IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.58 of 2011 Date of decision: 16.3.2011 Lekh Raj Tekra …. Petitioner Versus Neena Mittal ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner: Mr.Romesh Verma, Advocate. For the respondent: Mr.Pratap Singh Goverdhan, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. This petition is directed against the order dated 15.1.2011 passed by the learned Rent Controller whereby he rejected the application filed by the petitioner under Order 9 Rule 7 read with Section 151, CPC for setting aside/recalling the order dated 8.12.2010 whereby he was proceeded against ex parte. 2. The respondent (hereinafter referred to as the ‘landlord’) filed an Eviction Petition against the 2 petitioner (hereinafter referred to as the ‘tenant’). The tenant was served for 19.6.2010 when counsel appeared on his behalf. The matter was adjourned for filing reply to 4.8.2010. On this date, the Court adjourned the matter without any formal proceedings to 29.10.2010. On 29.10.2010 also, reply was not filed but the case was adjourned to 8.12.2010 and last opportunity was given to the tenant to file reply to the Eviction Petition. 3. According to the learned counsel for the tenant, he noted the date as 8.11.2010 instead of 8.12.2010 and on 8.11.2010, on the notice board, a notice had been affixed that all cases fixed for 8.11.2010 would be taken up on 1.1.2011. On 1.1.2011 when he appeared in Court, he found that the case was not listed and when he made further inquiries, he came to know that the case was taken up on 8.12.2010 and the tenant had been proceeded against ex parte and the case had been fixed for 22.2.2011 for ex parte evidence of the landlord. Thereafter, he moved an application on 5.1.2011 which was rejected. Hence the present petition. 3 4. One of the grounds which weighed with the learned Rent Controller was that this application was not filed on 1.1.2011 itself and secondly that last opportunity had already been given to the tenant to file reply and in case he wanted to show his bona fides, he should have filed a copy of the reply alongwith the application for setting aside the ex parte proceedings. In fact, this approach of the learned Rent Controller, in my view, is correct and it cannot be said that anything is wrong in this part of the order. When a party has been given last opportunity to do a particular act and does not appear on that date for any reason then when it wants to get ex parte proceedings or dismissal in default set aside, it must show that it was ready to perform the duties which it was supposed to perform on or before the date when the order was passed against it. 5. Be that as it may, I am of the view that since the proceedings are still at the initial stage and the evidence of the landlord is still to be recorded, the interest of justice will be served in case the petitioner- tenant is given an opportunity to file reply to the 4 petition subject to payment of reasonable costs. Therefore, the petition is allowed and the impugned order dated 15.1.2011 is set aside. The tenant is permitted to contest the proceedings. 6. I have been informed at the Bar that the case is now fixed in the month of July, 2011 for further orders. The parties are directed to appear before the learned Rent Controller on 18.4.2011 on or before which date, the tenant shall pay costs of Rs.3000/- and file reply. In case costs are not paid or reply is not filed on or before 18.4.2011, this petition shall be deemed to have been dismissed. In case costs are paid and reply filed and the landlord so desires, he may be given an opportunity to file replication. Issues shall be framed on or before 15.5.2011 and the matter be listed for evidence on the date which is already fixed in the month of July, 2011. 7. The petition is disposed of in the aforesaid terms. March 16, 2011 ( Deepak Gupta ) (m) Judge