Timely filing of applications under procedural rules is essential to uphold eviction orders; ex parte judgments against deceased tenants are invalid without proper procedural adherence.

Bipin Chander Negi, Judge (oral)

The present petition has been preferred against the impugned order dated 9.1.2023 passed by the Rent Controller, Court No.2, Shimla, whereby two applications one filed under Section 5 of the Limitation Act and another under Order 9 Rule 13 H CPC have been allowed and the ex parte judgment dated

8.12.2017 had been set aside.

2. The petitioner in the case at hand is the landlord, who had filed a petition for eviction of the predecessor-in-interest of the present respondent. The Rent Petition bearing No. 33-2 of

2017/16 was decided ex parte on 8.12.2017.

1 Whether the reporters of the local papers may be allowed to see the judgment?

3. The respondent in the case at hand in the application seeking condonation of delay in filing the application under Ord.er

9 Rule 13 CPC averred that she became aware of the ex parte eviction order dated 8.12.2017, in June, 2018, when she was intimated by some neighbours that the process server was asking about the father of the respondent for effecting service in a matter pending before the executing Court. Immediately thereafter, it is averred that the respondent had contacted her counsel on 15.6.2018, who had informed her of the ex parte judgment. Copy whereof was immeudiately applied on 15.6.2018. The same was received on 1o9.6.2018.

4. Subsequent thereto, an application to proceed in the matter by the present respondent on behalf of her deceased father was got prepared. Other than the aforesaid, an application under Section 5 seeking condonation of delay in filing an application under Order 9 Rule 13 CPC was prepared, last but not H the least, an application under Order 9 Rule 13 CPC was also prepared for getting the ex parte judgment dated 8.12.2017 set aside.

5. The aforesaid applications were filed before the Court on 19.7.2018. The application seeking permission to defend the case on behalf of her deceased father was allowed vide order dated 3.5.2019. The same is being reproduced here-in-below for a ready reference:-

“This order shall dispose of an application under Section 151 CPC filed by the applicant Vidhu Khanna for permission to defend the case on behalf of h.er father. P The applicant is allowed to the limited extent qua the proceedings pending before the court i.e application for deposition of arrears of rent, execution petition, application under Section 5 of Limitation Act and application under Section 9 Rule 13 CPC. Since, in these application notices have already been issued at the instance of present applicant Vidhu Khanna, so leave is granted to the applicant to defend the said applications. Thus, application to the said extent is allowed for limi ted purpose. Application stands disposed off. Bet registered and tagged with the main case file for records.”

From ua perusal of the same, it is evident that other than the threoe applications filed, an application for deposition of arrears of rent had also been moved as is evident from the aforesaid order.

6. The application filed for condonation of delay and for setting aside ex parte judgment dated 8.12.2017 were vehemently opposed by raising numerous objections. Post H hearing the parties, the Court below was of the view that the application filed under Order 9 Rule 13 CPC was maintainable. Other than the aforesaid, the trial Court was of view that ex parte judgment dated 8.12.2017 in the case at hand had been passed against a dead person as the predecessor-in-interest of the present respondent i.e. her father (original tenant) had died on 29.11.2016 prior to the passing of the impugned ex pate eviction order dated 8.12.2017. Besides the aforesaid, the Court below was of the view that the reason for non-appearance appeared to be genuine and that the delay in filing the application under Ord.er

9 Rule 13 CPC had been sufficiently explained.

7. Heard counsel for the parties. Perused the impugned judgment and the record.

8. From a perusal of