Heard Mr. Chandra Bhan Gupta, learned counsel for the Revisionist. Mr. H.P. Dube, assisted by Mr. Vipul Dube, learned counsel appearing on behalf of the sole respondent-landlord.
Admit.
Heard forthwith.
Summoning of the lower Court records is dispensed with on the joint statement of the learned counsel appearing for the parties and the Court proceeds to decide the Revision on the basis of copies of the record annexed to the motion papers.
A suit being SCC Suit No.27 of 2020, was instituted by the plaintiff-respondents against the defendant-revisionist for relief of eviction and recovery of arrears of rent together with damages for use and occupation, relating to the suit property, detailed at the foot of the plaint giving rise to the suit. The demised premises is a shop situate at the ground floor, 111/143, Harsh Nagar, Kanpur Nagar. Shorn of unnecessary detail, it would suffice for the purpose of determination of the controversy involved in the present revision that the suit aforesaid was directed to proceed ex parte against the defendant-tenant vide order dated 27.01.2021. The defendant-tenant made an application under Order IX Rule 7 CPC seeking to set aside the order dated 27.01.2021 directing the suit to proceed ex parte. This application has come to be rejected by the order dated 08.07.2021.
Aggrieved, this Revision has been instituted.
It is submitted by Mr. C.B.Gupta, learned counsel for the Revisionist that the Court below has adopted a pedantic approach in declining the revisionist-defendant's motion to set aside the ex parte order, opting a course of deciding the suit ex parte where the other party (the Revisionist) would be denied an opportunity to lead evidence. It is also submitted by Mr. Gupta, that he has deposited a sum of Rs.70,765/- towards the claim for arrears of rent and a sum of Rs.9912/- towards interest in compliance with Order XV Rule 5 CPC. This deposit has been made by the defendant in order to demonstrate his bona fides. The Court below has not bestowed consideration upon these features of bona fides of the tenant that manifest his desire to contest the suit on merits. It is also pointed out that the proceedings have been directed ex parte on the basis of a rather hurried decision, recorded on account of the revisionist's absence on two dates, both in the month of January, 2021. It is also submitted that the Revisionist, in fact, had no knowledge about the institution of the suit and came to know of the same for the first time on 11.02.2021. Learned counsel submits that the impugned order works serious injustice to the tenant-revisionist, who would be non-suited, without an opportunity being given.
On the other hand, Mr. Dubey, learned counsel for the plaintiff-respondent has vehemently opposed the revisionist's claim. He submits that the Revisionist deliberately absented from the proceedings before the Trial Court in order to delay a decision of the rent suit. He submits that the absence of the defendant was in keeping with the reputed strategy of tenants to delay determination of a suit for eviction by adoption of all kinds of dilatory tactics. He submits that in fact one of those tactics is manifest in the present revision. He emphasizes that the tenant deliberately permitted the proceedings to go ex parte and then made an application to have the direction set aside. And failing there, he has come up in Revision. He is, therefore, not entitled to any indulgence.
The Court has heard the learned counsel and perused the records.
No doubt, the Trial Court has recorded a very detailed finding about knowledge of the proceedings of the suit where it has been remarked that on 11.02.2021, the revisionist went to his counsel's chamber and came to know that the present suit is pending against him. The fact that on 11.02.2021, the defendant went to his counsel's chamber to find out about the suit has led the Trial Court to infer that he had prior knowledge and information about the suit, that is to say, prior to 11.02.2021. It has also been remarked that the information sought by the defendant was about the stage of the suit, which also predicates knowledge with the defendant about the pendency of the suit. It has also been recorded that the Process Server had gone over to the defendant's house and served him with summons. In addition, the process sent out by registered post was served on the defendant on 14.03.2020. The proceedings were directed ex parte on 27.01.2021. It has also been recorded that the predecessor-in-office of the learned Judge in the Trial Court had recorded in his order dated 31.10.2020, that service upon the defendant was sufficient. The Trial Court has largely non-suited the revisionist holding that the only ground urged to set aside the order is the revisionist's ignorance about proceedings of the suit, which the Trial Court has found not established. It has also been remarked that the defendant has no doubt complied with the provisions of Order XV Rule 5 CPC, but the effect of that deposit shall be judged on merits, whichever way the proceedings of the suit go. On these findings, the trial Court has discarded the revisionist's case for setting aside the proceedings ex parte.
It may be true that there is on record some evidence to show that the defendant was served with summons, but at this stage, Mr. Gupta, has urged a specific ground before this Court that he has raised in the memorandum of Revision here. It is urged that during the course of time these proceedings went ex parte, there was a massive and unprecedented dislocation of life on account of the COVID-19 pandemic. It went to such an extent that judicial notice was taken of it by their Lordships of the Supreme Court and the prescribed periods of limitation are still on an extended lease, beyond 15.03.2020. He submits, therefore, that the proceedings that have gone ex parte and have yet not culminated ought to have been set aside with liberty to the defendant to suit his case on merits. This is particularly so as the defendant has complied with the provisions of Order XV Rule 5 CPC. Compliance with Order XV Rule 5 CPC shows that the defendant wants to urge his defence substantially. This feature about the defendant's stance and bona fides appears to have been trifled by the Trial Court, which ought not to have been done. In the opinion of this Court, the widespread dislocation of life in the aftermath of the COVID-19 pandemic also ought to have been duly taken into account. This Court is of opinion that judicial notice ought to have been taken of the most unusual circumstances that prevailed during the relevant period of time, caused by the COVID-19 proliferation, while considering a plea of the kind that was before the Trial Court.
In the opinion of this Court ex debito justitiae, a refusal to set aside the order dated 08.07.2020 is not sustainable. At this stage, Mr. Dubey points out that there is an earlier order dated 27.01.2021 directing the suit to proceed ex parte, regarding which the revisionist has not claimed relief. This Court thinks that whatever be the orders directing proceedings to go ex parte are all required to be set aside in the interest of substantial justice. However, before doing so, this Court must say that the defendant shall, without fail, attend on every date fixed before the Trial Court and shall not take adjournment under any circumstance.
In the result, this Revision succeeds and is allowed. The impugned order dated 08.07.2020, is set aside and reversed. The Revisionists' application under Order IX Rule 7 CPC read with Section 151 CPC bearing Paper No.21 Ga, stands allowed. The Trial Court shall now proceed to try the suit expeditiously fixing one date every week. It is also made clear that any other order directing the suit to proceed ex parte shall also stand set aside. The plaintiff-respondents, contrary to the event, shall be entitled to costs of Rs.5,000/- which shall be paid within a period of 15 days of date.
Order Date :- 16.8.2021 Lbm/-