ORDER
Vijender Jain, J.
1.
The Eviction petition was filed against the respondent under Section 14(1)(e) of the Delhi Rent Control Act (in short ‘DRC Act’) on 13.3.1995.The summons were issued. However, it seems that summons were refused to be accepted by the respondent but the Additional Rent Control again ordered service by publication. The publication was effected in ‘Jansatta’ but the
Additional Rent Controller was not satisfied as instead of publishing the summons under Schedule III, ordinary summons were published and again Additional Rent Controller ordered that the respondent be served through affixation at the given address. In view of the report of the process server, who went to the address of the respondent on 1.6.1995, 10.6.1995, 20.6.1995 and ultimately on 10.7.1995 when respondent refused on accept the summons, a copy of the summons was pasted at the given address and the process server also obtained signature of one Narain Pujari of the Shiv
Mandir, the Additional Rent Controller passed the order of eviction on 12.7.1995 as no application to contest was filed by the respondent within a period of 15 days. However, Additional Rent Controller granted six months’time to the respondent to vacate the premises.
2. The petitioner before me waited for the entire period of six months and filed an execution on 12.2.1996, although no notice of execution was required to be served as the same was filed within one year of the passing of the eviction order, yet, notice was given. Same story was repeated on 15.3.1996, when the process server visited the premises of the espondent,
the premises was found locked and the copy of the summons was pasted on the door. A photograph of the same has strangely been filed by the respondent in Court. The possession of the premises was taken through the process of the court by the petitioner on 25.4.1996. The executing court had fixed 2.5.1996 date for compliance report on which date the respondent filed an application under Order 9 Rule 13 of the Code of Civil Procedure (for short ‘CPC’) for setting aside the ex parte decree passed against her.
3. Mr. Vats, learned counsel appearing for the petitioner, has contended that nowhere in the application under Order 9 Rule 13 of the CPC or in the reply filed to the present petition, the respondent has disclosed as to when she came to know about the decree having been passed against her. He has further contended that no application for condensation of delay has been filed by the respondent in support of his application under Order 9 Rule 13 of the CPC. Learned counsel for the petitioner has contended that in the absence of any application for condensation of delay and in the absence of any specific date from which the respondent came to know about the passing of the eviction order, the respondent has deliberately chosen not to mention the date in view of Section 3 of the Limitation Act as non-filing of the application for condensation of delay would have been fatal for the case of the respondent. In support of his contentions, learned counsel for the petitioner has cited the cases of Pundlik Vithoba Vs. Ganpat & Anr. AIR 1934 Nagpur 43, Daulat Singh Vs. Khem Raj AIR (38) 1951 Ajmer 31 and Mangaldoi Tea Co.Ltd. Vs. Md.Abdul Latif Munshi AIR 1977 Gauhati 51. On the basis of the aforesaid authorities, Mr.Vats has contended that the order passed by the executing court allowing the application of the respondent under Order 9 Rule 13 of the CPC was without jurisdiction.
4. On the other hand, counsel for the respondent has admitted that no application was filed for condensation of delay and nowhere it was mentioned in the application under Order 9 Rule 13 of the CPC by the respondent that from which date the respondent came to know about the passing of the decree. The explanation given by the counesl for the respondent was that the respondent had gone out to Balaji and when she came back on 26.4.1996, she was told that possession of the premises in terms of the order passed in execution application had been obtained by the petitioner and thereafter he has filed the application on 2.5.1996 and this fact finds mention in the application for stay, which was filed by the respondent before the executing court on 2.5.1996. That application was filed by the respondent along with application under Order 9 Rule 13 of the CPC.
5. I have given my careful consideration to the submissions made by the learned counsel appearing for both the parties. There cannot be any quarrel with the proposition of law that in an application under Order 9 Rule 13 of the CPC, the application must mention the date of knowledge of the passing of a decree against her/him. It is also correct that if there is a delay of more than 30 days in terms of Schedule 123 of the Limitation Act in filing the application for setting aside the ex parte order, an application for condensation of delay has to be filed. However, I assume that the respondent
being in hurry did not file an application for condensation of delay on the ground that she came to know about the passing of the eviction order on 26/27.4.1996 as has been alleged by the respondent in the application for stay of dispossession filed before the executing court but that is not the basis on which the executing court has allowed the application of the respondent. The Additional Rent Controller while disposing of the application under Order 9 Rule 13 of the CPC reversed the finding of his Predecessor, who had given as many as three opportunities to the respondent to be
served by different modes. Reliance placed by the Additional Rent Controller on a previously instituted eviction petition in which respondent had appeared and that of another criminal case for the purpose of deciding this application, was not proper and, therefore, the Additional Rent Controller fell in error on that account. The learned Additional Rent Controller had not taken into consideration the order passed by his Predecessor dated 12.7.1995 which, inter alia, in detail has discussed in para-2 about the service affected on the respondent. Lightly, brushing aside the said finding without any cogent material by the Additional Rent Controller in his order dated 14.5.1996 is without any basis, thus, I hold that the impugned order dated 14.5.1996 passed by the Additional Rent Controller allowing the application of the respondent filed under Order 9 Rule 13 of the CPC and setting aside the ex parte order passed by the Additional Rent Controller dated 12.7.1995 is bad in law and the same is set aside.
6. Petition is allowed. Parties are left to bear their own costs.
