JUDGMENT R.H. Zaidi, J.
1. The present petition arises out of proceedings under Section 21, of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. 13 of 1972), for short the Act. and is directed against the order dated 30.1.1997 whereby the application filed by the petitioner for setting aside the ex parte order dated 19.11.1992 releasing the building in question (shop) was dismissed by the Prescribed Authority, the IIIrd Additional Chief Judicial Magistrate, Lucknow.
2. The relevant facts of the case, giving rise to the present petition, in brief, are that late Prabhu Dayal (landlord), filed an application under Section 21 of the Act for release of the shop in dispute, for his personal use and occupation, on the ground of his bona fide and genuine need. The said application was registered as P. A. Case No. 47 of 1990. On the said application, notices were issued to the petitioner, who was in occupation of the said shop as a tenant. On receipt of the notices, petitioner appeared in the Court of Prescribed Authority and also filed his written statement. It may be noted that petitioner claims that Prabhu Dayai filed P. A. case which was subsequently registered as P. A. Case No. 40 of 1990 in the Court of 1st Additional Civil Judge. Lucknow. On the other hand, the contesting respondents claim that Case No. 40 of 1990 was filed by the petitioner with a view to obtain favourable ex parte orders against late Prabhu Dayal the predecessor respondent Nos. 2 to 8 and landlord of the building in question. There are allegations and counter-allegations with respect to the filing of the said case against each other, but the said controversy for the purposes of said case was rendered otiose and futile inasmuch as the said case was ultimately dismissed in default and none of the parties applied for its restoration.
3. It has been stated that Prabhu Dayal died on 2.11.1990. The petitioner thereafter appeared in the Court on 22.12.1990, but as the contesting respondent did not take steps for substitution of heirs of late Prabhu Dayal, he did not appear and attend the Court thereafter and did not have any knowledge of the proceedings in the case. From the record of the case, it appears that on 30.11.1990 substitution application was filed, on behalf of the contesting respondents and it was allowed ex parte. Thereafter several dates were fixed in the case before the Prescribed Authority. Ultimately vide order dated 20.7.91 passed by the District Judge, the aforesaid case was transferred from the Court of IVth Additional Civil Judge to the Court of Vth Additional Civil Judge. The transferee Court issued notices to the petitioner in the month of September, 1991. Thereafter steps were taken by the contesting respondents for service of notices upon the petitioner by registered post and as the registered cover was not returned unserved/undelivered by the post office. The Prescribed Authority presumed the said notice to have been served vide its order dated 30.1.1992. On the said date following order was passed :
"Put up today. Applicant's counsel not present. Registered notice not returned. More than nine months have elapsed. Hence service on opposite parly is presumed. Fix 5.3.93 for written statement." Sd. 30.1.1992."
4. It appears that although the service of the notice upon the petitioner was held to be sufficient but the Prescribed Authority subsequently came to the conclusion that service was not sufficient, therefore, on 6.3.92 fresh notices were directed to be issued. Steps were to be taken by the contesting respondents till 16.7.92. Thereafter, the case was adjourned from time to time for taking steps, but according to the petitioner, steps were not taken and the service of notice was again held to be sufficient on 30.7.92, and the case was directed to be put up on 1.9.1992. On 1.9.1992 petitioner did not appear in the Court. Consequently, it was on 12.11,1992 that evidence in the form of affidavits was produced by the contesting respondents. Arguments were heard and judgment was reserved fixing 19.11.1992 for delivery of judgment. On 19.11.1992, the judgment was delivered whereby the release application filed by Prabhu Dayal was allowed in favour of the contesting respondents ex parte. Petitioner claims that he had absolutely no knowledge or notice of the aforesaid ex parte order. It was only on 14lh January, 1993 that respondent No. 2 asked him to vacate the shop and not to deposit the rent with the Court. Petitioner thereafter contacted his counsel, who on 16.1.1993 filed questionnaire and obtained answer from the Court of respondent No. 1. Thereupon petitioner came to know that on 19.11.1992 release application was allowed ex parte. It has been stated that after the death of Prabhu Dayal, petitioner was not tendered/delivered any notice/in formation from the Court of respondent No. 1. As soon as he came to know about the aforesaid order, immediately on 12.2.93 he applied for setting aside the ex parte order.
5. The application filed by the petitioner was objected to and contested by the contesting respondents who filed their objections supported by an affidavit. The facts stated in the said application were controverted and it was asserted that the petitioner had full knowledge of the proceedings in Case No. 47 of 1990. He used to appear in the Court till 22.11.1990 ; but thereafter deliberately absented from the Court and did not participate in the proceedings for fear of his being prosecuted for perjury and forgery alleged to have been committed by him for filing P. A. Case No. 33 of 1990 in the Court of 1st Additional Civil Judge. Lucknow. The Prescribed Authority after hearing the learned counsel for the parties dismissed the application of the petitioner by it s judgment and order dated 30.1.1997 and upheld the ex parte order dated 19.11.1992 holding that the application for setting aside the ex parte order was filed beyond the period of limitation prescribed for the same, was held that petitioner appeared in the case upto a particular stage. Therefore, the contention of the petitioner that he came to know about the ex parte order, subsequently could not be accepted. The submission made on behalf of the petitioner that other cases were also pending disposal in other Courts between the parties and, the contesting respondents did not disclose about ex parte order in the said cases was also not accepted holding that contesting respondent was not liable to disclose the petitioner about ex parte order.
6. Learned counsel for the petitioner vehemently urged that the limitation for filing the application should be counted from the date of knowledge of the ex parte order dated 19.11.1992 and not from the date of the order. According to him. the application for setting aside ex parte order was filed well within the limitation prescribed for the same, alternatively under the facts and circumstances of the present case the delay, if any, was liable to be condoned by the Court below.
7. On the other hand Kumari Vishwa Mohini, learned counsel appearing for the contesting respondents vehemently urged that applicant had full knowledge of Case No. 47 of 1990. the notices issued by the Prescribed Authority were served on him and thereafter he appeared in the case and continued to appear till 22.11.1992, but thereafter, he deliberately absented from the Court. It was urged that petitioner after 22.11.1992 ought to have found out as to what was the progress in the said case and what was the result of the same. Kumari Vishwa Mohini, Advocate urged that the case having been decided ex parte on 19.11.1992 the application for setting aside the ex parte order having filed after inordinate delay the same was clearly barred by limitation and was rightly rejected by the Prescribed Authority. It was also urged that petitioner has not even filed the application for condonation of delay. The writ petition was, therefore, liable to be dismissed.
8. Learned counsel for the parties have also referred and relied upon the decisions of the Apex Court and this Court in support of their submissions, which I will notice and deal with subsequently.
9. I have considered the submissions made by the learned counsel for the parties and also carefully perused the record of the case.
10. Application for setting aside ex parte order dated 19.11.1992 was filed by the petitioner under Rule 32 read With Rule 33 of the Rules framed under the Act, which are reproduced below : (only relevant quoted) "32. Application for setting aside an ex parte order or for restoration.--Sections 4 (8) and, 41-- The District Magistrate, the prescribed authority or the appellate or revising authority, as the case may be. may for sufficient cause.
(a) set aside an ex parte order deciding an application for the determination of a dispute under Section 8 or, for the determination of standard rent under Section 9 or for the release of any building or specified part thereof or any land appurtenant to such building under Section 21 or for allotment of a new building under sub-section (2) of Section 24 or for restoration of any amenity under sub-section (1) of Section 27 or for major/ repairs under sub-section (4) of Section 28 or an appeal under. Section 10. or Section 22 or revision under Section 18 :
33. Limitation for application for restoration or for setting aside an ex parte order.--Sections 34 (8) and 41 --(1) application under Rule 32 to aside an order deciding an appeal or revision or application ex parte shall be made within thirty days from the date of such order or, where the notice of such appeal or revision or application was not duly served, when the applicant or appellant, revisionist, as the case may be, had knowledge of that order."
11. From a reading of the aforesaid Rules, it is apparent that limitation for filing an application for setting aside the ex parte order is thirty days from the date of the order ; but in cases where the notice of the appeal, revision or application was not duly served, the limitation shall be counted from the date when the applicant or revisionist acquired knowledge of ex parte order. In the present case, we will have to see, whether limitation was to be counted from the date of the knowledge of the ex parte order or from the date of the said order.
12. In the present case, notice of the application filed by late Prabhu Dayal was directed to be issued to the petitioner. The said notice was also served upon him and the petitioner put in appearance through his counsel. Prabhu Dayal admittedly, died on 2.11.1990. After the death of Prabhu Dayal, it was obligatory upon the contesting respondents to make an application for substitution of the heirs of Prabhu Dayal, if they wanted to continue the proceedings. The notice of the said application was required to be given to the petitioner. The petitioner after 22.11.1990 did not appear in the Court. The substitution application was filed by the contesting respondents and was also allowed by the Prescribed Authority and there is no material on the record to show that notice of said substitution application was ever served upon the petitioner. The substitution application is alleged to have been allowed on 7.1.1991 and thereafter proceedings in the case continued in the Court of IVth Additional Civil Judge, till 22.8.1991 when under the order dated 20.7.91 passed by the District Judge, case was transferred to the Court of Vth Additional Civil Judge. The order dated 22.1.1991 was passed in the absence of the petitioner. There is nothing on the record to show that the procedure prescribed under Rule 89A of Chapter 3 of General Rules (Civil) was followed by the transferring or transferee court in the present case. The transferee court is alleged to have issued a notice, but the same was not served upon the petitioner personally, but the notice was presumed to have been served on 30.1.1992. Thereafter instead of proceeding ex parte in the case, the transferee court itself entertained doubt regarding service of notice upon the petitioner, therefore, on 6.3.92 again directed fresh notice to be issued to the petitioner and the contesting respondents were directed to take steps of service of notice. It is stated that till 30.7.1992. no steps were taken for service upon the petitioner. The Court below, however, again on 31.11.1992 presumed the service of the notice sufficient and fixed the case for 1.9.92. The presumption of service to be made under Order 5. Rule 3. C.P.C. as amended by our High Court is not a conclusive presumption, but rebuttable. Under the aforesaid facts and circumstances of the case, there was no justification for the Court below to presume the service of the notice sufficient on 3.11.1991 when even the steps were not taken for service. Even assuming that steps were taken and notices were also issued, they were never served personally on the petitioner, the presumption of service, if any, was specifically rebutted by the petitioner by filing an affidavit, wherein it was specifically stated that the notices/summons issued by the Court below were never tendered to him, nor the petitioner was otherwise informed about the proceedings in the case or ex parte order. It was stated that respondent No. 2 personally asked the petitioner on 4th January, 1993 not to deposit rent in the Court and to pay the same to her. Thereafter, the questionnaire was filed and answer was obtained from the Court concerned on 16.1.1993 from which the petitioner came to know about the ex parte order dated 19.11.1992, and application for setting aside ex parte order was filed on 12.2.1993 within thirty days of the knowledge of ex parte order. The contesting respondents in reply to the facts stated in the application filed under Rules 32 and 33 of the Rules, filed a counter-affidavit. In paragraph 8 of the counter-affidavit, they have simply stated that petitioner had full knowledge of the proceedings in the case and the order passed ex parte against him. Contesting respondent did not produce any evidence in support of their case to prove that notice was served upon the petitioner or that he had otherwise knowledge of the ex parte order. Thus, in the absence of service of notice by, the transferee court upon the petitioner of the date fixed in the case for hearing in the said Court, petitioner cannot be attributed knowledge of the ex parte order passed by the said Court. Therefore, the limitation for filing an application under Rule 32/33 will have to be counted from the date of knowledge of the ex parte order and not from the date of the order. The submission made by the learned counsel for the contesting respondents to the contrary, therefore, cannot be accepted. Learned counsel for the contesting respondent in support of her submission that the limitation for filing the application under Rule 32/33 was to be counted from the date of the order referred to and relied upon the following decisions :
(1) Rqjendra Bahadur Singh v. Jugal Kishore Sureka and others, (1993) (2) ARC 517.
(2) Shiv Charan Das v. Dilip Singh Vaish and another. 1981 (1) ARC 584.
13. In Rajendra Bahadur Singh's case (supra), the notices issued by the Court were served, but the opposite party thereafter did not appear in the case and after the case was decided ex parte he made an application for setting aside the ex parte order beyond period of limitation by three months, without an application for condonation of delay, prayer for condonation of delay was also not made orally. It was. therefore, rightly ruled by this Court that the Court had no option, but to dismiss the application as barred by limitation, In the said case, the question of counting limitation from the date of knowledge was neither raised or considered. Similarly in Shin Charan Das's case (supra) the finding returned by the Court below was that petitioner failed to prove that he had no knowledge about the date of hearing of the suit for eviction. In the said case the tenant attended Court after receipt of notice from the Court and thereafter absented. The explanation furnished by htm was rejected by the Courts below. This Court, therefore, rightly upheld the orders and dismissed the writ petition.
14. In Captain V. P. Sharma's case (supra), this Court was considering the appeal arising out of proceedings under Order IX, Rule 13, C.P.C. The ex parte decree was passed on 28.9.91 and application for setting aside ex parte decree was filed on 2.7,92, i.e., about nine months after the decree was passed. In the said case the summons were served upon the defendant-appellant properly and personally. This Court, therefore, rightly held that the knowledge of the ex parte order can be taken as starting point of the limitation in the case, where summons are not served properly. On facts it was held that the defendant participated in the proceedings, therefore, starting point of the limitation cannot be the date of knowledge of the ex parte decree, but the date on which the decree was passed.
15. In Vijay Kumar Durga Prasad's case (supra) the defendant-appellant did not act diligently. On the other hand as he was in possession of the property adopted dilatory tactics. There was no bona fide or genuine reason for his non-appearance. The trial court after recording specific findings against him. dismissed the application. High Court also upheld the order and affirmed the findings recorded by the trial court. The Apex Court was rightly pleased to refuse to interfere into the matter.
16. The aforesaid cases are thus distinguishable and are not applicable to the facts of the present case, inasmuch as after the case was transferred from the Court of IVth Additional Civil Judge to the Court of Vth Additional Civil Judge, what to say of sufficient service of notice, even the steps were not taken by the contesting respondents to serve the petitioner ; but the Court below had proceeded to decide the case ex parte. The petitioner, therefore, cannot be attributed knowledge of ex parte order from the date of the order. In view of the aforesaid discussion, the present petition deserves to be allowed.
17. The writ petition succeeds and is allowed. The impugned order dated 30.1.97 and the order dated 19.11.1992 are hereby quashed. The case is remanded to respondent No. 1 for decision afresh after affording the parties opportunity of hearing and in accordance with law. As the matter is pending disposal in the Court since 1990. It is further directed that the case shall be decided expeditiously preferably within four months from the date a certified copy of this order is produced before respondent No. 1. No order as to cost.