Mangilal vs Kanchanbai - 1996 Supreme(MP) 1110

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Applicant : B.L. Pavecha
For the Respondents: Gangrade

Headnote:(1) Civil Procedure Code, 1908 – O. 9 R. 7 and 13 – no limitation is prescribed for application under R. 7 – even if limitation prescribed under R. 13 is applicable application filed within 30 days is within limitation.
       (2) Civil Procedure Code, 1908 – O. 22 R. 4 – substitution application – notice should be served on all legal representatives.
       (3) Civil Procedure Code, 1908 – O. 5 R. 2 – summons served without copy of plaint or application – service not valid.
       (4) Civil Procedure Code, 1908 – S. 11 and 115 – previous revision dismissed for want of prosecution – revision against final order – point taken in previous revision may be agitated.
        Short Note
       1. This is applicant – tenant's revision u/s. 23 – E of the M.P. Accommodation Control Act, 1961 r/w. Sec. 115 of the Code of Civil Procedure directed against the order of eviction dated 15.10.92 passed by the Rent Controlling Authority, Ratlam in case No. 10 – A/90 (7) 86 – 87.
       2. The respondent Kanchanbai filed application u/s. 23 – A (a) of the Act of 1961 for eviction of Late Sagarmal Modi, the father of the applicant for eviction from a residential accommodation forming part of a house No. 10, Dhanmandi, Ratlam on the ground that she bona – fide requires the suit accommodation for her own residence. The claim was resisted by Late Mangilal with the leave of the Court. During hearing of the eviction petition, Mangilal died on 12.10.90, intimation of which, was given on 7.11.90 by the counsel appearing for the deceased. Application for substitution of the heirs of the deceased – tenant was made by the respondent landlady the same day i.e., on 7.11.90. The application was allowed on 27.2.91 and the LRs were allowed to be brought on record. However, no notices of this application were issued to the proposed LRs before allowing the application. Notices for further hearing of the eviction petition were, however, ordered to be issued. One such notice was served on the applicant – Mangilal. On 26.3.91 when the case was taken up for hearing, neither of the said LRs appeared hence they were ordered to be proceeded against, ex – parte. On 8.4.91, statement of the landlady was recorded and the case was adjourned for her remaining evidence to 21.4.91 on which date the applicant Mangilal made an application under Or. 9 R 7 CPC praying for setting aside the ex – parte proceedings. The application was, however, rejected as time barred on 19.6.91. Revision petition filed against the order of the R.C.A. has also been dismissed by this Court on 12.3.92 for want of prosecution. Final order for eviction of the applicant Mangilal has been made on 15.2.93, thus giving rise to this revision.
       3. I have heard Shri B.L. Pavecha, learned Sr. Counsel with Shri Ashish Gupta for the applicant and Shri Gangrade learned counsel for the non – applicant.
       4. Three things were luculent from the proceedings of the R.C.A. One : that, the order for substitution of the LRs was made straightaway without first giving them any opportunity to show cause against the proposed substitution; two : notice issued to the LRs for further hearing of the eviction matter were also not served on all of them but only on the applicant Mangilal and he too was not delivered any copy of the eviction petition ; and three : the application made under Or. 9 R 7 CPC by mangilal was dismissed as time barred without considering the same on merits.
       5. Taking the last point first, it may be made clear that no period of limitation is as such prescribed for making application under Or. 9 R 7 CPC. Even assuming that the period of limitation prescribed for an application under R 13 of Or. 9 would apply to the application under R 7, then also I find, that the application was well within limitation having been made within 30 days of the order dated 26.3.91 when the LRs were ordered to be proceeded against, ex – parte. The learned R.C.A., therefore, acted with gross illegality in rejecting the application as time barred.
       6. Before allowing substitution, notices were also required to be issued to the LRs against the proposed substitution. However, this point is of not much importance as notices of the main petition for eviction were ordered to be issued to all the LRs and no dispute is raised by the applicant as to whether they are or are not the LRs of the deceased tenant.
       7. The order dated 26.3.91 directing ex – parte proceedings against the LRs was also not in accordance with law inasmuch as no service was affected at all on the other LRs (other than the applicant Mangilal). Even service of notice on Mangi1al was not valid as the notice was not accompanied by the way of the eviction petition (See: Bhagirath v. Bhanwarpal 1980 JLJ 573).
       8. It is true, that the revision petition filed by the applicant against the order dated 19.6.91 rejecting the application under Or. 9 R. 7 CPC, has been dismissed by this Court for want of prosecution. This would not, however, disentitle the applicant to reagitate the point in this revision filed against the final order of eviction. He is entitled to assail the eviction order on the ground that his application under Or. 9 R 7 has been wrongly rejected by the R.C.A.
       9. In the result, the revision petition is allowed and the order impugned is set – aside. The petitioner – defendant's application under Or. 9 R 7 CPC thus also stands allowed and the entire proceedings held ex – parte on and after 26.3.91 against him are quashed. The R.C.A. shall proceed to decide the case afresh in accordance with law after taking evidence of both the parties. Lest this should cause further delay in the decision of the case, it is directed that both the parties shall appear before the R.C.A. on 12.9.96 and no fresh notices shall be required to be issued to them for further hearing in the matter. The R.C.A. is directed to dispose of the case within three months from the aforesaid date.
       10. The revision thus stands disposed of as aforesaid but without any order as to costs.