D.A. DESAI, J.

(1) THIS is a matter in which the appellants have been evicted from the premises in which they were staying, under a decree which on the face of it is an ex parte decree.

(2) HUSBAND of the first appellant was the tenant of the premises and unfortunately he died on 3/05/1974 at Arnritsar. According to the appellants, widow and minor children of the deceased tenant left for Karachi on 1/02/1975. The suit was filed against the appellants on 2/02/1975 for recovery of arrears of rent and possession. When the suit was filed the only ground on which eviction was sought was that the appellants were in arrears of rent for a period of six months or more and there being no dispute about the standard rent of the premises in view of the provision contained in S. 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act (No. LVII of 1947) (Rent Act for short) decree for eviction must follow as a matter of course. The writ of summons of the suit after an attempt as service was returned with an endorsement left. It is said that service was effected by sticking a copy of the writ of summons on the premises the subject matter of the suit. Subsequently plaintiff respondent sought an amendment of plaint impleading defendant No. 6. While impleading defendant No. 6 as a defendant to the suit, an amendment to the plaint was sought by which two more grounds for eviction were added. Briefly they were as under:

I Bona fide personal requirement under S. 13(l)(g).

II. Deceased tenant had inducted defendant No. 6 as subtenant.

(3) A further attempt to have the writ of summons with a copy of the amended plaint annexed serviced to the appellants met with the same result, and the same methodology was followed. The suit ultimately ended in an ex parte decree in .favour of original plaintiffs. When the appellants came to know of the ex parte decree, they returned to India and moved an application for setting aside the ex parte decree. An appeal against the ex parte decree was preferred but the same failed. The High court declined to interfere in a petition under Article 227 of the Constitution. Hence this appeal by special leave.

(4) MR Tarkunde appearing for the respondents seriously contended that this is not a case in which we should show any indulgence to the appellants; firstly, because they have no defence on merits and secondly, that they are in arrears of rent and the arrears have piled up to a huge amount. Mr Chatterjee repelled this submission by saying that earlier under the order of the High court the. rent in arrears till the date of the order of the High court and up to and inclusive of 31/03/1978 amounting to Rs. 26,963.60 including water charges was deposited in the court and subsequent to that date the appellants have been depositing in the court the rent becoming due and payable from month to month. While this assertion is not controverted, by way of abundant caution we propose to direct that the learned Judge of the Small Cause court before whom the case would come up pursuant to this order must first ascertain whether this averment of deposit is true and if it be so the respondents are at liberty to withdraw the same. If it is not true, he may direct the appellants to deposit rent in arrears within the time considered reasonable by him and provide sanction for breach of such order as deemed proper by him.

(5) THE question is whether we should sustain the ex parte decree. We are not inclined to examine the contention that there is no defence on merits, because we propose to set aside the ex parte decree and remit the suit for the trial court for disposal according to law. Maybe that we may be open to a ch a charge of indulgence to a person guilty of negligence. But we cannot overlook the fact that the suit is governed by the Rent Act and in view of the provisions contained in S. 5(ll)(c)(i) on the death of a tenant his tenancy would stand transmitted to any member of the