SANAULLA KHAN Vs. HANSRAJ

JUDGEMENT

(1.) This revision is directed against the trial Court's order setting aside the exparte order of eviction passed in H.R.C.No. 3033 of 1981.

(2.) The brief facts are as follows: The petitioner herein is the landlord in respect of the premises in question, which is a godown bearing No.13 situated at Kalasipalyam Layout in Bangalore City. The respondent, which is a registered firm was in occupation of the said premises as a tenant under the petitioner on a monthly rent of Rs. 500/-. The landlord filed H.R.C.No.3033 of 1981 before the Small Causes Judge, Bangalore City, seeking eviction of the tenant on the ground under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 (the 'Act'). By an order dated 24-9-1982 the tenant was placed exparte and the landlord's petition was allowed directing the tenant to deliver possession of the premises by 31-12-1982. On 29-1-1983 the tenant preferred an application Misc. No.67 of 1983 under Order 9 Rule 13 read with Section 151 of the C.P.C. seeking to set aside the said order. The said application is supported by the affidavit of one Rajeev Juneja, a partner of the firm of M/s. Hansraj and Co. (the tenant). It is, inter alia, averred that the landlord had fraudulently obtained an order of eviction without due service of notice of the petition upon the firm which is the tenant. It is stated that the godown 'is opened only for the purpose of either bringing in or taking out the goods, and that the business premises of the tenant is located at No.11, S.J.P. Road, Bangalore-2, which fact was within the knowledge of the landlord. It is denied that there was valid tender of notice sent to the godown address or that it was refused. In his objection statement the landlord denied that the exparte order of eviction was obtained by him without due notice. According to him, the notice issued to the tenant on the address of the premises, registered post was refused, as evident from the postal shara. It was further denied that he had furnished incorrect address of the tenant. On these pleadings the parties went to trial. Considerable evidence was let in by both the parties, on an appreciation of which the Court below has upheld the tenant's contention and set aside the exparte order of eviction passed in H.R.C.No.3033/1981.

(3.) Sri U.L. Narayana Rao, learned Counsel for the landlord has urged that in view of the evidence and material on record, the trial Court was not justified in setting aside the exparte order of eviction passed as early as on 24-9-1982. Referring to the proceedings in the H.R.C. case it is sought to be pointed out that the landlord had taken necessary steps from time to time for effecting service of notice upon the tenant, which, according to him, could not be served since it was deliberately evaded; and ultimately, the notice sent through registered post was also refused. The learned Counsel placed reliance on the provisions of sub-rule (3) of Rule 28 of the Karnataka Rent Control Rules 1961 (the Rules), to contend that in view of the shara of refusal on the registered cover, no further proof was necessary to establish due service of notice. As such it was not open for the tenant to question the validity of the said notice. On the other hand Sri K.G. Raghavan, learned Counsel for the tenant sought to justify the reasoning of the learned trial Judge in passing the impugned order.