1987 Supreme(MP) 553

IN THE HIGH COURT OF MADHYA PRADESH
R.K. Verma, J.
Nivedita Sharma – Applicant
Versus
Virendra Nanawati – Non-applicant
C. R. No. 24 of 1987 (I)
Decided On : 23-06-1987

Headnote:Civil Procedure Code, 1908 – O.9, R. 13 – ex parte decree passed without notice though ordered to be served – rightly set aside.

        Short Note

       1. In the eviction case No. 528/1984, the Rent Controlling Authority Shri Vyas bad apparently been not authorised to act as a Rent Controlling Authority and be had adjourned the case to 18 – 7 – 1984 and then on 10 – 12 – 1984, be ordered both the parties to be summoned for 10 – 1 – 1985. But neither the non – applicant – tenant nor his counsel was given notice of the said date of hearing. Similarly, it was again ordered vide order – sheet dated 25 – 3 – 1985 to inform the counsel for the non – applicant for the next date of bearing i.e. 15 – 4 – 1985. But no notice in compliance with that order – sheet was given. But on 15 – 4 – 1985, the Rent Controlling Authority proceeded ex – parte and after examination of the applicant heard the arguments and fixed the case for orders on 9 – 12 – 1985, the Don – applicant made an application under order 9, Rule 7 of the Code of Civil Procedure to set aside the exparte proceedings. This application was dismissed by the Rent Controlling Authority on 5 – 2 – 1986 and on the same day, the Rent Controlling Authority passed the final order decreeing the applicant’s claim for eviction whereby the non – applicant was directed to give vacant possession of the rented premises in question.

       2. The non applicant then filed an application under Order 9, Rule 13 of the Code of Civil Procedure on 20 – 2 – 1986 for setting aside the exparte decree which was opposed by the applicant who filed her reply on 9 – 4 – 1986. The learned Rent Controlling Authority found that although on 10 – 12 – 1984 and on 25 – 3 – 1985 issue of notice to the non – applicant was ordered, but no notice in fact was given to the non – applicant or his counsel. In the circumstances, the exparte proceedings culminating in ex parte decree was found not justified and as such the Rent Controlling Authority, has, by the impugned order, set aside the exparte decree and ordered to start proceedings after due notice to either party.

       Held: Learned counsel for the applicant has submitted that as the High Court by an interlocutory order passed on 24 – 4 – 1984 in M. P. No. 998/1984, had directed that the Rent Controlling Authority shall proceed with the case before it, but shall not pass final order thereon, the non – applicant was supposed to attend the proceedings before the Rent Controlling Authority throughout until passing of the final order and it was not necessary for the Rent Controlling Authority to issue notice to the non – applicant or his counsel as had been ordered by the Authority on 10 – 12 – 1984 or 25 – 3 – 1985. However, the fact remains that the Rent Controlling Authority had ordered notice to the non – applicant and his counsel but there has been no compliance with that order. It is also apparent that the Rent Controlling Authority was not duly authorised to act as such authority and that defect necessitated adjournment of the case. In the circumstances, if the Rent Controlling Authority at a later stage felt it necessary to summon the parties before it and ordered issue of notice to the non – applicant and his counsel, there was no illegality in it. After having ordered notice to the non – applicant and his counsel, it was obligatory on the part of the Rent Controlling Authority to see that its order was complied with and not to proceed with the case otherwise. The exparte decree passed without compliance with the direction regarding notice to the non – applicant and/or his counsel was, in the circumstances, rightly set aside by the impugned order passed by the Rent Controlling Authority. The impugned order, therefore, does not call for any interference in this revision. Revision dismissed.