1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5016 OF 2009 Ramchandra Vishnu Parab ...Petitioner vs. Anant Ashram Jain ...Respondent Mr.Madhav Jamdar for the petitioner Mr.H.S.S.Murthy i/b Mr.N.Raja for respondent CORAM :A.S.OKA,J. DATE : SEPTEMBER 16, 2009 P.C. 1 Heard the learned counsel for the petitioner. The petitioner is the original defendant and the respondent is the original plaintiff. The respondent filed a suit for eviction against the petitioner under the provisions of Maharashtra Rent Control Act,1999 on the ground that the petitioner is a tenant and that the petitioner has committed a default in payment of rent. On 23rd August 2004, the learned Judge of the Small Causes Court passed a decree for possession in favour of the respondent. The learned Judge noted that inspite of the service of summons, the petitioner has not appeared and therefore, the suit proceeded exparte against him. During the pendency of the suit, the original plaintiff expired on 2nd April 2001 and thereafter, the respondent was brought on record. The decree for possession passed by the trial court was executed on 27th April 2006. On 22nd May 2006, an application was made by the petitioner for setting a side the exparte decree. The application (Miscellaneous notice) was dismissed by the trial court. An appeal was preferred by the petitioner. The said appeal has been dismissed. 2 2 The learned counsel for the petitioner submitted that courts below have completely ignored that even assuming that the petitioner was served with the summons, after the respondent was brought on record in the suit in place of the original plaintiff, a fresh summons has not been served to the petitioner along with an amended copy of the written statement. He pointed out that the respondent is not the landlord and in fact the suit premises are situated in the area which is declared as a slum. His submission is that by playing a fraud upon the court, the respondent has obtained a decree for possession. He pointed out that the respondent in his reply to the notice for setting aside ex-parte decree has referred to the payment of rent made on 25th March 2002. He submitted that by this petition, the challenge is not only to the orders passed on the application for setting aside the exparte decree but it is contended that the decree is nullity in view of the fact that the respondent or his predecessor were not the landlords and the suit premises is situated in the area which is declared as a slum. 3 I have carefully considered the submissions. An application made by the petitioner was for invoking Rule 13 of Order IX of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). In the application made by the petitioner, a specific contention has been raised that the summons was not served to him and even the notice of execution was not served to him. A reply was filed by the respondent contending that the summons was duly served to the petitioner. For dealing with the contention raised in the reply, a rejoinder was filed by the petitioner in which he reiterated that he was not served with the summons and that he was not aware about the pendency of the suit. It is stated that he 3 became aware of the suit and the decree only when he came back from his native place in April 2006. 4 It will be necessary to make a reference to the affidavit in support of the application filed by the petitioner. In paragraphs 1 and 2 of the affidavit the petitioner has stated thus : 1 I say that in the above matter the plaintiff has filed a suit against the defendant for vacating the suit premises in the year 2000. The summons has been served upon the defendant in the year 2000 itself. 2 I say that the defendant was regularly attending the matter from the summons served upon him. Thereafter, the petitioner proceeded to state that in the year 2001, there was a settlement between the parties and a sum of Rs.10,000/- was accepted by the respondent from the petitioner against a receipt. It was contended that the receipt was lost in the floods of 26th July 2005. In paragraph 7 of the affidavit it is stated that relying upon the words of the respondent, he stopped attending the court and continued to pay the rent. 5 In the application for setting aside the exparte decree, a specific case made out by the petitioner was that he was not served with the summons and he was not aware of the suit. However, in the affidavit filed in the same proceedings on 25th July 2006 which is referred to above, the petitioner came out with an altogether different case and in fact he admitted that he was served with the summons in the year 2000 and he was regularly 4 attending the suit from the date on which the summons was served upon him. The application for setting aside the decree proceeds on the basis that the petitioner was not served with the summons and that he was not aware of the suit. Thus, the subsequent affidavit filed by the petitioner shows that the case made out in the application was totally false. 6 In the circumstances, the courts below were justified in not granting a relief in favour of the petitioner in an application under Rule 13 of Order IX of the said Code. 7 This is a petition under Article 227 of the Constitution of India and therefore the factual controversy whether the decree is nullity or not cannot be gone into in this petition. Moreover, the conduct of the petitioner is such that extra-ordinary jurisdiction cannot be invoked in his favour. 8 Considering the conduct of the petitioner this is not a fit case for exercising extraordinary jurisdiction. Writ Petition is rejected. JUDGE