G S RAMCHANDRAN Vs. M M RAJADHYAKSHA

JUDGEMENT

(1.) The petitioner was the defendant in R.A.E. Suit No. 663/2086 of 1981 filed by the respondent in the Court of Small causes at Bombay for possession of an apartment Bearing No. 7 in a building called Vatsalganga. The said building is situated on Plot No. 124 at Sion in Bombay. The said apartment will hereinafter be referred to as "the suit premises". The suit was filed under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as "the Bombay Rent Act". It was alleged by the respondent that the petitioner was the tenant of the suit premises and had committed default in the payment of the arrears of rent warranting a decree for possession. The suit was decreed ex parte on the ground that the petitioner, though served with summons of the suit, had remained absent on the date of the hearing. Originally the summons had been made returnable on 28th of July, 1981, but subsequently the date of the hearing was changed to 7th of September, 1981. The summons was sought to be served, according to the respondent, on the petitioner on 12th of August, 1981 on which day the petitioner refused to accept the summons. The bailiff of the Court of Small Causes resorted to the provisions contained on Order 5, Rule 17 of the Code of Civil Procedure and pasted a copy of the summons on the outer door of the apartment in which, a according to the bailiff, the petitioners was shown to be residing.

(2.) On 7th of September, 1981, the Registrar of the Small Causes Court made an endorsement on the plaint mentioning that the parties were absent and the matter should be placed before Court Room No. 7 for orders on 23rd of September, 1981. This endorsement is in the form of a rubber stamp print wherein the words "Ex parte decree" also appear. The said words have been cancelled by the Registrar when he made the endorsement that the parties were absent on 7th of September, 1981. The significance of this will be mentioned by me a little later in this judgment.

(3.) The record of the trial Court does not show any endorsement on 23rd of September, 1981. However, two dates have been mentioned on the plant, namely 25th of November, 1981 and 10th of December, 1981. Against these two dates the letter "W.S." have been mentioned. On 10th of September, 1981 the learned trial Judge has made the following endorsement on the plaint :---