1993 Supreme(MP) 475

R.D. Shukla, J.
Sumitra Bai (Smt.) v. Jagdish Agarwal
C.R. No. 16 of 1993 (I); Decided on 17.8.1993*.

Headnote:(1) Accommodation Control Act, 1961 (M.P.) -- Ss. 23-E, 23-A, 31 and 32 -- High Court can examine any order in its revisional jurisdiction out coming from eviction case -- provisions under Ss. 31 or 32 have no application they being general provisions of appeal.

        (2) Accommodation Control Act, 1961 (M.P.) -- Ch. III-A, Ss. 23-E, 31 and 32 --- case under Ch. III-A -- revisional powers under S. 23-E are available -- general provisions under Ss. 31 and 32 do not apply.

        (3) Civil P.C., 1908 -- O. 9 R. 13 -- setting aside of ex-parte decree -- no sufficient cause for absence made out -- clemency cannot be shown n application is liable to be dismissed.

        (4) Accommodation Control Act, 1961 (M.P.) -- S. 23-E finding contrary to evidence or perverse -- revisional Court would interfere.

        ¼1½ LFkku fu;a=.k vf/kfue;] 1961 ¼e-iz-½ & /kkjk 23 &³] 23&d 31 rFkk 32 & mPp U;k;y; csn[kyh ds ekeys ds fdlh Hkh vkns‘k dh viuh iqujh{k.k vf/kdkfjrk esa ijh{kk dj ldrk gS & /kkjk 31 vFkok 32 ds v/khu mica/k] vihy ds lk/kkj.k mica/k gksus ds dkj.k] ykxw ugha gksrsA

        ¼2½ LFkku fu;a=.k vf/kfue;] 1961 ¼e-iz-½ & v/;k; 3&d] /kkjk 23&³] 31 rFkk 32 & v/;k; 3 ds v/khu ekeyk & /kkjk 23&³ ds v/khu iqujh{k.k vf/kdkfjrk miyC/k gS & /kkjk 31 rFkk 32 ds v/khu vihy ds lk/kkj.k mica/k ykxw ugha gksrsA

        ¼3½ flfoy izfdz;k lafgrk] 1908 & vk- 9 fu- 13 & ,di{kh; fMdzh dh vikfLr & vuqifLFkfr ds fy, i;kZIr dkj.k LFkkfir ugha & d`ik ugh dh tk ldrh & vkosnu [kkfjt fd, tkus ;ksX; gSA

        ¼4½ LFkku fu;a=.k vf/kfue;] 1961 ¼e-iz-½ & /kkjk 23&³ & fud‘kZ lk{; ds foijhr vFkok foi;ZLr & iqujh{k.k U;ky; gLr{ksi djsxkA

        This revision is directed against the judgment and order dated 28.11.92 of the Rent Controlling Authority (in short R.C.A.) whereby the application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree passed in case no. A-90 (Misc.) 43-N91 has been accepted.

        Held: Section 23E (2) of the Act provides that the High Court may at any time "suo moty" or on the application of any person aggrieved, for the purpose of satisfying itself as to the legality, propriety or correctness of any order passed by or as to the regularity of the proceedings of the Rent Controlling Authority, call for and examine the record of the case pending before or disposed of by such authority and may pass such order in revision in reference thereto as it thinks fit.

        Thus, it is apparent from the plain reading of Rule 16 and Section 23E (2) of the Act that High Court can examine the irregularity of the proceedings. E;x-parte order or order for setting-aside ex-parte decree would be proceedings relating to order passed under Chapter IIIA of the Act.

        The provisions of section 31 and 32 of the Act are general provisions for first appeal and second appeal. The provisions of Section 23E of the Act is an exception to that provision and, therefore, in cases under Chapter IIIA of the Act the provisions in section 23E of the Act shall have precedence.

        Almost a similar question arose before the Division Bench of this High Court (Gwalior Bench) in a case reported in 1989 JU 345 (Tarabai Smt. v. Second Additional Judge and others). It has been held therein that when R.C.A. exercises its jurisdiction in relation to an application under section 23A of the Act by passing any order with respect to trial or disposal of that application and not only when the final order is rendered in the proceedings, that decision would be open only to revision by the Court under section 23E, indeed, all interlocutory orders passed by the R.C.A. with respect to that proceeding under section 23A would only be revisable by the Court. In respect of these orders appellate jurisdiction under section 31 cannot be exercised, that is barred under section 23E (1).

        I am in full agreement with the view expressed above. In the Opinion of this Court, therefore, the revision is maintainable and that the objection as to the maintainability of revision raised by the counsel for N.A. cannot be accepted. While arguing the matter learned counsel for the applicants himself has filed copy of the order passed in Civil Revision No. 36/92, the same has been decided by brother V.S. Kokje, J., who has rightly rejected the principle of merger, and has rightly directed the R.C.A. to decide the application under Order 9, Rule 13 C.P.C. Thus, this contention of the learned counsel for the applicant also does not appear to be correct.

        The last and most important point that is to be decided in the case is that as to whether there was sufficient cause for absence and that whether the learned R.C.A. could set aside the e2C-parte.decree for giving an opportunity of defence to tenant-N.A.

        I have gone through the order of learned R.C.A. He has very clearly held in the last but one paragraph at page 3 of his order that it was because of the negligence of tenant-N.A. that the ex-parte order and thereafter the decree has been passed against him. It has further been held in the next para that the delay

        in the case and inconvenience to the applicants landlord has been caused because of the non-applicant-tenant. However, it has been observed that it would not be proper to deprive him of an opportunity of defence.

        The ex-parte decree can be set aside if the defendant or N.A shows a sufficient cause for his non-appearance or his absence. Once it has been found by the learned R.C.A that there was no sufficient cause or that the tenant-N.A was negligent and he was wholly responsible for the delay in case the ex-parte decree could not be seta side merely for showing some clemency to the defence. The parties are required to be afforded an opportunity of putting up of their case as per the procedure prescribed therein, i.e., as per the C.P.C. or the Act itself. Once that opportunity had been provided, law required no clemency in the matter and if the defence has been negligent and guilty of purposeful delay in the case. The ex-parte order cannot be set aside by showing a clemency or for affording a further opportunity.

        Normally, the revisional Court does not interfere into the finding of fact even if it can come to a different conclusion on appreciation and re-evaluation of the evidence; if the finding is supportable otherwise, but where the inference is contrary to the evidence or perverse or is against the legal provisions it becomes the duty of the revisional Court to interfere in the matter. Since the finding of the R.C.A is that there was no sufficient cause for absence the ex-parte decree could not have been set aside and learned R.C.A has wrongly exercised jurisdiction in setting aside ex-parte decree without there being a sufficient cause for absence of tenant-non-applicant.

        As a result the revision succeeds and the impugned order of learned R.C.A is set-aside. The application for setting aside the ex-parte decree is dismissed. 1989 JLJ 345 and C.R. No. 36/92 relied on. Revision allowed.