1; — ft IN THE HIGH COURT OF :<ARNATAM\ T SAHGALRE DATED THE 27TH DAy OF JULY 1998 BEFORI THE HON’3LE IR, JU’TICF I, nNGAvIrr;LACHAR P,No,72219Q4M 72 1994 94 Bibi) an since deceased by her L,Rs. 1, Rahim Khan alias Banu, on of tne sate Jamal Xban, aced about 36 years 1 2, Riyaz :<han, Son of tho te Jamal <ban, qed )ut C years, Ut a,So ofte ar lMfai, ae abo t 8 years. P 1 r reidlnq a apsna Mu swamy 3arden, Ia Id Str°et, 1st Dross, Neelasanfra, 3anaaor—47, (&ended as per tho Order of the don’ ale Court 2 j flfl\ fl”D At 4 I 1 .2!) . , 2 , , —2— 1994 Abdul Salam since deceased by L,Rs. 1. Irshad, Son of the late Abdul Salam, aged about 27 years 4 2. Sajjad, Son of the late..• Abdul Salar., age.•d about 20 years ResIding at No.46/I, Anepalya, 8th Cross, Audugodi Post, CaJ endranagar, Ban alore—30, (Aflen&nent carried out as per the Court orders dt .6.11,97) ,,PETITIONERS, 994 xabooob Ci, Aced about 60 years, Wife of the Late Basha Bhai, No.35, II Portion, Eastern Door, Gundappa Street, Neelasandra, Bangalore— 560 047, ,,PETITIONER, (By Sri, S.1., C. Azam & Associotes for Petr, Cornmcn in all the petitIons) 4 ‘ 4 F I .e3e 1. Zhamrunnin, Wife of t)* late Zahiruddin. 2. Sirajuddin, Son of the late Zahiruddin. 3. Shamsuddin, Son of the late Zahiruddin. 4. Nooruddin, Son of the late Zahiruddin. All are residing at No.174/C, South Street Cross, Neelasandra, Bangalore—560 047. .. . .RESPONDENTS. (Connon in all the petitions) (By Sri. M.L. Dayananda Kumar, Advocate Cousnon in all the petitions) HRRPs are filed ifs 115 of CPC against the order dated 16.7.1994 passed in Misc.No.10053, 10054/87 & 10052/87 on the file of the Mdl. Judge, Court of Snall Causes, Mayo Hall, Bangalore. These HRRPs coming on for HEARING this day, the Court made the following:e . .4.. ORDER H.R.R.P.NO.1720, 1721 & 1722/1994 These are the tenants petitions against the orders of the learned Judge of the Small Causes dismissing their applications filed before him for setting-aside the exparte order The short question that Is Involved in this case is whether the learned Judge of the Small Causes after having found as a fact that the revision petitioners/tenants were not served with notice of the eviction petitions was Justified in dismissing the application solely on the ground that, the eviction orders passed pursuant to the exparte orders have already been executed “This question is no longer resintegra.’ In view of the decision of this Court in the case of MANICK ENTERPRISES vs HUI SUIAIMAN reported in 1988(2), K, 216 in wh.ich it. has been held as follows: “Therefore, the short question which falls for detennination in this revision petition is whether that could be a ground for exercising or not exercisino discretion vested in the trial court under Order 9 R.13 Under Order 9 Rule 13, the aoplicant or petitioner is * .5, , —5— required only to show sufficient c-ause for his absence at the hearinc of the case where and when he was required to be present.... The Court has to look at that and nOther factor in making up its mind while passinc an order. That he as been evicted from the premises is no reason to deny him the benefit of setting aside the ex—oarte order disuissing the Mjscellaneous Application which may be allowed or may not be allowed, When extraneous factors are taken into consideration 1 then there is improcer exercise of jurisdiction and this Court must interfere. Therefore the order impugned in this Revision petition is set-aside aid the court telow is directed to dispose of the application under 0,9 R 13 in accordance with law without reference to what has tanpened to the ex-parte decree of eviction which has since been executed,” In view of the decision of this Court referred to above, the orders mugned in this oetftion are set-aside, Consequently the applicatlons filed by the revision petitioners under 0,9 P.13 is allowed. ne ex—parte eviction orders passed in HRC Nos.l0011/87 & 10012/87, 100 14/87 are set—aside, The learned Judce of Small Causes is directed to hear and discose—off the said eviction petitions on merits after giving the revision petitioners an opportunity , , 6 , t 4 (1 CI ) Ii 4, st I. a I I ‘.• gt 1 * 4 t w0 ., 3 1 1 3 ) 0 1V s ‘3 e’ 3 00’3 I’ II) ‘I J t 1 30 0 t I a r’ S 113% 4, t • lgt 1 Ti 1 I”t Jai 0 • • $ 0 U S 6 4 0 1 4 e • 1 Vt L.3 a 0 , • • 4 ye I 4 ) I I. I 4 . ‘V C 3 1