Lower Court erred in condoning the delay.

Landlord in R.C.O.P.No.2857 of 1990, on the file of XVI Judge, Court of Small Causes, Madras, is the revision petitioner.

2. Petitioner herein filed R.C.O.P.No.2857 of 1990 against the respondent for eviction. An ex parte order was passed on 5. 1991. The matter came up for first hearing on 20.12.1990. Since service could not be completed, it was adjourned, and the Rent Controller ordered fresh notice. Rent Controller also ordered substituted service by publication, returnable by 30.4.1991 On 30.4.1991, respondent was called. Since he was absent, he was set ex parte, and the matter was posted to 5. 1991 for ex parte evidence. On 5. 1991, evidence was taken and an order of eviction was passed.

3. Alleging that he came to know about the ex parte order after a long time, respondent filed an application to set aside the ex parte order, as M.P.No.110 of 1992. He did not file any application to condone delay even though the Rules provide that such application has to be filed within 30 days from the date of decree. Respondent relied on the date of knowledge and said that the application was filed within 30 days from that date.

4. Rent Controller took cognizance of the same and ordered notice to be served on the petitioner. Neither the notice was served on the petitioner, nor the respondent took notice. Consequently, the petition was dismissed for default.

5. Petitioner sold not only the property in question to Messrs. Shenoy Nagar Benefit Funds Limited but also adjoining portion which is occupied by Civil Supplies Corporation. As against that Corporation also, petitioner herein has filed an eviction petition and obtained an order. It is after getting possession from the Civil Supplies Corporation, the sale of the entire property was effected.

6. After knowing about the same, respondent herein filed R.C.O.P.No.2657 of 1993 against the purchaser compelling to receive rent from him. The allegation was that the purchaser has refused to receive rent in spite of earnest requests made by him. It is said that an order was passed in his favour.

7. Thereafter, the purchaser filed E.P.No.385 of 1996. After getting notice of the same, a further application was filed by respondent herein as M.P.No.742 of 1996 in M.P.No.110 of 1992, to restore the earlier application which had already been dismissed for default. It is alleged in that petition by the respondent that after the ex parte order of eviction, and after he filed M.P.No.110 of 1992, he met the petitioner herein who assured him that he will not be dispossessed and his intention is only to sell the property. The respondent further averred that he believed the words of the petitioner and therefore, did not take steps to have the notice served on the petitioner. Only when the purchaser initiated action, he knew that he has been de-frauded and, therefore, wanted the delay of 1,650 days to be condoned and the miscellaneous petition restored to file.

8. A detailed counter affidavit was filed by petitioner that he never met the respondent at any time, nor did he tell him that he will not execute the order. The reasons stated for condoning the delay are false. It is his case that he never made any representation to the tenant as alleged in the affidavit.

9. The respondent did not think of adducing any evidence to have the delay condoned. Both parties relied on the affidavit which they have filed, and, by the impugned order, lower court condoned the delay and restored M.P.No.110 of 1992 to its file. While restoring that application, the Rent Controller further observed that the Execution Petition is not maintainable. The purchaser has also acted without any bona fides since the purchaser has initiated action four years after the sale, the case put forward by the respondent must be true and that sufficient grounds have been made out for condonation of delay. The said order is challenged in this revision petition under Art.227 of the Constitution of India.

10. I ordered notice of mot