JUDGMENT Anjani Kumar, J.
1. By means of present writ petition under Article 226 of the Constitution of India, the petitioner-tenant challenges the Order passed by the prescribed authority/VIIIth A.C.M.M., Kanpur Nagar in Misc. Rent Case No. 16/74 of 2001, whereby the application filed by the petitioner under Rule 32 and Section 34 of the U. P. Act No. XIII of 1972, here-in-after referred to as 'the Act' and also for Issue a writ, Order or direction in the nature of mandamus to the prescribed authority to allow the application filed by the petitioner-tenant, referred to above and set aside the Order dated 4th October, 2001 passed In Rent Case No. 92 of 1997.
2. Before coming to the facts of the filing of the present writ petition, It is necessary to state that when the matter was heard Sri Manish Kumar Nigam, who has put in appearance on behalf of the respondent, prays that the case may be taken up on Tuesday next i.e. 30th November, 2004. On 6th December, 2004, when the matter was taken up Sri Nigam made a statement that he does not want to file a counter-affidavit and the writ petition itself be finally disposed of at this stage, as the questions involved in the writ petition are questions of law. In this view of the matter, I have heard learned counsel appearing on behalf of the parties on merits as well.
3. The facts leading to the filing of present writ petition are that the respondent-landlord filed an application under Section 21 (1) (a) of the Act before the prescribed authority for the release of the accommodation in question on 15th December, 1997, which has been registered as Rent Case No. 92 of 1997. In the aforesaid case, petitioner-tenant has filed written statement and the affidavits were exchanged by the parties before the prescribed authority. It so happened that during the pendency of the release application, wife of the petitioner expired after the continuous illness for a long time and petitioner also suffered from paralytic attack. On 4th October, 2001, the petitioner who was neither in the contact of his counsel, nor was aware about the various dates fixed by the prescribed authority on account of the illness and death of the wife of the petitioner and therefore he could not attend the Court on 4th October, 2001. On 4th October, . 2001, the prescribed authority allowed the application filed by the landlord-respondent under Section 21 (1) (a) of the Act ex parte and the petitioner came to know about the aforesaid ex parte Order on 1st November, 2001. On 2nd November, 2001, the petitioner moved an application along with supporting affidavit for setting aside the said Order dated 4th October, 2001 under Rule 32, Section 34 of the Act, which was registered as Misc. Case No. 16/74 of 2001. The respondent-landlord filed objection to the aforesaid application on 12th April, 2002. Thereafter, the petitioner also filed affidavit of D. K. Srivastava, Advocate sworn in the month of January, 2003 and also rejoinder-affidavit in reply to the said objection. During the pendency of the aforesaid misc. case, the petitioner also filed an appeal under Section 22 of the Act on 31st May, 2002 against the Order dated 4th October, 2001, which has been registered as Rent Appeal No. 262/7 of 2002 for setting aside the ex parte Order dated 4th October, 2001. The aforesaid appeal filed by the petitioner-tenant was dismissed by the appellate authority on 22nd March, 2004 on the ground that the petitioner-tenant has not removed the defect pointed out by office in the appeal, therefore, the appeal No. 262/7 of 2002 was dismissed as defective appeal. The petitioner thereafter moved an application for restoration of the aforesaid rent appeal 262/7 of 2002 supported by an affidavit and also an application under Section 5 of the Limitation Act for condoning of delay in filing the appeal, which was registered as Misc. Case No. 257/74 of 2004. Meanwhile, the respondent-landlord also filed an application under Section 23 of the Act, which was registered as execution case No. 2/23 of 2004 for execution of the ex parte release Order dated 4th October, 2001. On 12th October, 2004, the application for recall under Rule 32. Section 34 of the Act filed by the petitioner-tenant was dismissed by the prescribed authority. On 4th November, 2004-, the petitioner moved an application for adjournment of the Execution Case No. 2/23 of 2004 and also the petitioner filed stay application along with affidavit in Rent Appeal No. 262/7 of 2002 for the stay of the operation of the Order dated 4th October, 2001. In the meanwhile, the prescribed authority allowed the application filed by the landlord-respondent in Execution Case No. 2/23 of 2004 and directed for the Issuance of Dakhalnama for the police possession. Thus, this writ petition.
4. By means of present writ petition the petitioner-tenant has made the following prayers, which are quoted below :
"(a) issue a writ, Order or direction in the nature of certiorari or any other proper writ, Order or direction quashing the Order dated 12.10.2004 (Annexure No. 12 to the petition) passed by Prescribed Authority/VIIIth A.C.M.M., Kanpur Nagar in Misc. Rent Case No. 16/74 of 2001 rejecting the application of the petitioner filed under Rule 32 and Section 34 of the U. P. Act No. XIII of 1972. filed, inter-alia, for setting aside the Order dated 4.10.2001 passed in Rent Case No. 92 of 1997 ;
(b) issue a writ, Order or direction in the nature of mandamus or any other proper writ, Order or direction commanding the Prescribed Authority /VIIIth A.C.M.M., Kanpur Nagar to allow the application filed by the petitioner under Rule 32 and Section 34 of U. P. Act No. XIII of 1972 registered as. Misc. Case No. 16/74 of 2001 and setting-aside the Order dated 4.10.2001 passed in Rent Case No. 92 of 1997 allowing the release application filed by the respondent for the release of the disputed accommodation, situated at 13/359, Parmat, Kanpur Nagar.
(c) issue any other writ, Order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case in the interest of justice ;
(d) award costs of the petition in favour of the petitioner."
5. It would be apparent from the prayers made by the petitioner in this writ petition, referred to above, that the petitioner's application for setting aside the ex parte Order dated 4th October, 2001 was rejected by the prescribed authority and it is this order, which is sought to be quashed by means of present writ petition. During the pendency of the application for setting aside the ex parte Order dated 4th October, 2001, the petitioner has filed an appeal being Rent Appeal No. 262/7 of 2002, which was reported to be a defective appeal. Since the petitioner's appeal was found to be defective, no interim Order staying the execution of the Order dated 4th October, 2001 was passed. The respondent-landlord, in the meantime, filed an application for execution of the Order dated 4th October, 2001. which has been registered as Execution Case No. 2/23 of 2004. During the pendency of the Execution Case No. 2/23 of 2004, the petitioner's appeal No. 262/7 of 2002 was dismissed as defective appeal. The petitioner, in the meatime, file an application for setting aside the Order dismissing the petitioner's appeal as defective appeal, along with the affidavit and application under Section 5 of the Limitation Act for condonation of delay in filing the appeal, which was the defect pointed out on which appeal No. 262/7 of 2002 was dismissed. This application for setting aside the dismissal of the defective appeal No. 262/7 of 2002 is pending. In the meanwhile the landlord-respondent filed an application for expediting the execution matter i.e. Execution Case No. 2/23 of 2004. On 17th November, 2004, the prescribed authority allowed the application filed by the landlord, namely, execution Case No. 2/23 of 2004 and directed the issuance of the Dakhalnama for possession of' the accommodation in dispute.
6. Learned counsel appearing on behalf of the petitioner-tenant argued that the action of the prescribed authority in rejecting the application filed by the petitioner-tenant for setting aside the ex parte Order dated 4th October, 2001, is contrary to the law laid down by this Court and the Apex Court and therefore the Order deserves to be quashed. In support of his contention, learned counsel appearing on behalf of the tenant-petitioner relied upon a decision of this Court in Bachchan Lal Gupta v. IVth Additional Civil Judge, Kanpur Nagar and Ors., 1992 (1) ARC 84, particularly paragraph 2, which is quoted below :
"2. The impugned Order reveals that the court below has refused to apply Rule 32 to the application moved by the petitioner before him on the ground that the petitioner had appeared .before him and had sought adjournment and his conduct was not free from doubt. However, it is admitted that when the Order was passed or the arguments were heard, the petitioner was not present before the Court below. As such the Order passed by the court below will be ex parte against the petitioner to which Rule 32 to the rules would apply and the petitioner is entitled to make an application under the said rule. The court below was not bound to set aside the ex parte Order if sufficient cause was not shown for setting aside the ex pane order. It could set aside the ex parte Order only on being satisfied that sufficient cause did exist for setting aside the ex parte order. This is a matter which was 'within the domain of the court below and would depend on the facts of the case which would be unfolded before the court below by the learned counsel for the parties. It was, however, wrong that Rule 32 has no application to the facts of the case. Once an ex parte Order is passed, Rule 32 of the rules provides a remedy which remedy can be availed of by the litigant. Learned counsel for the respondents submits that the petitioner had alternative remedy of appeal, therefore, he should have exhausted that remedy first and this writ petition is not maintainable. The filing of an appeal is not only remedy. The petitioner has remedy under Rule 32 also. Therefore, it is not case where bar of exhaustion of alternative remedy will stand in the way of the petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. This being so, the writ petition is maintainable."
7. Learned counsel for the petitioner-tenant relying upon a decision in Mohd. Farooq v. Prescribed Authority and Ors., 1992 (1) ARC 485, submitted that "the petitioner had given cogent reasons for his absence before the prescribed authority on the date when the application filed by the landlord under Section 21 (1) (a) of the Act was allowed ex parte by the prescribed authority." Learned counsel for the tenant-petitioner further relied upon a decision of the Apex Court in Ramji Dass and Ors. v. Mohan Singh, 1978 ARC 496. wherein the Apex Court has held, which is reproduced below :
"An ex parte decree passed eight years ago was set aside by the Court which passed it and the Order was confirmed in revision by the District Court. The High Court in exercise of its powers under Section 115, C.P.C. set aside on various grounds. After having heard counsel, we are inclined to the view that, as far as possible, Courts' discretion should be exercised in favour of hearing and not to shut out hearing. Therefore, we think that the Order of the High Court should not have been passed in the interests of justice which always informs the power under Section 115, C.P.C. We, therefore, set aside that Order and also the ex parte decree. We direct the trial court to take back the suit on file and proceed forthwith to trial. The suit is very old and it should be disposed of within six months ' from the receipt of this Order by the trial court. We further direct that as a condition for setting aside the ex parte decree, the appellants shall pay to the respondent, within one month from today, a sum of Rs. 250 by way of costs."
8. Learned counsel for the tenant-petitioner relied upon decision in Siya Ram v. IIIrd Additional District Judge, Kanpur Nagar, Kanpur and Ors., 1990 (2) ARC 490. Learned counsel for the petitioner-tenant relying upon the decision in G.P. Srivastava v. R. K. Raizada and Ors., 2000 (1) ARC 542 submitted that "if the cause shown is sufficient for the absence of the party on the date fixed on which the ex parte Order was passed, the previous conduct of the party is relevant and should not have been taken into account." "If sufficient cause is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or Intentional. For the absence of a party in the case of other side can be compensated by adequate costs and the lis decided on merits."
9. Learned counsel for the petitioner-tenant further demonstrated from the Order impugned passed by the prescribed authority refusing to set aside the ex parte Order that in view of the law laid down by the Apex Court in the case of Ramji Dass (supra), the prescribed authority ought to have set aside the ex parts Order and allowed the application filed by the petitioner after setting aside the Order dated 4th October, 2001 and the matter would have been heard on merits rather than on technicalities.
10. As against this, learned counsel appearing for the respondent-landlord contested the claim of the petitioner's counsel and submitted that the application for setting aside the ex parte Order under Order IX, Rule 13 of the Code of Civil Procedure was not maintainable. To me it appears that in view of the decisions of this Court relied upon by learned counsel for the tenant-petitioner, referred to above, this argument deserves to be rejected and is hereby rejected. Learned counsel for the landlord thereafter submitted by citing decisions referred to in the Order impugned in the present Writ petition that the view taken by the prescribed authority refusing to set aside the ex parte Order was perfectly justified, as the petitioner has not been able to show that there was sufficient cause for his absence on the date fixed when the prescribed authority decided the matter ex parte. A perusal of the Order passed by the prescribed authority clearly demonstrates that the prescribed authority has considered the previous conduct of the petitioner also while refusing to set aside the ex parte Order i.e. 4th October, 2001. Learned counsel for the landlord further submitted that since the petitioner has not been able to explain the cause for his absence to be sufficient cause, the view taken by the prescribed authority while refusing to set aside the ex parte Order in any way cannot be said to be illegal, which may be Interfered with by this Court in exercise of power under Article 226 of the Constitution of India.
11. I have given my considerable thoughts to the arguments advanced on behalf of learned counsel appearing on behalf of the parties. In my opinion, the law laid down by the Apex Court In Ramji Dass case (supra), which clearly lays down that the authorities should try to dispose of the matter on merits, rather than on technicalities, therefore the view taken by the prescribed authority while refusing to set aside the ex parte Order dated 4th October, 2001 deserves to be quashed, firstly for the reason that the prescribed authority has taken into consideration the previous conduct of the petitioner and secondly applying the ratio of the decision in the case of Ramji Dass (supra). In this view of the matter, I set aside the Order dated 4th October, 2001, passed by the prescribed authority and the Order dated 12th October, 2004, whereby the petitioner's application for setting aside the Order dated 4th October, 2001 has been rejected by the prescribed authority. Since the orders dated 4th October, 2001 and 12th October, 2004 are quashed, the rent appeal filed by the petitioner and the Order passed by the appellate authority rejecting the petitioner's Appeal No. 262/7 of 2002 dismissed on 22nd March, 2004 are also quashed and the appeal filed by the petitioner is dismissed as having become infructuous. The matter will now go back to the prescribed authority, who will decide the application filed by the landlord-respondent under Section 21 (1) (a) of the Act on merits after affording an opportunity of hearing to the petitioner in accordance with law. Since sufficient time has elapsed, the prescribed authority is directed to decide the matter within a period of six months from the date of presentation of a certified copy of this Order before prescribed authority.
12. In the result, this writ petition succeeds and is allowed. The orders dated 4th October, 2001 and 12th October, 2004, passed by the prescribed authority (Annexures Nos. 3 and 12, respectively, to the writ petition) are quashed and the order dismissing the petitioner's Appeal No. 262/7 of 2002 as defective is also set aside. The appeal filed by the petitioner is dismissed as having become infructuous. The prescribed authority is directed to decide the application filed by the landlord-respondent under Section 21 (1) (a) of the Act in accordance with law after affording an opportunity of hearing to the petitioner within a period of six months' from the date of presentation of a certified copy of this order before him.