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High Court of Judicature at Madras
The Honourable Mr. Justice Jagadeesan
Bala Subramanian
Versus
Rshaath Risha and others
C.R.P.No.128 of 1997
Decided On : 10-02-1997
R.C.O.P. - Setting Aside Ex Parte Order - Rule 13(3) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 - Interpretation - Applicability - Stay of Proceedings - Maintainability of Application to Set Aside Order of Dismissal.
Fact of the Case:
The petitioner, a tenant, filed an application to set aside an ex parte order setting him ex parte in an eviction proceeding. While the application was pending, an ex parte order of eviction was passed. The petitioner's subsequent application to set aside the order of dismissal of the initial application was dismissed by the Rent Controller and the Appellate Authority.
Finding of the Court:
The court held that the petitioner should have filed an application for stay of further proceedings in the eviction proceeding when he filed the application to set aside the ex parte order. The court also held that Rule 13(3) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, which mandates the Rent Controller to set aside an ex parte order, is applicable only to the first application to set aside such an order and not to subsequent applications.
Issues: 1. Whether the Rent Controller was correct in proceeding with the eviction proceeding while an application to set aside the ex parte order was pending. 2. Whether Rule 13(3) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, is mandatory and applicable to subsequent applications to set aside an ex parte order. 3. Whether the petitioner's application to set aside the order of dismissal of the initial application was maintainable.
Ratio Decidendi: 1. The court held that the petitioner should have filed an application for stay of further proceedings in the eviction proceeding when he filed the application to set aside the ex parte order. The court reasoned that the mere filing of an application to set aside the ex parte order does not automatically postpone the disposal of the eviction proceeding on merits. 2. The court held that Rule 13(3) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, is applicable only to the first application to set aside an ex parte order and not to subsequent applications. The court reasoned that the language of the rule suggests that it is intended to apply only to the first application and that there is a separate provision for subsequent applications in Rule 13(4). 3. The court held that the petitioner's application to set aside the order of dismissal of the initial application was not maintainable. The court reasoned that the petitioner should have challenged the order of dismissal by way of appeal or revision, rather than filing a subsequent application to set it aside.
Final Decision: The court dismissed the petitioner's civil revision petition, confirming the orders of the courts below.
1. The tenant is the petitioner. The respondents filed R.C.O.P. No. 14 of 1993 to evict the petitioner herein. The petitioner was set ex parte on 6. 1993. He has filed an application I.A.No.49 of 1993 to set aside the order, setting him ex parte. While the said application was pending, an ex parte order of eviction was passed on 26. 1993. The application I.A. No.49 of 1993 was dismissed on merits on 10. 1993. The petitioner has filed I.A.No.2 of 1994 to set aside the order passed in I.A. No.49 of 1993. The Rent Controller as well as the Appellate Authority dismissed the application I.A.No.2 of 1994 on the ground that the same is not maintainable and the proper remedy for the petitioner is to file an appeal against the order of dismissal of I.A.No.49 of 1993. Now the revision has been filed against the order of the Appellate Authority in R.C.O.P. No.6 of 1994, confirming the order of the Rent Controller, dismissing the application I.A.No.2 of 1994.
2. The learned counsel for the petitioner contended that when the application for setting aside the order of setting ex parte was pending, the Rent Controller ought not to have proceeded with the R.C.O.P. any further and the disposal of the R.C.O.P. ex parte is not correct. More over I.A.No.49 of 1993 had been dismissed on the technical ground that the petitioner did not mention anything about the date of the ex parte order in the petition and as such the application for setting aside the order in I.A.No.49 of 1993 is maintainable and the courts below sought to have entertained the same on merits.
3. I carefully considered the contention of the counsel for the petitioner. When the petitioner has filed the application I.A.No.49 of 1993 for setting aside the order, setting him ex parte, he ought to have filed an application for stay of further proceedings in R.C.O.P. No.14 of 1993. Without filing an application for stay of further proceedings, he cannot blame the court for proceeding with the R.C.O.P. In the absence of any application for stay, the mere filing of application for setting aside the order setting the petitioner exparte, cannot be a ground to postpone the disposal of the R.C.O.P. on merits. It is not the case of the petitioner that when the R.C.O.P. was taken up for final disposal on 26. 1993, the court was put on notice about the pendency of the application I.A.No.49 of 1993. Hence there is nothing wrong on the part of the lower court to proceed with the R.C.O.P.
4. When the application I.A.No.49 of 1993 filed by the petitioner for setting aside the order, setting him ex parte, had been dismissed whether on merits or on technical grounds, the proper remedy is to file on appeal against the said order and there is no provision to entertain an application for setting aside the order. Hence bother the courts below have rightly dismissed the application I.A.No.2 of 1994 filed by the petitioner for setting aside the order of dismissal of I.A.No.49 of 1993.
5. The counsel for the petitioner further contended that as per Rule 13(3) of the Rules framed under the Pondicherry Buildings (Lease and Rent Control) Act, 1969, if an application for setting aside the ex parte order or to set aside the order of dismissal is presented, then the court is bound to stay the further proceedings. It is further contended that in this case, the petitioner was set exparte on 6. 1993 and the application has been field for setting aside the order, setting the petitioner exparte and while the application was pending, the Rent Controller has proceeded with the trial ex parte in the R.C.O.P. and ultimately passed an ex pate order of eviction on 26. 1993 which is contrary to the said Rules.
6. I am unable to agree with the contention of the counsel for the petitioner. The admitted case is that the petitioner was set ex parte on 6. 1993. The application for setting aside the order, setting the petitioner ex parte, seems to have been filed. From the records it is not clear as to on what dat
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