JUDGMENT :

Deepak Gupta, J.

Civil suit for declaration along with permanent injunction and consequential relief of possession filed by plaintiff - Dheru Ram through his legal representatives (now respondents through his legal heirs) regarding shop in dispute was decreed by the trial Court on 02.02.1999 against defendants - Jatinderjit Singh and another (now appellants). Appeal filed by the defendants was dismissed by the First Appellate Court of Ld. District Judge, Hoshiarpur vide judgment dated 13.03.1999. Against this concurrent findings of the Courts below, defendants of the case have now approached this Court by way of present regular second appeal.

2. In order to avoid confusion, parties shall be referred as per their status before the trial Court.

3.1 Perusal of the paper book would reveal that plaintiff - Dheru Ram was admittedly a tenant under the defendants on the demised shop @ Rs. 104/- per month inclusive of the house tax. Two ejectment petitions were earlier filed by the landlords-defendants, claiming rent @ Rs. 104/- per month including house tax and on both the occasions, claimed rent was tendered and the ejectment petitions were dismissed. Lastly, landlords filed another ejectment petition claiming rent of subsequent period @ Rs. 104/- per month inclusive of house tax, which was tendered by the plaintiff - tenant.

3.2 It was pleaded by the plaintiff in the present suit that in the aforesaid last ejectment petition, on an understanding given by the defendants that since the rent claimed had been tendered by him (plaintiff) and so the defendants-landlords will withdraw the petition, the plaintiff absented and was proceeded against ex parte by the Rent Controller. Taking advantage of his absence, defendants against their own pleadings claimed that rent of Rs. 104/- per month did not include the house tax and since the tender was short, so the tenant, i.e. plaintiff was liable to be ejected. Finding the said tender to be short, the Rent Controller allowed the ejectment petition on 02.02.1996.

3.3 The ejectment order was executed without notice to the plaintiff. Plaintiff then brought the present suit challenging the order of ejectment, having been passed on misrepresentation and fraud having been played by the defendants on the plaintiff as well as on the Court.

4. The defendants-appellants herein contested the suit. Necessary issues were framed. Evidence produced by both the parties was taken on record.

5. Trial Court decreed the suit by setting aside the order of ejectment. Defendants filed appeal before the First Appellate Court but the same was dismissed in limine.

6. It may be noted here itself that before the First Appellate Court, contention was raised by the appellants-defendants that suit filed by the plaintiff-respondent was not maintainable, as the plaintiff should have challenged the ejectment order before the Rent Controller or before the Appellate Authority, if the order had been passed against facts. However, the said contention was rejected by the First Appellate Court by observing that a poor litigant was at the mercy of legal advice given to him by his counsel and in case, he had been wrongly advised at some stage, he could not be allowed to suffer for lapse of his counsel on the technical grounds. Thereafter, the First Appellate Court proceeded to dispose of the appeal on merits and dismissed the same in limine.

7.1 Assailing the above-said judgments passed by the Courts below, it is contended by learned Sr. counsel for the appellants that the First Appellate Court went in error by holding the suit to be maintainable, inasmuch as in case the ex parte ejectment order had been passed against facts, as was contended by the plaintiff, the proper remedy was either to move an application for setting aside the ex parte ejectment order before learned Rent Controller, or file the appeal before the Appellate Authority. Learned counsel has referred to Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (he