Case Note & Summary
The petitioners, landlords of the suit premises, filed a suit for possession against the tenant (respondent no.1) and alleged subtenants (respondent nos.2-4) in the Small Causes Court, Pune. The tenant remained absent on the date of hearing, and the trial court recorded evidence ex parte. The trial court held the tenant a defaulter under Section 12(3)(a) of the Bombay Rent Act and also found subletting and profiteering, passing a decree for arrears and possession. The tenant's appeal to the District Court was dismissed. He then filed a second appeal which was converted to a writ petition but later withdrawn. Meanwhile, the tenant filed an application under Order 9 Rule 13 CPC to set aside the ex parte decree, which was dismissed by the trial court. The tenant appealed, and the appellate court allowed the appeal, setting aside the decree and restoring the suit. The landlords challenged this order in the present writ petition. The High Court examined whether the tenant had shown sufficient cause for his absence. The trial court had noted that the tenant was aware of the proceedings and had even filed a written statement, but failed to appear on the final hearing date. The appellate court's reasoning that the decree was not ex parte because the tenant had filed a written statement was erroneous; the decree was ex parte as the tenant was absent when evidence was recorded. The High Court held that the tenant did not provide sufficient cause for his absence, and the appellate court's order was unsustainable. The writ petition was allowed, setting aside the appellate court's order and restoring the trial court's dismissal of the Order 9 Rule 13 application.
Headnote
A) Civil Procedure - Ex parte Decree - Order 9 Rule 13 CPC - Sufficient Cause - The tenant failed to appear on the date of hearing despite knowledge of the proceedings; the trial court recorded evidence in his absence and passed a decree. The appellate court set aside the decree without proper justification. Held that the tenant must show sufficient cause for non-appearance, which was not established (Paras 5-7). B) Rent Control - Eviction - Section 12(3)(a) Bombay Rents (Hotels and Lodging Rates Control) Act, 1947 - Default in Rent - The trial court found the tenant a defaulter and passed a decree for arrears and possession. The appellate court's order setting aside the decree was reversed. Held that the decree for possession on ground of default was valid (Paras 2-3). C) Rent Control - Subletting and Profiteering - Bombay Rent Act - The trial court also decreed on grounds of subletting and profiteering. The appellate court's interference was unwarranted. Held that the findings on subletting and profiteering were not challenged effectively (Paras 2-3).
Issue of Consideration
Whether the appellate court was justified in setting aside an ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure, 1908 when the tenant failed to show sufficient cause for his absence.
Final Decision
The writ petition is allowed. The impugned order dated 24 April 1992 passed by the 8th Additional District Judge, Pune in Miscellaneous Civil Appeal No.314 of 1987 is set aside. The order of the Small Causes Court, Pune dated 16 October 1998 dismissing the application under Order 9 Rule 13 CPC is restored.
Law Points
- Order 9 Rule 13 CPC
- Ex parte decree
- Sufficient cause
- Bombay Rent Act Section 12(3)(a)
- Subletting
- Profiteering
