Judgment

CHINNAPPA REDDY, J.:- In this appeal by special leave, the tenant, against whom an order of eviction has been made under S. 13 of the East Punjab Urban Rent Restriction Act, is the appellant. The petition for eviction was based on the ground of default in payment of rent for the period April 1, 1976 to October 31, 1977. The petition was filed on October, 6, 1977 and on that date the appellant could not be said to be in default for the months of September and October 1977. On the first hearing day the tenant deposited a sum of Rs. 3600/- said to represent the arrears of rent due from him. In the written statement the tenant also took. the stand that the rent for the months of April and May 1976 had already been paid. After some hearing, the tenant absented himself and the petition for eviction was ordered ex parte. Thereupon he filed a petition to set aside the ex parte order contending that the landlord had met him on the last Saturday of July, 1978 and after some discussion he told him that he would withdraw the eviction case. The Landlord also received cheques from him towards rent. The tenant did not appear again in Court as the Landlord had promised to withdraw the case and he believed him in good faith. The Landlord denied the allegation that he had agreed to withdraw the case. The tenant examined himself on his side but the landlord refrained from entering the witness box. The Court accepted the case of the tenant and set aside the ex parte decree. The Court observed,

"He testified that on the last Saturday of July, 1978, the respondent-landlord came to him and settled the rent and, thereupon, the respondent promised to withdraw the petition. He also testified that the repsondent promised to come and collect the rent on August 10, 1978, and deposed that the respondent came on August 10, 1978 and collected the rent through draft the copy of which is Ex. A. 1. He also deposed the respondent having told him that he has withdrawn the case. The applicant testified that the respondent again came in the month of November 1978 and collected the rent for three months vide cheque and copy of the bank certificate is Ex. A. 2. He has deposed that he stopped at tending the Court and instructed his counsel accordingly as he was mistaken by the misrepresentation of the respondent. This statement made by the applicant has gone unrebutted. The respondent has not appeared in the witness box to rebut the allegations made by the applicant in his statement. The tact that the respondent received the rent from the applicant. twice during the pendency of the petition lends plausibility to the version of the applicant. Had there been no Misrepresentation on the part of the respondent the applicant would not have paid him the rent for the subsequent period as is clear from Ex. A, 1 and Ex. A. 2. There is evidence of the applicant during cross-examination that after November, 1978, the rent was received by the respondent through filing the eviction petition in the Court. The fact that the rent was accepted directly by the respondent from the applicant during this period, shows that there was some settlement between the parties. The statement of the applicant that the respondent told him that he will withdraw the petition and further that he had withdrawn the petition has gone unrebutted. According to the applicant he did not appear in the Court on account of certain representation by the landlord. The respondent has been able to substantiate those allegations.............. "The applicant acted on the misrepresentation of the respondent-landlord and did not attend the Court. There are, therefore, sufficient grounds for setting aside the ex parte decree."

After the decree was set aside the petition for eviction was once again ordered on the ground of default of payment of rent for the months of April and May, 1976. The order of eviction was confirmed by the appellate authority and the High Court. The tenants submission that the eviction petit