Procedural laws are handmaids of justice and should not obstruct substantial justice. A liberal and pragmatic approach should be adopted in considering reasons for non-appearance.

TARLOK SINGH CHAUHAN, J.

1. This petition under Article 227 of the Constitution of India is directed against the order dated 3.8.2015 passed by the learned Civil Judge (Junior Division), Court No. 3, Shimla whereby it refused to set-aside the ex-parte order against the petitioner.

2. The respondent herein filed eviction petition before the learned Rent Controller on various grounds. On 2.7.2011, notice of this petition was ordered to be issued for the service of the petitioner who was duly served for the next date fixed on 27.8.2011. But, since the report of service was in Urdu, therefore, the Court ordered the case to be listed on 7.9.2011 and directed the respondent to produce some interpreter knowing Urdu language, so that the report on the summons could be understood. On 7.9.2011, the statement of one Sh. R.N. Karol was recorded, who stated that he was conversant with the Urdu language and the report on the summons revealed that the summons had been duly acknowledged by the respondent/petitioner herein and, therefore, he was proceeded ex-parte and case was ordered to be listed for ex-parte evidence on 3.11.2011. However, on 3.11.2011, the petitioner moved an application for setting aside the ex-parte order and permission to join the proceedings as also to file reply to the eviction petition. This application was contested by the respondent and the Rent Controller on 21.6.2012 proceeded to frame the following issues:-

1. Whether there are sufficient ground to set-aside order dated 27.8.2011 to 7.9.2011, vide which applicant was ordered to be proceeded against ex-parte, as prayed? OPP

2. Whether the present application is neither competent nor maintainable, as alleged? OPD

3. Whether the application is mala-fide, as alleged? OPD

4. Relief.

3. The parties led evidence and ultimately after a period of nearly four years, the learned Rent Controller, eventually dismissed the petition by concluding that the defence set up by the petitioner in his application as also the evidence led in support thereof was false and lacked bona fides.

I have heard learned counsel for the parties and have gone through the records of the case carefully.

4. Adverting to the facts of the case, it would be seen that the petitioner though was duly served on 4.8.2011, whereas the date fixed for his service was fixed as 27.8.2011 when he admittedly did not appear. The reason assigned in the application under Order 9 Rule 7 CPC for non-appearance was that the petitioner was aged about 75 years and had gone to his native place in Jammu & Kashmir. Though, the petitioner was served with a notice but the same was delivered to him so late that it was impossible for him to appear in the case on 27.8.2011. On account of late service of summon, he remained under bona-fide belief that he will be sent fresh summons in the case. However, he did not receive any fresh summons, he made enquiries through his counsel and it was revealed that he was proceeded ex-parte in the case on 27.8.2011. It was further averred that though he received the summons issued by the Court, but then the name of his father as reflected in the summons was Habeeb Ullah instead of Gulam Rasool Paddar. It was also averred that on account of old age and weak health the petitioner could not attend the case and there was no negligence or intentional lapses on the part of the petitioner for his non-appearance before the Court on 27.8.2011.

5. In response to the application, the respondent had averred that the application was mala-fide and had been filed with an intention of delaying the proceedings. The petitioner had been duly served for 27.8.2011 and he intentionally and deliberately failed to put in appearance before the Court and, therefore, the ex-parte proceedings were rightly drawn against him.

6. The learned Court below has rejected the application on the ground that the explanation offered by the petitioner was false. It has been observed in paras 6 and 7 of the order as under:-

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