- (1.) Smt. Shanti Devi petitioner is a purchaser of the property in dispute from Rafikul Rehman landlord. Rafikul Rehman landlord obtained an ex parte ejectment order dated September 18, 1963 against Smt. Lilawanti, respondent. Lilawanti applied under Order 9 Rule 13 of the Code of Civil Procedure for staying the ex parte decree on April 30, 1973 on the ground that the personal service had not been effected on her and that the order of ejectment was secured secretly and that she had no knowledge of the same. In the written statement filed by Smt. Shanti Devi, she controverted the allegations and pleaded that the application was beyond limitation. On the pleas raised by the parties, following issues were framed - 1. Whether the application is within time ? 2. Whether there are sufficient grounds for setting aside the ex parte ejectment order dated 18.9.1963 ? 3. Relief. The learned trial Court after allowing the parties to lead their evidence decided both these issues against the respondent-tenant. Consequently, her application for setting aside the ex parte ejectment order was dismissed. In an appeal to District Judge, Hissar, the said order has been set aside on the ground that the learned trial Court decided this application in capacity of Sub Judge and not in the capacity of Rent Controller. It is this finding of the first appellate Court which is being assailed before me in this revision petition.
(2.) After hearing learned counsel for the parties I am of the opinion that this revision petition must be accepted. It is well established that under the provisions of East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act) no appeal lies against an order dismissing an application for setting aside the ex parte order of ejectment. Reference in this connection may be made to the latest decision of this court in Vasdev v. Ram Lila Sabha Karnal, 1975 77 PunLR 92. The learned counsel for the petitioner is, therefore, right when he contends that the first appellate Court had no jurisdiction to hear the appeal against the order passed under the provisions of the Act on an application for setting aside the ex parte order of ejectment. The plea that the Rent Controller decided this application as Sub Judge is without any basis, Nothing has been shown to me that the Rent Controller could take up the said application as a Sub Judge. It is clear from the order itself that it was present to the mind of the trial Court that he was deciding an application for setting aside an ex parte ejectment order passed under the Act. By a mere fact that while passing an order, the said Rent Controller described himself as Sub Judge 2nd class, Hissar by mistake, would not warrant a conclusion that he tried this application as a Sub Judge. In fact this appears to be a clerical mistake and no litigant is to suffer for the mistake of the Court. I am fortified in my view by two decisions of the Delhi High Court in Jaswant Ram v. B.D. Sharma,1968 70 PunLR 105 and Messrs Lachhman Dass Sain Ditta Mal v. Shri Hanuwant Das Sud,1968 70 PunLR 174. It is therefore, clear that by mere mistake of the Rent Controller describing himself as Sub Judge, 2nd Class it cannot be held that he tried this application as Sub Judge. It is only on this ground that the order of the Rent Controller was set aside.
(3.) For the reasons recorded above this revision petition is accepted. The order of the District Judge, Hissar is set aside and that of the trial Court is maintained. There will be no order as to costs.;