An ex parte order of eviction passed without proper service of notice and without giving the tenant an opportunity to defend his case is illegal and void.

A.G. Qureshi, J.

1. This revision petition has been filed under Section 23-E of the M.P. Accommodation Control Act, 1961 against the ex parte order of eviction dated 7-3-1991 passed by the Rent Controlling Authority, Indore in eviction case No. A90(7)56/90.

2. The facts leading to this revision petition, in short are that the petitioner was the tenant of the respondent in a shop comprising of two rooms in the building situated at 10(old) and 12(new) Nasia Road, Indore. The tenancy was for non-residential purpose. The respondents filed an application on 3-12-1990 before the Rent Controlling Authority, Indore against the petitioner under Section 23A(b) of the Accommodation Control Act, 1961 as a widow. On the same date an order for issuance of notice of the eviction application was passed by the Rent Controlling Authority directing the tenant to appear before the Court on 27-12-1990. On 27-12-1990 the Court found that the bailiff had given a report of non-service of notice on the ground that the premises of the petitioner was locked. Thereafter the case was ordered to be put up on 28-12-1990. The Court on 28-12-1990 directed the notice to be served by affixation and finally on 11-1-1991 the Court found that although the notice has been served by affixation, still none is present. Therefore, an order for proceeding ex parte against the tenant was made and the case was fixed for 22-1-1991 and thereupon an ex parte decree of eviction was passed which has been challenged in this revision petition.

3. The learned counsel for the petitioner has drawn my attention to the fact that the petitioner has suppressed the fact that there is an office of the petitioner in another building also and that address was not shown before the Court. Furthermore the order dated 27-12-1990 clearly shows that the notice of the eviction application could not be served because the premises was locked. But the Court has erred in directing substituted service despite the fact that the notice was sent only once to the shop of the applicant but the process server has wrongly reported that the shop is always locked, which led the Court to order the affixation of the notice by way of substituted service. As such the order on the application of the landlord was passed for substituted service without making any serious attempt to serve the notice on the present petitioner and the Process Server never attempted to serve the notice of the eviction application for more than once. From the report of the Process Server the Court could not hold that repeated attempts to serve the notice were made by the Process Server and, therefore, the provisions of Order 5, Rule 20, Civil Procedure Code could not be invoked. As such the application of the non-applicant under Order 5, Rule 20, Civil Procedure Code was not maintainable and the affidavit sworn by the landlord in support of the application is also of no avail.

4. On the other hand the learned counsel for the non-applicant Shri Sethi argues that as no application under Order 9, Rule 13, Civil Procedure Code has been filed, the present revision petition is not tenable. On merits Shri Sethi argues that the lower Court has not erred in any way in acting on the report of the bailiff. In reply Shri Waghmare states that an application under Order 9, Rule 13, Civil Procedure Code was not necessary because the order impugned is a nullity because the service was not effected in accordance with law.

5. As regards the objection about the tenability of this revision petition, in absence of an application under Order 9, Rule 13, Civil Procedure Code having been filed before the lower Tribunal itself, I am of the opinion that the Division Bench of this Court in the case of Nagar Palika Nigam, Gwalior v. Motilal Munnalal, 1977 MPLJ 562 = AIR 1977 MP 182, has concluded this point. In the aforesaid D.B. Judgment following the principles enunciated by this Court in Ramlal v. Rewa Coal Fields Ltd., 1966 MPLJ, 507, the Court was of the opinio