IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.64 of 2023 Decided on: 05.09.2025 ____________________________________________________ Sumeer Nath ……….. petitioner Versus Pran Nath Bahl ……….respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Mr. Suneet Goel, Sr. Advocate, with Mr. Vishwas Kaushal and Mr. Vivek Negi Advocates. For the respondent : Mr. Kartik Kumar and Ms. Drishti Sarswal, Advocates. ____________________________________________________ Bipin Chander Negi, Judge (oral) The present petition has been preferred against the impugned order dated 9.1.2023 passed by the Rent Controller, Court No.2, Shimla, whereby two applications one filed under Section 5 of the Limitation Act and another under Order 9 Rule 13 CPC have been allowed and the ex parte judgment dated 8.12.2017 had been set aside. 2. The petitioner in the case at hand is the landlord, who had filed a petition for eviction of the predecessor-in-interest of the present respondent. The Rent Petition bearing No. 33-2 of 2017/16 was decided ex parte on 8.12.2017. 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 3. The respondent in the case at hand in the application seeking condonation of delay in filing the application under Order 9 Rule 13 CPC averred that she became aware of the ex parte eviction order dated 8.12.2017, in June, 2018, when she was intimated by some neighbours that the process server was asking about the father of the respondent for effecting service in a matter pending before the executing Court. Immediately thereafter, it is averred that the respondent had contacted her counsel on 15.6.2018, who had informed her of the ex parte judgment. Copy whereof was immediately applied on 15.6.2018. The same was received on 19.6.2018. 4. Subsequent thereto, an application to proceed in the matter by the present respondent on behalf of her deceased father was got prepared. Other than the aforesaid, an application under Section 5 seeking condonation of delay in filing an application under Order 9 Rule 13 CPC was prepared, last but not the least, an application under Order 9 Rule 13 CPC was also prepared for getting the ex parte judgment dated 8.12.2017 set aside. 5. The aforesaid applications were filed before the Court on 19.7.2018. The application seeking permission to defend the case on behalf of her deceased father was allowed vide order dated 3.5.2019. The same is being reproduced here-in-below for a ready reference:- 3 “This order shall dispose of an application under Section 151 CPC filed by the applicant Vidhu Khanna for permission to defend the case on behalf of her father. The applicant is allowed to the limited extent qua the proceedings pending before the court i.e application for deposition of arrears of rent, execution petition, application under Section 5 of Limitation Act and application under Section 9 Rule 13 CPC. Since, in these application notices have already been issued at the instance of present applicant Vidhu Khanna, so leave is granted to the applicant to defend the said applications. Thus, application to the said extent is allowed for limited purpose. Application stands disposed off. Be registered and tagged with the main case file for records.” From a perusal of the same, it is evident that other than the three applications filed, an application for deposition of arrears of rent had also been moved as is evident from the aforesaid order. 6. The application filed for condonation of delay and for setting aside ex parte judgment dated 8.12.2017 were vehemently opposed by raising numerous objections. Post hearing the parties, the Court below was of the view that the application filed under Order 9 Rule 13 CPC was maintainable. Other than the aforesaid, the trial Court was of view that ex parte judgment dated 8.12.2017 in the case at hand had been passed against a dead person as the predecessor-in-interest of the present respondent i.e. her father (original tenant) had died on 29.11.2016 prior to the passing of the impugned ex pate eviction order dated 8.12.2017. Besides the aforesaid, the Court below 4 was of the view that the reason for non-appearance appeared to be genuine and that the delay in filing the application under Order 9 Rule 13 CPC had been sufficiently explained. 7. Heard counsel for the parties. Perused the impugned judgment and the record. 8. From a perusal of the record, it is evident that notices were issued to the predecessor-in-interest of the present respondent (original tenant) on 22.3.2016. Notices had been issued for 22.4.2016. A perusal of the notice reflects that the Bailiff had gone to the address whereupon service was to be effected on the original tenant on 20.4.2016. On searching for the original tenant (Sh. Pran Nath Bahl), the Bailiff could not find the said individual at the residence whereupon service had to be effected. On inquiry from the neighbours, the Bailiff was informed that the noticee (original tenant) is presently not here. 9. In the aforesaid facts and attending circumstances, as per service report of the Bailiff, a copy of the summon and the petition were affixed on the door of the noticee (original tenant). This was done in front of the neighbours. The neighbours refused to divulge their names and refused to sign an endorsement to this effect on the reverse side of the summon. Based on the aforesaid report, when none had been appeared on behalf of the original tenant before the Court on 22.4.2016, hence, the original tenant had been proceeded against ex parte. 5 10. The Rent Controller, Court No-II, Shimla, while passing the impugned order was of the view that since the original tenant i.e. late Sh. Pran Nath Bahl had died on 29.11.2016, hence the judgment in the case at hand was passed against a dead individual and, therefore a nullity. The Rent Controller unfortunately overlooked order 22 Rule 4 sub Rule 4 CPC, the same reads as follows:- “Order XXII DEATH, MARRIAGE AND INSOLVENCY OF PARTIES 4. Procedure in case of death of one of several defendants or of sole defendant. The Court whenever it thinks fit, may exempt the plaintiff from the necessity of of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing, and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.” 11. In the case at hand, the original tenant had not filed a written statement and had not contested the suit. In the aforesaid circumstance, in terms of Order 22 Rule 4 sub Rule 4, the present petitioner/landlord could have been exempted from substituting the legal representatives of the original tenant in the case at hand. 12. In an application preferred under Order 9 Rule 13 CPC, all that the Court has to examine is as to whether the 6 original tenant in the case at hand had been duly served. From a perusal of the report of the bailiff, details whereof have been narrated herein supra, it is evident that the original tenant in the case at hand had been duly served. Hence, no fault can be found on this account. In this respect, the Rent Controller, Court No-II, Shimla in his impugned judgment dated 9.1.2023 has completely glossed over this vital aspect of the matter. 13. Besides the aforesaid, one vital aspect which has been missed by the Rent Controller, Court No-II is that the application for setting aside the ex parte judgment dated 8.12.2017 in the case at hand had to be filed within thirty days of the date of knowledge of the same. In this respect, when one examines the application under Order 9 Rule 13 CPC specifically para 2 thereof, it is evident that as per averments made by the applicant, she became aware of the judgment and decree in the month of June, 2018, when some unnamed neighbor of the respondent informed her about the process server from the Court asking about the address of her deceased father with respect to a pending matter. 14. In the application filed under Section 5, it is averred that the counsel was contacted by the respondent on 15.6.2018 and that he applied for the copy of the impugned judgment on 15.6.2018. Hence, from the same, it is evident that on 15.6.2018, the respondent had become aware of an eviction order having 7 been passed. The copy whereof was received on 19.6.2018. Hence in the case at hand, application under Order 9 Rule 13 CPC should have been filed latest by 15th July, 2018. In the case at hand, the same has been preferred on 19.7.2018 admittedly after 30 days of date of knowledge i.e. from 15.6.2018. 15. The eviction in the case at hand had been ordered on the ground of arrears. Hence, arrears were to be deposited within 30 days from 15.6.2018 (date of knowledge). The same should have first been offered to the landlord/petitioner in case of refusal on the part of the landlord/petitioner to receive the arrears, the amount should have been deposited in the Court. Intimation whereof was to be provided to the landlord/petitioner within 30 days. The draft in the case at hand is dated 13.7.2018, however, there is nothing on record wherefrom, it is evident that insofar as the deposit in the Court is concerned any intimation qua the same had been given to the landlord/petitioner within 30 days. In terms of law laid down in Hans Raj Khimta vs. Smt. Kanwaljeet Kaur alias Sardarni Babli Latest HLJ 2016 (HP) 3030 to constitute a valid tender, rent has to be paid directly to the landlord/respondents and not deposited in the Court. Even if deposited in the Court, intimation qua the deposit has to be given to the landlord/respondents within 30 days from the date of passing of the order. Not following the aforesaid course means that the deposit of arrears in Court is not a valid tender in terms of the Rent Act. 8 Hence, on this Account alone, the ex parte eviction passed by the Rent Controller should have been upheld. 16. For the aforesaid reasons, impugned judgment dated 9.1.2023 is quashed and set aside. Ex parte judgment dated 8.12.2017 is upheld. Petition stands disposed of in the aforesaid terms. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 05th September,2025 tarun