Surya Prakash Kesarwani, J. - (1.) Heard Sri H.N. Singh, leaned Senior Advocate, assisted by Sri Ishwar Kumar Upadhyay, learned counsel for the laintiffs-landlords/petitioners and Sri Manish Kumar Nigam, defendant-tenants/respondents.
(2.) Briefly stated facts of the present case are that the plaintiff-petitioner claiming himself to be the owner and landlord of the disputed house, issued a notice to the defendants-tenants/respondents on 30.10.2010 under Section 106 read with Section 111(2) of the Transfer of Property Act, 1882, sent by ordinary post as well as by registered post with AD whereby he determined the tenancy and demanded arrears of rent from January 2010 to September 2010 within 30 days. According to the plaintiffs-landlords/petitioners this notice was not complied with by the defendants-tenants/respondents. Therefore, the plaintiffs-landlords/petitioners filed O.S. No.278 of 2011 (Badri Narayan Vs.Tej Narayan & others) in the Court of Civil Judge (S.D.) Ballia, in which notices by ordinary process as well as by registered post were issued and subsequently publication was made in the daily news paper "Vikas Aaj" for substituted service. However, the defendants-tenants/respondents did not turn up. Therefore, the service of notices upon defendants-tenants/respondents was held to be sufficient. The suit was proceeded ex-parte and it was decreed by judgment dated 02.07.2015. Thereafter, the plaintiffs-landlords/petitioners filed an Execution Case No.12 of 2015 in which also notices were issued to the defendants-tenants/respondents. When the Exectuion Case was going on, the defendants-tenants/respondents filed an application dated 15.09.2017, under Order IX Rule 13 C.P.C. being Misc. Case No.36 of 2017 for recall of the ex-parte judgment and decree. The aforesaid application numbered as application No.3 Ga-2 was rejected by the Court of Additional Civil Judge (S.D.) Ballia, by order dated 26.07.2018. Aggrieved with this order, the defendants-tenants/respondents filed Misc. Appeal No.140 of 2018 (Hari Narayan and another Vs. Shri Pati Narayan & others) which was allowed by the impugned judgment dated 27.03.2019, passed by the 2nd Additional District Judge, Ballia. By the impupgned judgment the appellate court also allowed the application of the defendants-tenants/respondents under Order IX Rule 13 C.P.C. on a cost of Rs.3000/- and restored the O.S. No. 278 of 20011 to its original number. Aggrieved with this judgment the plaintiffs-landlord/petitioners have filed the present petition under Article 227 of the Constitution of India.
(3.) Learned counsel for the plaintiffs-landlords/petitioners submits that despite the fact that notice determining the tenancy as well as the summons issued by the court by ordinary process as well as by registered post were well served and thereafter publication for substituted service was made in the locally circulated news paper and the service was found to be sufficient by the court below and yet the appellate court has set aside the ex-party judgment. He submits that if this petition is disposed of with the observation that the O.S. No.278 of 2011, may be decided within a time bound period and the service of notice determining the tenancy is held to be sufficient then he has no objection.;