Case Note & Summary
The case involves a civil revision application filed by the landlord, Shailesh Sudhir Joglekar, against the judgment and order dated 26th February 1999 passed by the Additional Chief Judge, Small Cause Court, Nagpur, and the appellate order dated 12th June 2001 passed by the Additional District Judge, Nagpur. The landlord had filed an application under Clause 13(3)(iii)&(v) of the C.P. & Berar Letting of Houses and Rent Control Order, 1949, before the Rent Controller on 5th December 1990, which was registered as Revenue Case No. 726 A/71(2)/90-91. On 15th January 1991, the Rent Controller granted permission to terminate the tenancy. Consequently, the landlord issued a quit notice on 24th April 1991, and when the tenant refused to vacate, the landlord filed Civil Suit No. 558/91 in the Small Cause Court, Nagpur, on 27th June 1991, seeking ejectment, possession, damages, and mesne profits. The landlord claimed that the tenant was served by registered post on 24th July 1991, but the notice was refused, leading to an exparte decree on 28th September 1991. The decree was executed on 11th July 1992, and the landlord took possession through the court bailiff. The tenant, Nirmal Kumar Gulzarilal Jain, filed an application under Order 9 Rule 13 and Section 144 of the Code of Civil Procedure, 1908, to set aside the exparte decree and for restitution. The trial court allowed the application, and the appellate court dismissed the landlord's appeal. The landlord then filed the present civil revision application. The High Court, after hearing the counsel for the landlord, found no merit in the revision. The court noted that the concurrent findings of the courts below regarding the improper service of summons were based on evidence and did not suffer from any jurisdictional error. The High Court held that the discretion exercised by the lower courts in setting aside the exparte decree was proper and that the tenant had sufficient cause for non-appearance. Accordingly, the civil revision application was dismissed with no order as to costs.
Headnote
A) Civil Procedure Code - Setting Aside Exparte Decree - Order 9 Rule 13 - Service of Summons - The tenant filed an application to set aside an exparte decree of ejectment, claiming that summons were not duly served. The trial court allowed the application and the appellate court upheld it. The High Court found no error in the concurrent findings that the tenant was not properly served, as the process server's report was not reliable and the tenant had sufficient cause for non-appearance. Held that the courts below correctly exercised their discretion in setting aside the exparte decree. (Paras 1-5) B) Rent Control - Permission to Terminate Tenancy - Clause 13(3)(iii)&(v) of C.P. & Berar Letting of Houses and Rent Control Order, 1949 - The landlord obtained permission from the Rent Controller on 15.1.1991 to terminate the tenancy. However, the validity of the permission was not in issue in this revision. The core issue was the propriety of setting aside the exparte decree. (Paras 2-3) C) Civil Procedure Code - Restitution - Section 144 - The tenant also sought restitution of possession under Section 144 CPC. The trial court allowed the application, and the appellate court confirmed it. The High Court upheld the order, noting that since the exparte decree was set aside, the tenant was entitled to be restored to possession. (Para 2)
Issue of Consideration
Whether the courts below erred in setting aside the exparte decree and allowing the application under Order 9 Rule 13 CPC and Section 144 CPC.
Final Decision
The High Court dismissed the civil revision application with no order as to costs, upholding the orders of the courts below that set aside the exparte decree and allowed restitution.
Law Points
- Order 9 Rule 13 CPC
- Section 144 CPC
- Service of summons
- Exparte decree
- C.P. & Berar Letting of Houses and Rent Control Order
- 1949
- Clause 13(3)(iii)&(v)
