IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 45 of 2011. Judgement reserved on: 27.8.2011. Date of decision: 14.10.2011. Smt. Sunita Devi ….. Petitioner. Vs. Arun Kumar & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Ajay Kumar, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate, for respondents No. 1 to 4. Kuldip Singh, Judge. This revision has been directed against the order, dated 30.3.2011 passed by learned Rent Controller (4), Shimla in case No. 57-2 of 02/98. The revision has been filed by tenant, who has been impleaded as respondent No. 3 in the rent petition before the Rent Controller. 2. The facts in brief are that respondents No. 1 to 4 have filed petition against respondents No. 5 to 7 and petitioner under Section 14 of H.P. Urban Rent Control Act, 1987 (for short, the Act) for their ejectment from building No. 139-140, one floor in 4th floor, Lower Bazar, Shimla on the ground that building is quite old, condition of the building further deteriorated when the building was gutted in fire on 25.11.1996. The landlords want to carry out building Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… and rebuilding work of the building which cannot be carried out without the premises being vacated by the tenants. The building is required bonafide by the landlords for carrying out building, rebuilding and reconstruction work. The plan of the building has already been sanctioned by municipal corporation, Shimla on 2.12.1996. 3. The petition has been contested by the tenants. It is not necessary to give details of the defence in view of limited controversy involved in the revision petition. The petitioner was served by way of publication on 17.8.2010 before Rent Controller, but none appeared on her behalf despite service, therefore, she was proceeded ex parte. The petitioner filed an application on 24.3.2011 under Order 9 Rule 7 read with Section 151 CPC for setting aside ex parte order dated 17.8.2010. The application has been dismissed by the learned Rent Controller on 30.3.2011 by way of impugned order, which has been challenged in the revision petition. 4. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the petitioner that learned Rent Controller has dismissed the application on the ground of limitation and also that application is malafide. The learned counsel has submitted that no limitation is provided for filing an application for setting aside ex parte order under Order 9 Rule 7 CPC and, therefore, the residuary Art. 137 of the Limitation Act, 1963 will apply for filing an application for setting aside ex parte order. He has contended that observation of the learned Rent Controller that application is malafide has not been substantiated with reasons. He has relied Delhi Development …3… Authority vs. Shanti Devi and another AIR 1982 Delhi 159 in support of his submissions. The learned counsel appearing on behalf of respondents No. 1 to 4 has supported the impugned order and has submitted that no case has been made out by the petitioner for interference. The learned Rent Controller has exercised the jurisdiction properly. He has prayed for dismissal of the revision petition. 5. The admitted facts are that petitioner was served through publication in daily Amar Ujala dated 17.8.2010, none appeared on behalf of the petitioner before the learned Rent Controller and, therefore, she was proceeded ex parte. The petitioner filed an application under Order 9 Ruler 7 read with Section 151 CPC on 24.3.2011, which was contested by the respondents. 6. In the application for setting aside ex parte order dated 17.8.2010, it has been stated that on 21.3.2011 petitioner came to Shimla, she was informed by one Jiwan Khanna a tenant in the top floor of the same building that landlords have filed the eviction petition, which is pending adjudication. The petitioner asked her counsel to find out the details and it was transpired that petitioner was impleaded as respondent No. 3 before the Rent Controller and she was proceeded ex parte on 17.8.2010. The petitioner had no knowledge or information about the case pending against her. She is residing and settled at Ambala. The petitioner did not come across the newspaper in which her service was effected. The said paper has no circulation in Ambala. The application has been filed from the date of knowledge, otherwise also the application is within limitation. The …4… petitioner is not on talking terms with her co-respondents, who did not tell her about the pendency of the case. The prayer has been made for setting aside ex parte order dated 17.8.2010 and that the petitioner may be allowed to contest the petition. 7. The application has been contested by the landlords by filing reply by taking preliminary objections that application is malafide and has been filed in collusion with other co-respondents who are mother and brothers of the petitioner. The purpose of the application is to delay the proceedings. The petition was filed on 24.9.1998. The application is barred by limitation. The petitioner had knowledge of proceedings and she has filed the application at the fag end of the case. On merits, it has been stated that Joginder Dass was the original tenant. The petitioner was rightly proceeded ex parte. No application has been filed for condonation of delay. There is no ground to set-aside ex parte order. 8. The application has been dismissed by the learned Rent Controller on the grounds that petitioner was served through publication on 17.8.2010, it can be presumed that petitioner had due notice of the date of hearing, which was fixed on 17.8.2010 on which date the petitioner failed to appear. The effect of substituted service is as good as personal service. The application filed is time barred. No application for condonation of delay has been filed nor oral prayer was made for condonation of delay. The application is malafide. 9. In Delhi Development Authority (supra), after noticing Rule 7 of Order 9 of the Code, it has been held that under the Limitation Act no period is prescribed for filing an application for …5… setting aside the order proceeding ex parte. The defendant under Rule 7 of Order 9 CPC is allowed to file an application at or before the next date of hearing and if he assigns a good cause for his non- appearance on the previous date of hearing, the court may set-aside the order proceeding ex parte. On behalf of the respondents No. 1 to 4, no provision of Limitation Act has been shown providing limitation for filing application for setting aside ex parte order under Rule 7 of Order 9 CPC. The Rule 7 of Order 9 CPC provides that where the court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the date fixed for his appearance. 10. The learned Rent Controller has not rejected the application on the ground that petitioner had not filed the application for setting aside ex parte order dated 17.8.2010 at or before the next date of hearing in the rent petition. The application has been dismissed on the ground of limitation. The learned Rent Controller has not considered `good cause’ as provided in Rule 7of Order 9 CPC and as submitted by the petitioner in the application. The application has been dismissed after observing that application is malafide, but no reasons have been recorded in the impugned order in support of the observation that on what basis the application is malafide. 11. In Mussadi and others vs. Jai Gopal and others 1994 (1) SLJ(HP) 90, the plea raised was that separate applications ought …6… to have been made, under Order 22 Rule 9 of the Code of Civil Procedure and under Section 5 of the Limitation Act, which has been answered as follows:- “Even the other and more technical plea raised by the learned counsel for the respondents that separate applications ought to have been made, one under Order 22 Rule 9 of the Code of Civil Procedure and the other under Section 5 of the Limitation Act cannot be accepted for the reasons that in case an application is made praying for an appropriate relief by stating therein the reasons for not approaching the Court within the period of limitation and the facts as stated therein make out a sufficient cause for not approaching the Court in time, the prayer for condoning the delay is implied and it is not necessary that the applications should also bear a caption having been under Section 5 of the Limitation Act.” 12. In the application for setting aside ex parte order, it has been stated that petitioner has come to know ex parte order on 21.3.2011 on her visit to Shimla. In the application, it has been stated that petitioner permanently resides at Ambala. On 21.3.2011 on her visit to Shimla she was informed by one Jiwan Khanna a tenant in the top floor of he same building that landlords have filed eviction petition, thereafter on inquiry the petitioner came to know ex parte order dated 17.8.2010. It has been pleaded that application is within time from the date of knowledge. The prayer has been made in the application for setting aside ex parte order dated 17.8.2010 and petitioner may be allowed to contest the petition on merits. 13. The law laid down in Mussadi (supra) can be safely applied in the facts and circumstances of the case. No separate application under Section 5 of the Limitation Act was necessarily required to be filed alongwith the application for setting aside ex parte order even if it is assumed that some period of limitation is provided …7… for filing an application for setting aside ex parte order. In view of Mussadi (supra), prayer for condonation of delay is implied in the prayer for settling aside ex parte order and allowing the petitioner to contest the petition on merits, when from the application under Order 9 Rule 7 CPC it emerges that petitioner has made all necessary averments, which if considered, are sufficient to condone the delay. The learned Rent Controller has not considered the averments made in the application whether the petitioner has made out a case for condonation of delay in filing the application for setting aside ex parte order dated 17.8.2010. 14. There is no denial of the fact that petitioner is ordinarily resident of Ambala. She has stated in the application that she is not in good terms with her co-respondents (in the rent petition). She has also stated that she came to know ex parte order only after 21.3.2011. No doubt, the ejectment petition was filed in the year 1998 and is quite old but this is no reason to scuttle the proceedings on ground not available in law. The parties even in an old matter have right to pursue or defend the proceedings in accordance with law. The parties cannot be denied their rights to pursue or defend the proceedings merely on the ground that proceedings are old. The learned Rent Controller has not properly appreciated the application and material on record in the impugned order. 15. In view of above discussion, the application filed by petitioner for setting aside order dated 17.8.2010 is allowed and the impugned order dated 30.3.2011 is set-aside. The parties through their counsel are directed to appear before the learned Rent …8… Controller on 28.10.2011. The record of the Rent Controller be sent back immediately so as to reach before the date fixed. The learned Rent Controller shall make every endeavour to dispose of the rent petition in six months from the date of receipt of the record. Interim order dated 28.4.2011 vacated. CMP No. 344 of 2011 is disposed of in view of disposal of revision petition. October 14, 2011. ( Kuldip Singh ), (Hem) Judge.