Exparte evidence
pawan kumar
(Querist) 08 March 2012
This query is : Resolved
suit for ejectment of tenant was filed for sub letting and non payment of rent.defendent defence was struck of as he did not appear in any of dates fixed for the case nor he filed w/s except that he put in first appearance after he got summons.during pendency of case sub lettee filed case against me in different court that he is independent tenant and should be allowed to stay. on my plea court dismissed his application and they vacated the portion in their possession and handed over the keys to me against my acknowledgement. since the tenant did not pay rent nor vacated the portion in his possession the filed case is going on. the portion vacated by sub tenants is being used by me. the case was at stage of ex parte evidence of plaintiff. on day of ex parte evidence tenant moved an application that exparte evidence of plaintiff be set aside.court asked my advocate and he told that tenant request to set aside exparte evidence be acceded to subject to costs.on this court adjourned the case for arguments and assessment of rent. pl guide me on 1. stand taken by my advocate is correct or not as he tells me that in case i did not agree for setting aside exparte evidence case will linger on and to short cut he has given concurance for setting aside the exparte evidence of plaintiff.2 for what period i should claim renti.e from date of default to tilldate or from date of default to date sub lettee vacated the portion in their possession as after this portion vacated by sublettee is in my possession.3. to delay the case further tenant may not again come on next dates fixed for arguements and assessment of rent.4. can he file his w/s now to take back the case to avoid assesssment of rent. in this regard i may state that despite various opportunities he didnot file w/s and imposing costs his defence was struckof.5 in case tenant does not appear on adjourned dates can court assess rent of his own and ask him to deposit the same. 6 how many times ex parte evidence or decree can be set aside in the given case. i have these doubts as tenant is enjoying property without payment of rent and is delaying the case to unreasonable period.rent arrears have mounted up to substantial amount
Adv.R.P.Chugh
(Expert) 08 March 2012
Dear Mr.Kumar,
I'd answer this in the following manner :-
1. I don't think it's prudent to have conceded to your tenant's request for setting aside ex parte. When he contests it automatically lingers on for much longer, and with that wilful contempt for proceedings that he has shown - he did not deserve that indulgence (even with costs).
On failure to file W/S - there is a constructive admission of all what you have stated in the plaint, if you could file an application u/o 12 R 6/S.58 Indian Evidence Act/O8 R5(2)/O8 R10 CPC - for judgment on the basis of such implied admission, instead of adopting such offensive line of action you are allowing him a luxury he is not entitled to.
It is preposterous to suggest that proceedings would get over fast if you allow him to contest. It is affront to common sense.
2. You are entitled to amount till date
