BABU RAM Vs. RAHIMULLAH MAHOMMAD

JUDGEMENT

(1.) Heard Sri Mohit Saxena, Advocate, holding brief of Sri Ajit Kumar, learned counsel for the petitioners. Though the case has been called in revised and names of Sri S.A.Alam, Sri S.A.Shah and Sri S.A.Khan have been shown in the cause list as counsel for the respondents, but none appeared on behalf of the respondents.

(2.) This is a writ petition filed by landlord in relation to a residential accommodation, in respect whereto S.C.C. Suit No.12 of 1986 was filed by Raj Pal Singh (petitioners' predecessors in interest) against respondent No.1 Rahimullah (now deceased and substituted by his legal heirs) for ejectment, recovery of rent and damage and mesne profits. The suit was decreed ex parte on 23.2.1987. Raj Pal Singh died and was substituted by his legal heirs, some of whom also further died and have been substituted by legal heirs. The ex parte decree dated 23.2.1987 was put in execution vide execution case No. 6 of 1987. Executing Court ordered for handing over possession of accommodation in question to the decree holder. The decree was executed on 24.9.1988 giving possession to the landlords of accommodation in question.

(3.) The respondent no.1 filed application under Order IX Rule 13 C.P.C. on 27.9.1988 along with an application under Section 5 of Limitation Act. It was contested by petitioner-landlords by filing objection/affidavits and in order to prove service of notice/summons upon the respondent-tenant, decree holders also summoned Postman concerned whose statement was recorded in the trial Court on 27.11.1992, copy whereof has been filed as Annexure 5 to the supplementary affidavit. He acknowledged and endorsed testimony of the fact that respondent-tenant refused to receive summon and he made this endorsement on the registered letter's envelope accordingly. The trial Court, however, recalled ex parte decree on 19.8.1994 whereagainst petitioner-landlords preferred revision i.e. S.C.C.Revision No.86 of 1994, which was allowed on 3.10.1994 remanding the matter to Trial Court to see whether restoration application is maintainable when possession of the rented property was handed over to landlords and the building stood demolished thereafter.