An ex-parte order of ejectment can be set aside if the Court is satisfied that the defendant had no notice of the date of hearing or did not have sufficient time to appear and answer the plaintiff's claim.

D.V.Sehgal, J.

1. An ex-parte order of ejectment was passed against the tenant petitioner on 16.2.1976 by the learned Rent Controller Chandigarh, on an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 as applicable to Chandigarh (for short the Act) filed by the landlord-respondent. The petitioner filed an application for setting aside of the said ex-parte order of ejectment on 16.5.1976 stating therein that neither any Process Server nor any postman had even contracted him for effecting service of summons on him regarding the application for ejectment nor had he ever refused to accept service. He further averred that he gained knowledge of the ex-parte order of ejectment on 7.5.1976 when he visited the Courts in connection with some other case. This application was, however, dismissed by the learned Rent Controller vide his order dated 2.5.1979, which has been challenged by the petitioner by approaching this Court through the present revision petition.

2. The first question that was debated before me is whether the revision petition has been filed in this Court within the period of limitation. The learned counsel for the respondent pointed out that while the impugned order was passed by the learned Rent Controller on 2.5.1979, the revision petition was filed in this Court on 10.10.1979, which is, therefore, hopelessly barred by time. The learned counsel for the petitioner in reply to this legal objection explained that the impugned order dated 2.5.1979 was sought to be challenged by filing an appeal before the learned Appellate Authority, Chandigarh. This appeal was filed within a period of thirty days as prescribed by section 15(2) of the Act. However, the same was held to be not maintainable by the learned Appellate Authority vide its judgment dated 8.9.1979. Certified copy of the judgment was applied for on 12.9.1979. The same was, however, not made available within a reasonable time and since the respondent was taking steps to evict the petitioner, the present revision petition was filed accompanied by a true copy of the judgment of the learned Appellate Authority on 10.10.1979. The certified copy was later on made available on 27.10.1979 which was then filed in this Court to accompany the revision petition. He, thus, submits that there was no intentional delay on the part of the petitioner to file the revision petition in this Court. He further submits that there is no period of limitation prescribed for filing a revision petition under section 15(5) of the Act.

3. After considering the rival submission of the learned counsel for the parties, I am of the view that this revision petition cannot be thrown out on the point of limitation. A perusal of the judgment dated 8.9.1979 of the learned Appellate Authority shows that the question whether or not the appeal before it could be maintained was quite contentious at that stage. After an elaborate discussion of the provisions of section 15(1) of the Act, the notifications issued by the Government in pursuance of the said provisions and the judgments of this Court on the point, the learned Appellate Authority reached at the conclusion that the appeal before it was not maintainable. It, therefore, cannot be said that the appeal before it was filed mala fide. In fact, while the period of limitation for filing the appeal before it was 30 days only, the revision petition in the normal course could be filed within 90 days. It is not disputed that appeal was filed well within 30 days before the learned Appellate Authority was clearly bona fide and can at the worst be treated to be the result of wrong advice of the counsel, who filed the appeal. In fact, the question whether or not the appeal against an order refusing to set aside ex-parte order of ejectment passed by the Rent Controller is appealable continued to be a contentions one and was finally settled by a Full Bench of this Court in Daya Chand Hardayal v. Bir Chand, 1987(1) R.C.R. 306. A