ORDER
V. Gopala Gowda, J.
1. This revision petition is directed against the order dated 24-6-1999 passed by the Trial Court allowing the petition, filed under Order 9, Rule 13 of the CPC, setting aside the ex parte order of eviction dated 30-8-1997 in H.R.C. No. 501 of 1997 and directing restoration of possession of the premises to the respondent herein.
2. The petitioner is the landlady. She filed eviction petition against the respondent-tenant. The Trial Court passed ex parte order directing eviction. The landlady executed the same and took possession of the petition schedule premises. The tenant filed Miscellaneous Case No. 199 of 1998 praying to set aside the ex parte order of eviction. Since the same was allowed directing the landlady to restore possession of the schedule premises to the tenant, this revision petition is filed urging various grounds.
3. Heard the learned Counsels for the parties and perused the order under revision.
4. The contention of Mr. Kashinath Rao Patil, learned Counsel for the petitioner that the eviction petition itself was not maintainable as the respondent-landlord did not appear on account of mental inability and unsound mind, cannot be accepted. There is nothing on record to say that respondent is a person of unsound mind. Such a contention was neither raised in the Trial Court nor any evidence is adduced in that regard by the landlady. Therefore, it is not open for the learned Counsel to urge the contention for the first time before this Court. The contention is without any legal foundation. Hence, the same is rejected.
5. The next contention of the Counsel is that unless the Court appoints guardian under Order 32 of the CPC, the wife of the respondent should not have been allowed to examine as power of attorney holder on behalf of the tenant in the miscellaneous proceedings before the Trial Court. This contention also is devoid of merit. Question of Court appointing guardian to the respondent to prosecute his case did not arise at all as respondent is not a minor. The provisions of Order 32 of the CPC deals with appointment of guardian by the Court to minors and hence it has no application to the instant case. The contention urged in this regard is rejected as the same is devoid of merit.
6. The further contention urged is that the miscellaneous petition was not maintainable in view of Section 48 of the Karnataka Rent Control Act (repealed) as the order of eviction passed by the Trial Court was final order and therefore the tenant/respondent ought to have filed rent revision petition seeking for setting aside the order of eviction passed by the Trial Court against him. According to the learned Counsel, appeal or revision is maintainable and not miscellaneous petition against the order of eviction as held by this Court in D. Saraswathi v. The Rent and Accommodation Controller, West Range, Bangalore, : ILR1992KAR1706 . Placing reliance upon the decision in Mahijibhai Mohanhhai Barot v. Patel Manibhai Gokalbhai and Ors., : [1965]2SCR436 , it is contended that the order of restoration can be passed only in the proceedings under Order 21, Rule 96 of the CPC but not under Section 144 of the CPC. The contentions urged on behalf of the landlady are devoid of merit. The eviction order was passed without issuing notice to the tenant as provided under Rule 28 of the Karnataka Rent Control Rules of 1961 (now repealed) and the tenant was evicted on the basis of ex parte order. The Trial Court having found that the eviction order was made without notice to the tenant, the ex parte order of eviction was rightly set aside by the order under revision. Since the eviction order was passed ex parte, miscellaneous petition was rightly filed by the tenant under Order 9, Rule 13 of the CPC invoking his right under Rule 35 of the repealed Rules and the Court has lightly held that it was maintainable. Question of either filing appeal or revision, as the case may be as contended by the learned Counsel for the landlady, would arise if the eviction order is passed after contest. In the instant case the order of eviction passed was behind the back of the tenant without service of notice upon him as provided under law. Hence, the Court has rightly set aside the ex parte order of eviction and further ordered restoration of possession of the schedule premises to the tenant as provided under Section 144 of the CPC.
7. The order under revision is a well-considered order. Each aspect of the case is considered and its findings are recorded with valid and cogent reasons. The petitioner, instead of facing the trial, took all technical pleas against the tenant in this case. The order under revision does not warrant interference by this Court in exercise of its revisional jurisdiction.
8. For the aforesaid reasons, the revision petition is dismissed.