Judgment:
ORDER
K.A. Abdul Gafoor, J.
1. Tenants-revision petitioners were called for hearing in a petition filed under Section 11(3) of the Buildings (Lease and Rent Control) Act, on 19.10.2000. Both the tenants did not appear. Accordingly they were declared ex-pane. Later on 21.7.2001 an order was passed directing eviction. The landlord moved execution petition later. It was at that stage the revision petitioners-tenants moved I.A.Nos. 1859 and 1860 of 2002 before the Rent Controller to set aside the ex-pane order of eviction passed on 21.7.2001, and to condone the delay of 326 days in that regard. Both these petitions were jointly disposed of by the Rent Controller finding that even Exhibits Al and A2 medical certificates produced in respect of each of the petitioners did not explain reason for their absence on 19.10.2000 when they were called for hearing. An appeal was taken. The appellate authority also concurred with the said finding.
2. It is contended by the revision petitioners that though they were declared exparte on 19.10.2000 by a specific order, an order of eviction appreciating the evidence adduced by the respondent-landlord was passed only on 21.7.2001. The former order was not challenged invoking Rule 7 of Order IX of the Code of Civil Procedure, 1908. The revision petitioners attempted to invoke Rule 13 of Order IX to impugn the latter order. Therefore, they were not called upon to show sufficient reason why they did not appear in court, based on notice, on 19.10.2000. They did have only obligation, in such circumstances, to explain why they did not appear when the evidence was adduced on 18.7.2001 which resulted in an order of eviction on 21.7.2001.
3. We are unable to accept this contention because procedure to be adopted by the trial court when the plaintiff appears and defendant does not chose to appear is provided in Rule 6 of Order IX. It is made applicable to the rent control proceedings in terms of Section 23(1)(h) of the Buildings (Lease and Rent Control) Act, 1965. It provides that: 'where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-,' the suit be heard ex-parte if summons was duly served. The key words appearing in this rule are 'when the suit is called on for hearing'. It is on that date the defendant did not appear. If he had chosen not to invoke the remedy available under Rule 7, but has chosen to invoke Rule 13 of Order IX, even then, going by that provision he has to show why he was prevented 'from appearing when the suit was called on for hearing', the very same date mentioned in Rule 6. That means, even if one invokes that remedy, the obligation cast on him is again to explain why he was prevented from appearing on the initial date of hearing when he was called to appear; and not on the date when the evidence was taken. Therefore, that contention shall have to be rejected.
4. It is further contended that even though the petitioners were set ex-parte by the Rent Controller on 19.10.2000, the petition was later dismissed for default on 13.2.2001 and was restored later. In such circumstances his obligation to explain why he did not appear on 19.10.2000 does not remain. This is also not acceptable for the only reason that under Section 20 of the Buildings (Lease and Rent Control) Act we are called upon to consider as to the irregularity and impropriety of the order impugned. If this contention was not specifically raised and urged before the Appellate Authority, we cannot accuse of the appellate order in not considering this aspect. Therefore, on that ground the revision petitioners cannot succeed. In the result, the revision petition has to fail.
5. At this point of time, the revision petitioners, who are conducting a Computer Institute in the tenanted premises, prayed for reasonable time to give vacant possession of the building to the respondent-landlord. We are satisfied that a period of three months in this regard shall have to be given to them. It shall be subject to the following conditions:
i. The revision petitioners shall pay the entire arrears of rent, if any, as on today, within three weeks from today.
ii. They shall continue to pay the rent for the ensuing three months on every 10th of the respective months.
iii. They shall file an undertaking before the execution court in the form of an affidavit that they will surrender the building on expiry of three months from today, without any objection and that they will not put the tenanted premises into the possession of any one else. The undertaking shall be filed within two weeks from today before the execution court. It shall also contain their preparedness to pay rent for the period of occupation allowed in this order.
iv. In case of non compliance of any of these conditions, the land lord will be free to move the execution court, to get the vacant possession of the building.