate and simple ladies, that they are not accustomed to appear in public they being of Gujarathi community and are old and that the petitioners 3 and 4 were minors below 12 years and in these circumstances they did not consider it necessary to go to their counsel on 23-2-1966 as they thought that their counsel will do the needful, but in their absence and for want of their signature, their counsel could do anything in the case and the Court proceeded ex parte against them all and the case was posted to 28-2-1966 and the final order was passed. Under these circumstances, the petitioners prayed that they could not present themselves in court and the interest on minors was involved and therefore, the ex parte order should be set aside.

3. This application was vehemently opposed on behalf of the respondent landlords as is the case even in this Court. The position seems to be founded on law relating on decision of the Nagpur High Court reported in 1953 Nag LJ (Notes) 211. it was contended that such an application for setting aside the ex parte order is not tenable under the law. This was by way of a preliminary objection raised on behalf of the landlords. I do not find any other objection on merits raised on behalf of the landlords at all.

4. The Rent Controller had fixed the case first on 24-5-1966 and again on 28-5-1966 on which heard and the case was fixed for orders. An order was passed rejecting the application on 6-6-1966. It may be noted that the Rent Controller did not consider it necessary to fix the case for making an enquiry and to allow parties to adduce evidence, at any rate, the petitioners to substantiate their application by evidence.

5. The Rent Controller rejected the application observing that the ruling cited on behalf of the landlords viz., 1953 Nag LJ (Notes) 211 was application on all fours and was still good law. He also observed that even on merits, the petitioners having failed to make any appearance through advocated on 23-2-1966, the reasons given by the petitioners for their absence have hardly any justification and it s nothing but a case of negligen

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Judicial Analysis