(1.) THIS Civil Revision Petition is directed against the order of the Appellate Authority (VII Judge, Court of Small Causes), Madras, in R.C.A. No. 865 of 1991. The landlord is the petitioner. In R.C.O.P. No. 2407 of 1989, he filed an application under Ss. 10(2)(1) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, as amended by Act 23 of 1973 (hereinafter referred to as ?the Act), praying for an order of eviction against the respondent herein. In that eviction petition, the respondent was served and on 6.10.1989, the Rent Controller passed an order to the effect that the respondent was served and vakalat was also filed on his behalf. The matter was thereupon adjourned to 4.11.1989 for filing a counter, on that date time for filing counter was extended upto 2.12.1989, on which date, there was no representation on behalf of the respondent, but nevertheless, time for filing counter was extended upto 21.12.1989. Since on 21.12.1989 counter on behalf of the respondent was not filed, the respondent was called and found to be absent and he was set ex parte and R.C.O.P. No. 2407 of 1989 was posted for evidence on 6.1.1990. On that date, the presiding officer was on casual leave and the proceeding was, therefore, reposted to 12.1.1990 and on that date, after recording the evidence of the petitioner, the Rent Controller passed an ex parte order of eviction against the respondent. To set aside the ex parte order so passed, the respondent herein filed M.P. No. 427 of 1991 on 23.4.1991 under Rule 12(3) of the Rules framed under the Act. In the affidavit filed by the counsel for the respondent on his behalf, it was stated that though he had filed a vakalat in the R.C.O.P., his efforts to contact the respondent through post failed and the deponent to the affidavit was in indifferent health and could not contact the respondent till 22.4.1991. It was also further stated that the deponent to the affidavit understood that the respondent was set ex parte on 6.1.1990 and an ex parte order of eviction was also passed on 12.1.1990. In addition, in paragraph 3 of the affidavit, it was also mentioned that there had been some correspondence between the parties and the respondent had paid the entire arrears of rent upto date and that the petitioner also undertook not to proceed with the execution proceedings, but that suddenly the respondent received a letter on 22.4.1991 and the deponent to the affidavit became aware of the execution proceedings. Claiming that the non-appearance of the respondent or his counsel was neither wilful nor wanton, but due to the misleading statement of the petitioner herein, the respondent prayed that the ex parte order of eviction should be set aside. THIS application was opposed by the petitioner on the ground that it was plainly barred by limitation as it had been filed after a delay of more than one year. It was also further stated that the affidavit sworn to by counsel cannot be accepted and that in any event, the allegations therein are all incorrect and untrue and would not justify the setting aside of the ex parte order of eviction. The Rent Controller found that the respondent had not made out a case for setting aside the ex parte order of eviction and that the application praying for that relief was also barred by limitation. In the view so taken, the Rent Controller dismissed the application. Aggrieved by that order, the respondent preferred an appeal in R.C.A. No. 865 of 1991. The Appellate Authority found that it was unnecessary to investigate whether the counsel for the respondent was not well or whether there were sufficient causes for the absence of the respondent on that date, but that what deserved to be looked into was how far the respondent was affected by the absence of his counsel who was to appear for him. So, viewing the matter, the Appellate Authority found that the counsel for the respondent was unable to get in touch with respondent and, therefore, the ex parte order of eviction should be set aside. The appeal was, therefore, allowed and the ex parte order of eviction was set aside. The petitioner has challenged the correctness of that order in this Civil Revision Petition.
(2.) THOUGH several grounds had been urged by learned counsel for the petitioner in challenging the correctness of the order of the Appellate Authority, in my view, it is unnecessary to refer to all of them. Learned counsel for the petitioner strenuously contended that the application filed on 23.4.1991 to set aside the ex parte order of eviction passed on 12.1.1990 was barred by limitation. Referring to Rule 12(3) of the Rules framed under the Act, learned counsel submitted that the application not having been filed within thirty days from the date of the ex parte order of eviction, was barred. On the other hand, learned counsel for the respondent maintained that the respondent became aware of the passing of the order of eviction only on 22.4.1991 and the application was filed the next day and, therefore, the application was in time.