JAYANTA PATNAIK Vs. A.P. PATEL AND OTHERS

JUDGEMENT

(1.) This writ application is directed against the order of the Chief Judicial Magistrate, Cuttack in H. R. C. Appeal No. 5 of 1991 confirming the order of House Rent Controller, Cuttack, in H. R. C. Misc. Case No. 8 of 1990 rejecting the petitioner's application for condonation of delay in filing the petition for setting aside the ex-parte order dated 27-1-1981 and: consequential dismissal of the petition under Order 9, Rule 13 C.P.C.

(2.) The short facts of the case, bereft of unnecessary details, are that the petitioner was in occupation of a shop room of Buxi Bazar, Cuttack town as a monthly tenant under opp. parties 1 to 5 being let out by their deceased father in the year 1971. It is asserted that on 28-3-1990, the petitioner came to know for the first time that the landlord has obtained an ex-parte order dated 27-1-1981 from the se Rent Controller in H. R. C. Case No. 88 of 1980 for eviction of the petitioner and opp. party No. 6 from the suit shop and had filed execution Case No. 9 of 1990 in the court of the first Munsif, Cuttack for delivery of possession. Having come to know of the order and after inspection of the records, the petitioner filed an application under Order 9, Rule 13, Civil Procedure Code on 11 -4-1990, which was registered as Misc. Case No. 8 of 1990 for setting aside the ex-parte order and restoration of the case for hearing. Along with the petition an application under section 5 of the Limitation Act to condone the delay in filing of the petition was filed. The opp. parties-Landlords filed their objection contending inter alia that the petitioner was aware of the institution of the case and the notice had been duly served on the tenant-petitioner and as having deliberately avoided to take part in the proceeding, there is no sufficient cause for condoning the delay in filing the petition for setting aside the ex-parte order at this belated stage.

(3.) The learned House Rent Controller, in his order dated 10-12-1990, on consideration of the evidence and the documents on record, found that the assertion of the petitioner that he had no knowledge of the ex-parte decree passed in Original Case till 21-3-1990 cannot be believed. It was held that the petitioner had. knowledge of the proceeding since 22-9-1980 when the notice was served on affixture, he having refused to receive such notice, and also the passing of the ex parte decree dated 23-1-1983. On such finding, the learned House Rent Controller held that since the petition under Order 9, Rule 13 Civil Procedure Code has been filed on 11-4-1990 and no ground for condoning such inordinate delay is made out nor the delay is sufficiently explained, there is no ground tor condoning, such delay. The petition under section 5 of the Limitation Act having been rejected, the petition under Order 9 Rule 13 Civil Procedure Code was also dismissed.