M A QADER Vs. MOHD AZMAT ALI

JUDGEMENT

(1.) This revision is directed against the order passed in I.A.827 of 1983 in R.C.No.103 of 1983 on the file of II Additional Rent Controller Hyderabad dt.5-3-1984. The petitioner filed R.C.103 of 1983 against the respondent seeking eviction under Sec.10 of A.P. Buildings (Lease, Rent and Eviction) Control Act. When the case was called for hearing on 30-8-83 the respondent-tenant was absent. The Rent Controller passed an ex-parte order of eviction. Subsequently the petitioner filed E.P. 36 of 1983 for executing the decree and he took possesession of the house on 21-10-83. The Respondent-tenant filed I.A. 20 of 1983 against which this Revision petition arises, to set aside the ex-parte order of eviction Dt. 30-8-1983.

(2.) The main ground urged in the petition was that he was not duly served with the summons and therefore the ex-parte order is void. The petitioner took a preliminarily objection contending that the application was barred by time as it was not filed within 30 days from the date of the ex-parte decree as contemplated under Rule 8 (3) of the A.P. Building (Lease Rent, and Eviction) Control Rules, 1961. He also contended that summons were duly served. The Rent controller rejected the contention of the petitioner holding that the application was not time barred. He relied upon a decision of this Court in Kommishetty Satyanarayana Vs. Immadashetty Venkata Subbaiah (1) 1961 (2) An.W.R.55, Aggrieved by the order of the Rent Controller that the exparte decree was liable to be set aside the petitioner filed an appeal before the appellate authority under the Control Act. The appeal was dismissed by an order dated 22.12.1984. Against the said orders the petitioner filed this revision petition which came up before our learned brother Justice T. Lakshminarayana Reddy. The learned judge doubted the correctness of the decision in Kommisetty Satyanarayana Vs. Immadashetty Venkat Subbaiah (1 supra) and referred the matter to a Bench. This is how the matter is before us now.

(3.) The main submission of Sri Syed Sadatullah Hussaini, the learned counsel for the petitioner is that the petition. I.A. 827 of 1983 filed to set aside the ex-parte decree is barred by limitation. He also contended that the order of the Rent Controller as well as the appellate authority that there was no proper service of summons is unsustainable in law. We will take up the contentions in seriatum. Rule 8 of the A.P. Rent Control Rules is as follows:- "8 (1) When an application under the Act is presented to the Controller he shall fix the date on which and the place at which the inquiry in respect of the application will be held and send notice thereof to the applicant or applicants and the respondent or respondents mentioned in the application and also send a copy of the application along with the notice to the respondent or respondents. Provided that, in the case of applications for eviction filed under Sub-section (3) of Sec.10 in respect of buildings of which the State Government, or the Central Government are tenants, he shall not be bound to give such notice unless he considers such notice necessary regard being had to the averments in the petition or any other material circumstances. (2). The Controller shall give to the parties a reasonable opportunity to state their case. He shall also record a brief note of the evidence of the parties and witnesses, if any, examine on either side and upon the evidence so recorded and after consideration of any documentary evidence which may be produced by the parties, pass orders on the application. (3). Where an order is passed exparte against a tenant or a Landlord, or an order of dismissal for default is passed by the Controller, the party affected may, within thirty days from the date of the pronouncement of the order in open court, apply to the Controller by whom the exparte order or the order of dismissal was passed, for an order to set it aside and if he satisfies the Controller that the summon was not duly served, or that he was prevented by any sufficient cause from appearing when the application was called on for bearing or that such default was occasioned due to circumstances beyond his control, the Controller shall make an order setting aside the ex-parte order or the order of dismissal passed, as the case may be, upon such terms as to costs, payment into court or otherwise; as the Controller thinks fit, and shall appoint a day for proceeding with the application. Provided that no order shall be set aisde under this sub-rule unless the opposite party has been served with a notice in this regard. Provided further that the Controller shall, in respect of an application for setting aside an ex-parte order or order of dismissal for default received under this sub-rule for the first time, and may, in respect of second or subsequent application, stay all proceedings in pursuance of the ex-parte order or order of dismissal for default, until the disposal of the application."