Heard finally by consent.

2. The petitioner/tenant has challenged the exparte judgment and decree dated 1.7.2003 passed in RAE & R Suit No.1633/5893 of 1978 and the judgment and order in Appeal No.104 of 2005 dated 29.08.2008. The respondents are the legal heirs of deceased Chabildas Patel, the owner of a chawl having about 27 rooms, known as Chabildas Chawl, Teli Galli Cross Lane, Andheri (East), Mumbai 69. The suit room is a single room tenement admeasuring about 10’x10’ and the rent of the premises is Rs.19/- exclusive of the permitted increases.

3. A notice of demand dated 26.09.1978 was issued as the petitioner was in arrears of rent for more than 112 months. Therefore a Suit in question was filed for eviction in the Small Causes Court at Mumbai. The original plaintiff and the defendants expired during the proceedings. Therefore, the respective heirs are proceeding with the matter. A written statement, as well as, an additional written statement are filed. On 10.11.1995 issues are framed.

4. The petitioner was operated because of eye infection in the year 1999. His health was also deteriorating and could not attend the court and contact his Advocate. He was not aware of the progress of the Suit. The petitioner has no telephone at his residence. There was no contact during this period even with his Advocate. He also could not go and contact his Advocate for want of intimation.

5. As the petitioner/defendant remained absent and as there was no cross-examination of the plaintiff, the trial Court at Bombay, based upon the examination-in-chief on affidavit and documents produced on record by the plaintiff, proceeded under Order XVII, Rule 2 of C.P.C. and passed exparte decree of eviction of the premises.

6. On 24.06.2004 the bailiff tried to serve the execution notice, which was refused by the wife as she was not aware of any proceeding. The petitioner, therefore, as instructed orally, visited the court at Bandra on 30.06.2004 and waived the service of the notice and appeared through his Advocate. As the next date was 13.07.2004 and as the petitioner had misplaced the paper of Suit, on his request, made an application for certified copy of the proceeding through Advocate’s clerk on 2.7.2004.

7. The exparte decree was passed by the Small Causes Court, Bombay wherein the notice of execution was made returnable in Small Causes Court at Bandra. The petitioner appeared at Small Causes Court at Bandra and applied for certified copy as referred above. A copy of exparte judgment and decree was annexed with the said notice and, therefore, came to know about the date of exparte decree. Page Nos. 4 and 5 of the said judgment were missing. In the meantime, the application for notice before execution was heard on 5.02.2005 and dismissed on merits on 22.2.2005.

8. The petitioner and respondents 2 and 3 on 21.02.2005 awaiting for certified copy of the exparte decree and proceedings filed an application under Order IX, Rule 13 with prayer for condonation of delay to set aside the exparte decree passed on 01.07.2003 on the foundation that he came to know about the decree only on 30.06.2004. The respondent/landlord opposed by reply dated 21.03.2005 setting aside application. The petitioner has filed rejoinder dated 02.04.2005. The learned Judge at Bandra Court by order dated 03.05.2005 dismissed the application for setting aside exparte decree on the ground of delay only.

9. Importantly, the petitioner has averred in Interim Notice No.287/2005 at Bandra Bench also as under:

"10. I say that since the judgment was delivered by the Hon’ble Judge, Shri Dhanapube in Court Room No.24 at Bombay branch, the papers were sent to Bombay. Hence, my application was also sent to Bombay. Then the application was sent back from Bombay along with the papers but I have yet not received the certified copies of the proceedings. I say that only from the copy of the notice before execution, since the copy of the judgment was annexed, I came to know