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Judgment
Rakesh kumar Jain, J.—This revision petition is directed against the order dated 17.05.2010 passed by the learned Rent Controller, Kaithal by which an application filed by the Petitioner under Order 9 Rule 13 of the Code of Civil Procedure, 1908 [for short "CPC"] for setting aside the ex-parte order dated 15.01.2010, has been dismissed.
In brief, the Respondent/landlord filed a petition u/s 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 [for short "the Act"] for eviction of the Petitioner/tenant from the demised premises on the grounds of non-payment of rent, subletting and personal necessity. As per the zimni orders produced on record, the petition was filed on 21.08.2009 and the following order was passed on that date: -
"Petition presented today. It be checked and registered. Now, notice of its petition be issued to the Respondent for 30.10.2009 on filing of PF etc."
The said notice could not be served upon the Petitioner/tenant as there was a report of "Gair Abad" which means that nobody is residing at the said address. Hence, on 30.10.2009, following order was passed: -
"Notice issued to the Respondent received back with the report of Gairbad. Fresh notice be issued for 10.11.2009 on filing of correct address. Dasti process be given so desired."
On 10.11.2009, following order was passed:
Notice issued to the Respondent received back unexecuted. Fresh notice to Respondent be issued for 03.12.2009 on filing of summon and copy etc.
On 03.12.2009, following order was passed:
"Summon and copy not field. On the request, adjourned to 15.12.2009 for service of Respondent on filing of summon form and copy etc."
On 15.12.2009, the Court was on leave, therefore, the case was taken up on 12.12.2009 and was adjourned to 15.01.2010. On that date, the following order was passed:
"Munadi received back duly effected but none has come present on behalf of Respondent despite repeated calls. It is 3.00 p.m. Waited sufficiently. So, Respondent is proceeded ex-parte. Now, to come up on 06.02.2010 for ex-parte evidence."
After the aforesaid order was passed on 15.01.2010, the application was filed by the Petitioner for setting aside the ex-parte proceedings which has been dismissed vide the impugned order.
Learned Counsel for the Petitioner submits that there is no order on record from which it could transpire that the Court had directed the service upon the Petitioner by way of munadi, rather it is submitted that on 30.10.2009 the learned Rent Controller recorded that notice issued in the ordinary course could not be served upon the Petitioner and was received back with the report of "Gair Abad" and fresh notice was ordered to be issued on filing of correct address. However, no correct address was provided by the Respondent/landlord, meaning thereby the said address remained on the record for the purpose of service upon the Petitioner.
Learned Counsel for the Respondent is very candid and fair to concede that there is no order on record from which it could be made out that the service by way of munadi was ordered.
In view there of, the impugned order is patently erroneous as it runs contrary to the zimni orders having been passed by the learned Rent Controller. Thus, the present revision petition is allowed, the impugned order is set aside and the Petitioner is allowed to join the proceedings from the stage he was ordered to be proceeded against ex-parte.