KISHANLAL SONI Vs. OMKAR PRASAD AGARWAL

JUDGEMENT

(1.) THIS is a revision by the tenant. The Rent Controlling Authority passed an ex -parte order of eviction against him on 30.11.1991. The order of eviction was executed on 1.2.1992 and soon thereafter the applicant tenant approached the R.C.A. with an application on 1.2.19Q2 under Order 9, Rule 13 of the Code of Civil Procedure (in short 'the Code'), with a request that the ex -parte order of eviction be set aside, as no notice of summons of the suit was served on him. In the application it was clearly stated that the notice appears to have been served on some another person and the landlord has played a fraud. The landlord in his reply to the application under Order 9, Rule 13 of the Code, stated that the tenant should be deemed to have been duly served and in any case he had the knowledge of the institution of the proceedings against him, as is clear from the fact that on 6.7.1991, he had applied for grant of certified copies of the order -sheets and the statement of witnesses recorded on behalf of the landlord. According to the landlord, the certified copies of the pleadings and the statements of witnesses were supplied by the Copying Section to the tenant on 29.8.1991, vide receipt No. 874. After the reply of the landlord, the tenant moved an application for amendment of his main application under Order 9, Rule 13 of the Code and denied the fact that he had over filed any application for grant of certified copies of the order -sheets and statements of witnesses. The case of the tenant before the R.C.A. was that the notice was got served on a wrong person and the landlord himself, in order to create evidence, against the tenant applied for the certified copies and obtained the same in the name of the tenant. Strangely enough, the R.C.A. by the impugned order dated 11.5.1993, rejected the application of the tenant under Order 9, Rule 13 of the Code, only on the ground that the order of eviction had already been executed and the application thereafter was not tenable. The R.C.A. did not list the case for evidence of the parties, on their respective cases in proceedings under Order 9, Rule 13 of the Code.

(2.) IN my opinion, the learned R.C.A. has committed error, both of jurisdiction and procedure. Firstly, the R.C.A. committed gross error in holding that the application under Order 9, Rule 13 of the Code cannot be considered after the order of eviction had been executed. The authority ought to have seen that on setting aside of such an ex -parte decree which although executed, the tenant could seek restitution under section 144 of the Code. If any authority is needed for the legal proposition, see the decision of the Supreme Court in the case of Binayak Swain v. Ramesh Chandra Panigrahi and another (AIR 1966 SCC 948). The application under Order 9, Rule 13, therefore, should have been considered by the R.C.A. on merits. The Authority also committed gross error of procedure in not fixing the case for evidence and allowing both the parties to prove their respective case. The case of the tenant was that he was never served with notice and he never applied for any certified copy during the pendency of the case. The case of the landlord on the other hand was that notice was duly served and the tenant had applied for the certified copies and had derived knowledge of the proceedings. These contested questions could not have been decided without permitting the parties to lead evidence. The impugned order of the R.C.A. dated 11.5.1993, therefore, cannot be sustained and is hereby set aside.

(3.) THE revision stands -disposed of with the above observations and directions. AIR 1966 SC 948 followed.