Kanwaljit Singh Ahluwalia, J.@mdashThe present revision petition is filed by the landlord who had instituted the eviction petition seeking ejectment of the respondents from the demised premises on the grounds of non payment of rent w.e.f. 28.3.2000 and personal necessity. The petitioner/landlord is aggrieved against two orders passed by the Rent Controller, Ludhiana, firstly dated 26.10.2009 (Annexure P-1), whereby his evidence was closed by order for the reason that neither any witness of the landlord was present nor was cost paid. This impugned order dated 26.10.2009 (Annexure P-1) was made subject matter of review by fling an application under Order 47 Rule 1 read with Section 151 CPC (Annexure P-2), but the same was also dismissed, vide order dated 16.12.2009 (Annexure P-4) on the ground that the Rent Controller has no power to review his own order (Annexure P-1). Furthermore, the petitioner had not paid the costs of Rs. 300/- on 1.10.2009, when the same was due and subsequent costs of Rs. 500/- was also not paid on 26.10.2009. It will be apposite here to reproduce order dated 1.10.2009 and 26.10.2009 :-
Present: Counsel for the parties
Proxy counsel for the plaintiff came present on 3.30 p.m. and requested for an adjournment and also stated that no evidence is present and he could not deposit the costs of Rs. 300/- with the free legal aid and requested for one adjournment. In the interest of justice, one last opportunity is provided to the plaintiff subject to costs of Rs. 500/- for entire evidence for 26.10.2009 failing which the evidence shall be closed by order.
Sd/- Yukti Goyal
JMIC/Ldh.
1.10.2009
XXX
Present: Sh. Surinder Dogra, Advocate for the petitioner.
Sh. K.R. Sikri, Advocate for the respondent.
Neither any witness has come present nor cost has been paid. A date is requested. No ground is made out for adjourn the case further for petitioner evidence. Accordingly, evidence of the petitioner is closed by order of the Court. Now case is adjourned to 12.11.2009 for respondent evidence on filing of PF/DM and list of witnesses, if any.
Dated: 26.10.2009
Sd/- (Yukti Goyal)
JMIC
2. Mr. Amit Rawal, Advocate, appearing for the petitioner, has submitted that Section 35-B CPC is not applicable to the proceedings arising out of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as "1949 Act") as the Rent Controller is a persona designate and is entitled to follow any procedure which, in law, can be termed to be either reasonably correct or can promote justice. To fortify this submission, a reliance has been placed upon
...Section 35-B is not applicable as it is but the Rent Controller is a persona designate and is entitled to follow any procedure which in law can be termed to be either reasonably correct or can promote justice. S. 35-B is contained in Code which regulates the procedure of civil courts and it is open to the Rent Controller to follow a procedure laid down in any of the statutes for his guidance. Under the circumstances, even if he has followed something written in Section 35-B of the Code to regulate his procedure, it cannot be held that he has exceeded his jurisdiction.
3. It is submitted that since Section 35-B CPC is not strictly applicable and the Rent Controller has to device his own procedure, therefore, eviction petition ought not to be dismissed for non payment of costs. Further reliance has been placed upon Raghbir Singh v. Karam Singh 1990(2) R.R.R. 42 :1989 PLJ 457 to say that the Court which passed an order u/s 35-B CPC, striking off the defense for non payment of costs, can recall/review its order and/or extend time for payment of costs u/s 151 CPC and/or Section 148 CPC, on sufficient cause being shown but such an application should be a bona fide one and should be filed immediately, when the impugned order is passed. Further reliance has been placed upon Municipal Committee, Kharkhoda v. Bhim Singh 1987(1) R.C.R. (Rent) 442 : 1987(*) R.R.R. 405:1987(1) PLR 435 to contend that if the Court is satisfied, it has power to recall the order striking off the defense and grant more time for payment of costs.
4. Mr. Sunil Chadha, Advocate, appearing for the respondents, has contended that the decision rendered in Municipal Committee, Kharkhoda''s case (supra) is not attracted on the facts of the present case as the Rent Controller has no power to review or recall his order. In support of this, a reliance has been placed upon Jagdish Parshad v. Mehar Chand and Another 1993(1) RCR459 wherein it was held that the power to review is not an inherent power but such a power must be conferred by Statute. The 1949 Act is a complete code and its provisions clearly indicate that the CPC will not be intended to be generally applicable to the proceedings under the 1949 Act. Therefore, it is submitted that rightly the Rent Controller has not recalled his order, whereby the evidence of the petitioner was closed.
5. Learned counsel for the petitioner has placed reliance upon a Full Bench of this Court in Anand Parkash v. Bharat Bhushan Rai and Another 1982(1) R.C.R. (Rent) 1 : 1981 PLR 555 to urge that where the costs are not paid as a result of circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power u/s 148 CPC in favour of the defaulting party if a strong case is made out for exercising such jurisdiction.
6. Thus, from the arguments raised and the judgments relied upon by learned counsel for the parties, two following issues arise for the consideration of this Court :-
A) Whether the Rent Controller can review his order whereby the evidence of petitioner/landlord was closed?
B) What is the effect of non payment of costs?
7. There is no doubt that the 1949 Act vests no power in the Rent Controller to review his order but the question which this Court has to consider is as to whether the impugned order dated 26.10.2009 (Annexure P-1), which has been reproduced above, whereby the evidence of the petitioner/landlord was closed, is a final order or not. Learned Single Judge of this Court in State of Punjab and Others v. Ajmer Singh 2009 (2) RCR 169 stated that the order whereby the evidence of plaintiff was closed is not a final order, but is purely a docket order, therefore, the Court can review its order and reopen the case which is closed. It has been held by K. Kantian. J. in the said judgment, as under:-
...8. The above directions are given at the stage of admission only to ensure that fair opportunities are always given to the parties for examination of witnesses and the errant conduct of parties are to be dealt with suitably in other means outlined above. Closure of evidence and directing arguments or refusing to reopen a case that was directed as closed seldom accord with fair procedure and justice.
8. Furthermore, if the arguments advanced by learned counsel for the respondents that since there is no power of review and the provisions of CPC cannot be invoked to review the order, is accepted, then the necessary inference which is to be drawn is that Section 35-B CPC for striking off the defense due to non payment of costs shah also not be attracted. Therefore, this Court is of the view that the provisions of CPC are not strictly applicable to the rent proceedings and the Rent Controller, being persona designate is not bound by the provisions of Section 35-B CPC and if the cost is not paid, further opportunity can be granted to the erring litigant to condone the lapse on his part especially when the order whereby the evidence was closed is not a final order but is an order passed for advancement of the proceedings.
9. In the context of what has been observed above, taking into consideration the principles of fair play and balance of equities, it will be in the interest of justice if one opportunity is granted to the petitioner/landlord to conclude his entire evidence on the date to be fixed by the Rent Controller, at his own risk and responsibility. For causing delay in culmination of the proceedings and for condonation of non payment of costs, the petitioner/landlord is saddled with the cost of Rs. 5,000/-. On payment of costs, as stated earlier, the Rent Controller shall provide one opportunity to the petitioner to conclude his entire evidence, at his own risk and responsibility.
10. To restate the answer to the two questions, formulated in this order, it is held that Section 35-B CPC will not bind the Rent Controller, who is a persona designate and can device his own procedure for dispensation of justice and secondly, order closing the evidence being an order, which is passed for the advancement of the trial can always be recalled, subject to just consideration.
With the observations made above, the present revision petition is disposed of.
