RAVI BANSAL Vs. RAJESH KUMAR

JUDGEMENT

(1.) Heard Sri K.K. Arora, learned Counsel for the petitioner and Sri Komal Mehrotra. learned Counsel for contesting respondent.

(2.) The S.C.C.Suit No. 72 of filed by the petitioner-landlord for arrears of rent, ejectment and damages was decreed ex-parte vide judgment dated 22.1.2001. An application dated 22.3.2001 under Order 9, Rule 13 of the Code of Civil Procedure to recall the same was moved by the respondent-tenant on the' ground that he was never served summons of the suit and h4 no notice and knowledge of the same. An application under Sec. 5 the Limitation Act was also moved seeking condonation of delay. The application under Order 9, Rule 13 of the Code was also accompanied by an application under Sec. 17 of the Provincial Small Causes Court Act with a prayer to accept security in respect of the decretal amount. The application was contested by the petitioner-landlord on the ground. that the respondent-tenant had full knowledge of the proceeding of the suit. It was stated that in Suit No. 81 of 2000 filed by the tenant-respondent seeking injunction. an affidavit was filed by the landlord-petitioner wherein a categorical mention about S.C.C. Suit No. 72 of 2000 was made in pargraph 13. Not only the date fixed in the suit was mentioned but the copy of the plaint was also tiled as annexure to the said affidavit.

(3.) The Trial Court vide order dated 21.2.2004 dismissed the application under Order 9 Rule 13 on the ground that tenant-respondent had full knowledge about the proceeding of the suit and he deliberately did not participate in the same. Feeling aggrieved, a revision was filed. The Revisional Court vide order dated 17.2.2006 has allowed the same and remanded the case back to the Trial Court to be decided on merits.