GIRVER DAYAL GANDA RAM Vs. RAGHUNATH SAHAI ETC

JUDGEMENT

(1.) This is tenant's revision directed against the order of the Rent Controller whereby application of the tenant (petitioner herein) for setting aside ex-parte eviction order dated 25.9.1990 has been dismissed.

(2.) Landlords (respondents herein) filed eviction application against the tenant and ex-parte eviction order was passed on 25.9.1990. Landlord in execution took possession of the premises on 21.12.1990. Tenant felt aggrieved of the ex-parte eviction order and thus, filed application under Order 9 rule 13, Code of Civil Procedure, for setting aside the ex-parte order. Similarly, tenant also filed an appeal before the appellate Authority against ex-parte order dated 25.9.1990. Appeal against order dated 25.9.1990 was dismissed on 10.5.1993. On dismissal of the appeal, Rent Controller vide order dated 14.9.1996, dismissed the application under Order 9 Rule 13, Code of Civil Procedure, on the ground that in view of Explanation added to Order 9 Rule 13 after decision of appeal, application under Order 9 Rule 13 is not competent. Against order dated 14.9.1996 passed by the Rent Controller, tenant filed appeal before the appellate Authority, but the appellate Authority vide order dated 14.10.1997 on finding that only revision could be filed against order dated 14.9.1996, dismissed the appeal being not maintainable. This is how the present revision petition has been directed against order dated 14.9.1996 of the Rent Controller.

(3.) Learned Counsel appearing on behalf of tenant has contended that the tenant had not been served in this case and therefore, ex-parte eviction order obtained against the tenant was patently illegal and tenant could not have been dispossessed in execution of the said order. It is also contended that against the ex-parte order, tenant had two remedies; firstly, to file an application under Order 9 Rule 13 to set aside ex-parte order and secondly, to challenge order in appeal. It is contended that both the remedies could be availed of simultaneously.