- (1.) Heard learned Counsel for the petitioners and perused the record. The facts of the case are that the shop in dispute is claimed to have been constructed on 1.4.1982 and given on rent @ Rs. 340/- per month to Sri Ibne Hasan; that the tenant had defaulted in payment of rent which was due upon him for the period 1.4.1990 to 21.12.1990, that registered notice dated 22.5.1990 was served upon the tenant terminating the tenancy. Sri Ibne Hasan died in the meantime. The notice by the landlord, aforesaid, was replied by Sakir Husain son of Ibne Hasan claiming himself to be the tenant of the shop in dispute. According to landlord, since there was some inadvertent mistake in the aforesaid notice, hence another notice dated 31.8.1990 was again served upon the tenants which was replied to by them by means of reply dated 7.9.1990 inter alia that he was joint tenant with the other members of the family of late Ibne Hasan, the tenant. Shishir Kumar, respondent No. 2 thereafter filed Suit No. 22 of 1990 in the Court of Civil Judge/Judge Small Causes Court on 22.12.1990 for a decree of arrears of rent and eviction of the tenant Ibne Hasan from the shop in dispute No. 30 (old No. 43/5-B) situated in mohalla Kishanpura, Bulandshahr Road, Hapur district Ghaziabad.
(2.) Written statement in the suit was filed by respondent No. 3 in the suit on 4.5.1998 that they are defaulters or any rent is due from the tenants. It was also claimed that their tenancy in the shop is since 1975. It was stated in the written statement that the landlord had himself not accepted the rent and correct facts in this regard had been given by the tenant on 23.8.1990 in reply to the notice of the landlord dated 22.5.1990. However service of the record notice by the landlord dated 31.8.1990 was denied and it was prayed in the facts and circumstances the suit be dismissed with costs.
(3.) An application under section 5 of the Limitation Act was moved by Shadab Hasan son of Late Ibne Hasan resident of house No. 481 Nai Abadi Peer Waligali Hapur District Ghaziabad-petitioner No. 1 alongwith an application under Order IX, Rule 13 and section 151, C.P.C. supported by an affidavit praying for restoration of J.S.C.C. Suit No. 22 of 1990 Shishir Kumar v. Smt. Rasidan and others by setting aside the ex parte order and judgment dated 17.3.2001 and decide the suit on merits. These applications and affidavit are appended as Annexure No. 3 to the writ petition. A perusal of these shows that the application filed under section 5 of the Limitation Act, Shadab Hasan has averred that there has been delay of 9 years 5 months and 10 days which is not deliberate and is liable to be condoned in the facts and circumstances of the case. From a perusal of application filed by Shadab Hasan Order IX, Rule 13 read with section 151, C.P.C. the circumstances for consideration of restoration of the suit are that he was not born when aforesaid Suit No. 22 of 1990 was filed that ex parte suit proceedings were not in his knowledge as such he could not contest the case and that now he is 19 years old and has come to know about the case on 29.7.2001 at about 4.00 p.m. through his sister Ruksana. He has also averred that no summons have been served upon him that he has never refused any summons sent by registered post by the Court, but postman in collusion with the landlord has made incorrect remarks in his favour and service shown upon him in fraudulent. It is lastly stated that publication in news papers of the notices in the aforesaid suit was not in proper compliance of the orders of the Court, having been published in local newspaper rather than national daily.;