:1: IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 371 OF 2011 Mr. Jaiprakash Chintaman Sardessai, r/o H.No.272, Ward No.4, Aquem, Alto, Margao Goa. … Petitioner V e r s u s Mr. Anthony C. Mendes, through his attorney Mr. Michael Francis Pinheiro, r/o Pinheiro Building, Aquem Alto, Margao Goa. … Respondent Mr. Sudin M. S. Usgaonkar with Ms. Prema Matkar, Advocates for the petitioner. Mr. C. A. Coutinho, Advocate for the respondent. CORAM : F. M. REIS, J DATE :2 nd DECEMBER, 2011 . ORAL JUDGMENT : Heard Shri Sudin M. S. Usgaonkar, learned Counsel appearing for the petitioner and Shri C. A. Coutinho, learned Counsel appearing for the respondent. 2. Rule. Heard forthwith by consent of learned Counsel. Shri C. A. Coutinho, learned Counsel waives service on behalf of respondent. :2: 3. The above petition challenges the judgment and orders passed by the Rent Controller as well as the Administrative Tribunal whereby the application filed by the petitioner to set aside the ex-parte order directing the eviction of the petitioner from the suit property came to be rejected. 4. Briefly the facts of the case are that an application for eviction was filed before the Rent Controller by the respondent seeking eviction of the petitioner on the ground of non-payment of rent, damaged to the suit premises, change of user and also on the ground that the petitioner has acquired vacant possession for residence in the same locality where the tenanted house is situated besides on the ground that the respondent bonafidely requires the tenanted premises for his own occupation. Somewhere on 25.04.2005 as the respondent failed to file his affidavit on several occasions and despite of several opportunities the learned Rent Controller dismissed the application for eviction filed by the respondent on the ground of non-prosecution. Accordingly, the petitioner came to be informed about the said order by his Advocate. On 7.11.2005 the respondent filed an affidavit of evidence before the Rent Controller despite of dismissal of the said proceedings. It appears that thereafter :3: the restoration of the eviction proceedings came to be allowed by the Rent Controller by an order dated 03.03.2006. The Rent Controller thereafter proceeded to consider the written arguments filed by the respondent on 20.03.2006 and disposed of the eviction proceedings by judgment and order dated 28.04.2006. The records further reveal that the petitioner was served in the execution proceedings for eviction on 20.05.2006 and immediately thereafter on going through the records of the proceedings the petitioner learnt about the ex-parte order passed by the learned Rent Controller and filed an application for setting aside the ex-parte eviction order immediately thereafter on 25.05.2006. It was contended by the petitioner that he was not duly served in the proceedings before the Rent Controller at the time when the application to set aside the order dismissing the original eviction proceedings filed by the respondent before the Rent Controller. After hearing the respondent, the learned Rent Controller by an order dated 29.08.2007 dismissed the application filed by the petitioner. A Revision came to be preferred before the Administrative Tribunal by the petitioner which was rejected by judgment and order dated 19.04.2011. Being aggrieved by the said judgment, the petitioner has preferred the present petition. :4: 5. Shri S. Usgaonkar, learned Counsel appearing for the petitioner has assailed the impugned judgment and pointed out that though the records reveal that the petitioner was not served at the time when the application to restore the original eviction proceedings, nevertheless, the application to set aside the ex-parte order came to be dismissed by the Rent Controller. The learned Counsel further pointed out that the records of the proceedings reveal that the respondent was sought to be served by registered post A/D and the A/D received by the Rent Controller itself manifest that the petitioner had not received the said notice. The learned Counsel further pointed out that the signature on the A/D card received by the Rent Controller was of one 'Prita' and not of the petitioner nor the respondent has established that the said person was an authorised representative of the petitioner. The learned Counsel further pointed out that the petitioner was always diligent in defending the eviction proceedings and it was only on account of the illegal exercise indulged upon by the respondent in filing an application for restoration of the eviction proceedings without duly serving the petitioner which resulted in the order of eviction being made by the Rent Controller. The learned Counsel further pointed out that despite of all these facts brought to the notice of the Courts :5: below, the same has not at all been appreciated by the authorities below and as such the Courts below have exercised their jurisdiction with material irregularity whilst passing the impugned judgment which deserves to be quashed and set aside. 6. On the other hand, Shri C. A. Coutinho, learned Counsel appearing for the respondent has pointed out that the petitioner has been duly served within the provisions of Rule 10 of the Rent Control Rules which contemplates that the service on the petitioner can be effected by registered post A/D. The learned Counsel has taken me through the impugned order and pointed out that both the Courts below have come to the conclusion that the petitioner has been duly served with the application filed by the respondent for restoration of the original proceedings and as such no case is made out for any interference with the impugned order. The learned Counsel further pointed out that once it is not disputed that the address shown in the registered letter is of the petitioner, the presumption under the provisions of law are available to the respondent to establish that the petitioner has been duly served with the said application for restoration. The learned Counsel as such submitted that no interference is :6: called for in the impugned judgment and orders. 7. Having heard the learned Counsel and on perusal of records, it is not in dispute that the A/D card received by the Rent Controller did not have the signature of the petitioner. The records further reveal that the person who has signed the said A/D is one 'Prita' and there is no evidence on record to establish that the said Prita was a member of the family of the petitioner or that she was duly authorised representative of the petitioner. Once such evidence was not available on record, it was not correct on the part of the Rent Controller to assume that the petitioner was duly served with the application for restoration filed by the respondent when on the contrary the records reveal otherwise. The provisions of Rule 10 of the Rent Control Rules contemplate that the service of such application can be effected by delivery and tendering to the concerned person or by registered post A/D or by affixation in specific circumstances. Considering that no attempt was made by the respondent to serve the petitioner by delivering the application for restoration personally nor was the notice affixed on the outer door of the residential house, it discloses that the requirements as envisaged under the provisions of the Rent Control Rules effecting service on :7: the petitioner has not been complied with by the respondent. The Courts below are not justified to come to the conclusion that the petitioner was duly served with the notice in respect of the application for restoration application. Once the signature on the A/D card was not proved to be that of the petitioner, the presumption if any, available to the respondent was rebutted and it was incumbent upon the respondent to show that the person was duly authorised to receive the said notice on behalf of the petitioner. Having failed to establish the said aspect, it was not open for the respondent to contend that the petitioner was duly served with the application for restoration filed by the petitioner. The Courts below have acted in material irregularity and exercised its jurisdiction erroneously whilst passing the impugned judgment and orders. As such the orders passed by the Rent Controller as well as by the Administrative Tribunal dismissing the prayer of the petitioner to set aside the ex-parte order of eviction filed against the petitioner cannot be sustained. The conduct of the petitioner further discloses that the petitioner did not deliberately have any intention to delay the disposal of the proceedings. The petitioner immediately after he came to know about the ex-parte order filed an application to set aside the ex-parte order within the time prescribed. This fact ought :8: to have been noted by the Courts below whilst passing the impugned orders to ensure that the substantial justice is done to the petitioner to decide the case put forward by the respondent on merits. In view of the above, the impugned judgment and orders of the Courts below cannot be sustained and deserve to be quashed and set aside. 8. In view of the above, I pass the following : O R D E R (i) The impugned order dated 29.08.2007 passed by the Rent Controller as well as the judgment dated 19.04.2011 passed by the Administrative Tribunal stand quashed and set aside. (ii) The application filed by the petitioner to set aside the eviction order dated 28.04.2006 is allowed. The Rent Controller Proceedings No. BLDG/31/ARC-IV/97 is restored to the file of the Rent Controller. (iii) The Rent Controller is directed to decide the proceedings after hearing the parties in accordance with law. :9: (iv) Rule in above terms. (v) The petition stands disposed of accordingly with no order as to costs. F. M. REIS, J at*