T.P. VENKATACHARY Vs. M.N. PARTHASARATHY

JUDGEMENT

(1.) THIS is a petition to revise the order of the Appellate Authority functioning under Tamil Nadu Act XVIII of 1960, dated 21st December, 1978, allowing H.R.A. No. 319 of 1978 filed by the respondent herein against the order of the Rent Controller, dated 31st March, 1978 made in M.P. No. 166 of 1978.

(2.) AN ex parte order of eviction was passed against the respondent herein by the Rent Controller on 12th September, 1975. On 3rd November, 1977, the respondent herein filed a petition for setting aside the ex parte order of eviction. In that petition, he stated that on 11th September, 1975 an agreement was entered into between him and the petitioner herein, under which he agreed to pay an enhanced rent and pay the arrears of rents and the petitioner in his turn agreed to withdraw the eviction petition, and that was the reason why he did not appear in the rent control petition, and he learnt only on 10th October, 1977 that contrary to the undertaking given by the petitioner he pursued the rent control petition and obtained an ex parte order of eviction on 12th September, 1975. Thus, putting forward the ground that only on 10th October, 1977, he had knowledge of the passing of the ex parte order of eviction, he filed the petition on 3rd November, 1977. When the office of the Rent Controller returned the petition to show as to how the petition was in time, he filed another petition, numbered as M.P. No. 168 of 1978, purporting to be under Section 5 of the Limitation Act, requesting the Rent Controller to excuse the delay if for any reason the Rent Controller came to the conclusion that there was delay in filing the petition to set aside the ex parte order of eviction. The Rent Controller, by his order, dated 31st March, 1978, dismissed M.P. No. 168 of 1978, holding that Section 5 of the Limitation Act will have no application, and equally dismissed M.P. No. 166 of 1978 stating that the reason set out by the respondent that he became aware of the ex parte order of eviction only on 10th October, 1977 was not sufficient since the summons in the petition had been received by him, and since the petition to excuse the delay in filing the petition to set aside the ex parte order of eviction had been dismissed, this petition also had to be dismissed.

(3.) AT the outset, the learned Counsel for the petitioner contended that the respondent herein having filed an independent petition under Section 5 of the Limitation Act in M.P. No. 168 of 1978 and that petition having been dismissed, without taking up the order in appeal, he could not have preferred an appeal only against the order in M.P. No. 166 of 1978, and that the Appellate Authority had no jurisdiction to allow that appeal and set aside the ex parte order of eviction. I am of the view that this argument is misconceived having regard to the provisions contained in Rule 12(3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974.