JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. This petition under Article 227 of the Constitution of India is directed against the order dated 3.8.2015 passed by the learned Civil Judge (Junior Division), Court No. 3, Shimla whereby it refused to set-aside the ex-parte order against the petitioner. 2. The respondent herein filed eviction petition before the learned Rent Controller on various grounds. On 2.7.2011, notice of this petition was ordered to be issued for the service of the petitioner who was duly served for the next date fixed on 27.8.2011. But, since the report of service was in Urdu, therefore, the Court ordered the case to be listed on 7.9.2011 and directed the respondent to produce some interpreter knowing Urdu language, so that the report on the summons could be understood. On 7.9.2011, the statement of one Sh. R.N. Karol was recorded, who stated that he was conversant with the Urdu language and the report on the summons revealed that the summons had been duly acknowledged by the respondent/petitioner herein and, therefore, he was proceeded ex-parte and case was ordered to be listed for ex-parte evidence on 3.11.2011. However, on 3.11.2011, the petitioner moved an application for setting aside the ex-parte order and permission to join the proceedings as also to file reply to the eviction petition. This application was contested by the respondent and the Rent Controller on 21.6.2012 proceeded to frame the following issues:- 1. Whether there are sufficient ground to set-aside order dated 27.8.2011 to 7.9.2011, vide which applicant was ordered to be proceeded against ex-parte, as prayed? OPP 2. Whether the present application is neither competent nor maintainable, as alleged? OPD 3. Whether the application is mala-fide, as alleged? OPD 4. Relief. 3. The parties led evidence and ultimately after a period of nearly four years, the learned Rent Controller, eventually dismissed the petition by concluding that the defence set up by the petitioner in his application as also the evidence led in support thereof was false and lacked bona fides. I have heard learned counsel for the parties and have gone through the records of the case carefully. 4. Adverting to the facts of the case, it would be seen that the petitioner though was duly served on 4.8.2011, whereas the date fixed for his service was fixed as 27.8.2011 when he admittedly did not appear. I have heard learned counsel for the parties and have gone through the records of the case carefully. 4. Adverting to the facts of the case, it would be seen that the petitioner though was duly served on 4.8.2011, whereas the date fixed for his service was fixed as 27.8.2011 when he admittedly did not appear. The reason assigned in the application under Order 9 Rule 7 CPC for non-appearance was that the petitioner was aged about 75 years and had gone to his native place in Jammu & Kashmir. Though, the petitioner was served with a notice but the same was delivered to him so late that it was impossible for him to appear in the case on 27.8.2011. On account of late service of summon, he remained under bona-fide belief that he will be sent fresh summons in the case. However, he did not receive any fresh summons, he made enquiries through his counsel and it was revealed that he was proceeded ex-parte in the case on 27.8.2011. It was further averred that though he received the summons issued by the Court, but then the name of his father as reflected in the summons was Habeeb Ullah instead of Gulam Rasool Paddar. It was also averred that on account of old age and weak health the petitioner could not attend the case and there was no negligence or intentional lapses on the part of the petitioner for his non-appearance before the Court on 27.8.2011. 5. In response to the application, the respondent had averred that the application was mala-fide and had been filed with an intention of delaying the proceedings. The petitioner had been duly served for 27.8.2011 and he intentionally and deliberately failed to put in appearance before the Court and, therefore, the ex-parte proceedings were rightly drawn against him. 6. The learned Court below has rejected the application on the ground that the explanation offered by the petitioner was false. It has been observed in paras 6 and 7 of the order as under:- “6. 6. The learned Court below has rejected the application on the ground that the explanation offered by the petitioner was false. It has been observed in paras 6 and 7 of the order as under:- “6. The falsity of the aforesaid claim of the applicant is evident from his cross-examination wherein he has admitted that he cannot read and write English language and he cannot explain the contents of his affidavit Ext.AW1/A and he has stated that his address is wrongly mentioned in the aforesaid affidavit whereas he is resident of District Kulgam in Kashmir and the summons were also received by him in Kashmir Ex.RX the summon which was served upon him and on the back side of the said summons, the report has been made by the process server in Urdu language, the translation of which has been proved as Ext.PX. It is clear from the said report that the summon was served upon the present applicant on 4.8.2011 whereas AW-1, has stated that he received the summons about four-five days prior to the date of hearing which goes against the report made by the process server on the summons and thereby falsifies the claim of the applicant to that extent. Even, the applicant EW one has admitted in his cross-examination that his address is mentioned correctly in summons Ext. RX and when he has himself admitted that the said summons were received by him much prior to the date of hearing, it was open for him to have appeared in the court or at least instruct his counsel to appear on his behalf. But, the applicant failed to do so whereas during cross-examination he has stated that he came to Shimla after receiving the summons and disclosed the aforesaid fact to his counsel and that being so, how come none appeared on behalf of the applicant on the date of hearing is not explained satisfactorily. 7. Another important aspect on which the emphasis has been laid by the applicant remains that he could not put in appearance in the court on the date of hearing due to his illness as he was operated. However, apart from the self serving statement of AW1 Abdul Rashid, there is nothing on record to believe that he was operated during the period when he received summons in the present case. However, apart from the self serving statement of AW1 Abdul Rashid, there is nothing on record to believe that he was operated during the period when he received summons in the present case. There is nothing in the report on the back side of summons Ext.RX, the translation of which is Ext. PX that the applicant was in the hospital when he received summons whereas, the applicant has laid stress on the said fact alleging that he was in the hospital when he received summons. He has stated during cross-examination that he was operated in Srinagar Hadwin Hospital but no witness from the said hospital has been examined to substantiate the version. On one hand, the applicant states that he was in his native village when he received summons but during other course of his cross-examination, he has stated that he was in the hospital when he received summons and if his version is believed that he was in hospital, that means, he was in Srinagar whereas he was allegedly operated. But, that is not the case either pleaded by the applicant explaining his non appearance or that have come to the fore by way of his examination. The manner in which the applicant has deposed shows his lack of bona fides because during another course of his cross-examination he has stated that he was unconscious when he received the summons and in the next breath he has stated that the process server had come to his house where he had received the summons and in these circumstances, when the applicant himself has changed his version time and again, it will not be in the fitness of things to believe his testimony. There is nothing on record nor it has come in the cross examination of RW1 to show that he had wrongly and intentionally mentioned the wrong parentage of the present applicant/respondent in the array of parties in the petition and even if it is believed that the respondent is not son of Shri Habibulla, then also, he was not prejudiced due to the same because he had clarity at the time of receipt of summons that the petition has been filed against him with respect to tenanted premises by the landlord and there was sufficient opportunity for him to have put in appearance in the Court and to contest the same but simply on the ground that his father’s name has been mentioned as Shri Habibulla in the summons Ext. RX, the same is not sufficient to explain his non appearance in the court on the crucial date of hearing whereas, his version as discussed hereinabove clearly shows that the bona-fides are not in his favour. Moreso, the record reveals that the applicant was proceeded against ex-parte on 7.9.2011 and he has come forward to seek setting aside of order dated 27th of August, 2011. Further, the petitioner has sought the eviction of the respondent from the demised premises on the ground that he had sublet the tenanted premises to someone else and is not residing therein and has shifted to his native place at Kashmir and during cross examination, AW1 has stated that he is running a school in his native village for the last 20 years due to which the possibility cannot be ruled out that the respondent is living in Kashmir, which is yet another circumstance against the applicant. The knowledge of the dates of hearing can be attributed to the applicant as he has admitted that he had received summons on 4.8.2011 and no sufficient cause have been reflected in the present application to show as to why application was not moved within the period of limitation thereafter for setting aside ex-parte order which also goes against the relief set up by the applicant. Hence, applicant has not been able to put forth sufficient cause to show his non appearance on the date of hearing, as such, there are no sufficient grounds to set aside orders dated 27.8.2011 and 7.9.2011 as claimed. Hence, the issue in hand is decided against the applicant.” 7. Hence, applicant has not been able to put forth sufficient cause to show his non appearance on the date of hearing, as such, there are no sufficient grounds to set aside orders dated 27.8.2011 and 7.9.2011 as claimed. Hence, the issue in hand is decided against the applicant.” 7. This Court in Neelam Kumari vs. Yogender Singh and Others, 2015 (3) Him. L.R. 1895, while discouraging the practice of the Courts in adopting a hyper technical approach observed as under:- “7. The proposition that Rules of Procedure are handmaid of justice and cannot take away the residuary power in Judges to act ex debito justitiae, where otherwise it would be wholly inequitable, is by now well founded. 8. It must be remembered that the Courts are respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so and further taking into consideration the fact that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done. 9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. 10. The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. 11. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. 12. It is useful to quote the oft-quoted passage of Lord Penzance in 1879 (4) AC 504: “Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. 12. It is useful to quote the oft-quoted passage of Lord Penzance in 1879 (4) AC 504: “Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. It strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to sub-serve.” 13. In the matter of Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425 , the Hon’ble Apex Court has observed as under: “Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends, not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provide always that justice is done to both sides) less the very means designed for the furtherance of justice be used to frustrate it.” “Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course there must be expectations and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso our laws of procedure should be construed, wherever that is reasonably possible in the light of that principle.” 14. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. Blyth vs. Blyth, 1966 (1) All E.R. 524 (HL). 15. Blyth vs. Blyth, 1966 (1) All E.R. 524 (HL). 15. In Balwant Singh Bhagwan Singh and Another vs. Firm Raj Singh Baldev Kishen, AIR 1969 Punjab and Haryana 197 it was held that:- “Promptitude and despatch in the dispensation of justice is a desirable thing but not at the cost of justice. All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner, which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. It is immaterial if the original omission to give evidence or to deposit process fee arises from negligence or carelessness.” 16. In the matter of State of Gujarat vs. Ramprakash P. Puri, 1970 (2) SCR 875 , the Hon’ble Apex Court has held that:- “Procedure has been described to be a hand-maid and not a mistress of law, intended to sub-serve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause.” 17. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable - Justice is the goal of jurisprudence processual, as much as substantive. Sushil Kumar Sen vs. State of Bihar, (1975) 1 SCC 774 . 18. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. Shreenath and Another vs. Rajesh and Others, AIR 1998 SC 1827 . 19. The Hon’ble Supreme Court in R.N. Jadi and Brothers vs. Subhash Chandra, (2007) 9 SCALE 202, considered the procedural law vis-a-vis substantive law and observed as under:- “9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.” 20. Procedure is only handmaid of Justice – All the rules of procedure are the handmaids of justice. Any interpretation which eludes substantive justice is not to be followed. Observing that procedure law is not to be a tyrant, but a servant, in Sambhaji and Others vs. Gangabai and Others, (2008) 17 SCC 117 , the Hon’ble Supreme Court held as under:- “6. (14) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescription is the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.” 21. In Rajendra Prasad Gupta vs. Prakash Chandra Mishra and Others, 2011 (1) SCALE 469 the issue before the Hon’ble Supreme Court was as to whether an application will be maintainable before the trial Court to withdraw the application filed earlier for withdrawal of the suit. The trial Court dismissed the application as not maintainable. The High Court held that once the application for withdrawal of the suit is filed the suit stands dismissed as withdrawn even without there being any order on the withdrawal application and as such another application at a later point of time to withdraw the suit was not maintainable. When the matter was taken up in appeal, the Hon’ble Supreme Court disagreed with the views expressed by the High Court. While allowing the appeal, the Hon’ble Supreme Court observed thus:- “5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited and not that every procedure is prohibited unless expressly permitted.” 22. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited and not that every procedure is prohibited unless expressly permitted.” 22. The Hon’ble Supreme Court in Mahadev Govind Gharge and Others vs. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, 2011 (6) SCALE 1 reiterated the legal position regarding procedural law and observed:- “28. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold.” 8. Rule 7 of Order 9 reads as follows:- “R.7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance – Where the court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.” 9. The term good cause for the purpose of Order 9 Rule 7 has to be construed as an elastic expression for which no hard and fast rule can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. In a case where the defendant approaches the Court immediately, the discretion is normally exercised in his favour. As against the expression sufficient cause in Order 9 Rule 13, the expression used in Order 9 Rule 7 is good cause. However, there is no material difference between the facts to be established for satisfying the two tests of good cause and sufficient cause. There cannot be a good cause which is not sufficient as affording an explanation for non-appearance nor conversely a sufficient cause which is not a good one and further either of these is not different from good and sufficient cause which is used in this context in other statutes. There cannot be a good cause which is not sufficient as affording an explanation for non-appearance nor conversely a sufficient cause which is not a good one and further either of these is not different from good and sufficient cause which is used in this context in other statutes. If on the other hand, there is any difference between the two, it can only be that the requirement of a good cause is complied with on a lesser degree of proof than that of sufficient cause assuming the applicability of the principle of resjudicata to the decisions in the two proceedings, if the Court finds in the proceeding under Order 9 Rule 7, the lighter burden if not discharged, it must fortiori bar the consideration of the same matter in the later proceeding under Order 9 Rule 13 where the standard of proof of that matter is anything higher. 10. The term good cause has to understand in its proper spirit and philosophy and purpose regard being had to the fact that the term is basically elastic and is to be applied in a proper perspective to the fact obtaining situation. 11. A liberal and pragmatic justice oriented and non-pedantic approach has to be adopted while considering the reasons offered to explain the good cause. Undoubtedly, a litigant cannot be permitted to ask the Court at his personal negligence and unsettle the litigation and in case he is grossly negligent or reasons offered are stereo type, vague or lack bona fides, the same may be taken to be a circumstance going against the litigant while adjudging good cause. But if then a liberal concession has to be adopted to advance substantial justice while deciding whether there is a good cause or not, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the Court from doing so. 12. As observed earlier, the main ground which weighed the learned Rent Controller to reject the application of the petitioner under Order 9 Rule 7 is that there was a falsity in the claim set up by the petitioner, but then it must be remembered that in every case of delay there would be some lapses on the part of litigant concerned. That alone is not enough to turn down his plea and shut the door against him if the explanation does not smack of mala-fides or it is put forth as part of a dilatory strategy. The Court must show utmost consideration to the suitor and it is normally when there is a reasonable govern to think that the party was deliberately trying to gain time then the Court should lean against the acceptance of the explanation. 13. The petitioner admittedly is 73 years old and is a resident of Jammu and Kashmir, no motive to delay the proceedings could be attributed to the petitioner since admittedly he had moved the application on the first date fixed for recording of the ex-parte evidence. It must be re-capitulated that it was on 7.9.2011 that the petitioner was proceeded ex-parte and the case was then fixed for recording ex-parte evidence on 3.11.2011 on which date the petitioner admittedly moved an application for setting aside the ex-parte order and sought permission to join the proceedings and file reply to the eviction petition. 14. This Court has no hesitation to observe that it was not because of the petitioner alone but on account of the procedural delay that it took the learned trial Court four years to decide the application moved by the petitioner under Order 9 Rule 7 CPC and in case the proceedings would have been permitted to continue, then the same by now would have culminated in a decision on merit. If it was the intention of the petitioner to delay the proceedings, then I see no reason why he would have moved an application immediately before the ex-parte evidence of the petitioner could have commenced. He could have conveniently waited to join the proceedings at any later stage rather than approach the Court well before the trial of the case had commenced. The approach of the learned Court below to say the least is absolutely conservative, non-pragmatic and pedantic. 15. However, to be fair to the petitioner, he has placed reliance on the judgment rendered by this Court in Ajay Aggarwal vs. Narinder Kumar and Others, Latest HLJ 2014 (HP) 742 to contend that in similar circumstances this Court had rejected the application for setting aside the ex-parte order and strong reliance is placed on paras 11 and 12 of the judgment, which read thus:- 11. The address mentioned in registered letter sent to respondent No. 2 was correct. Publication has also been ordered on the same address. Version of respondent No. 2 that he did not read newspaper can not be believed. Respondent No. 2 was proceeded ex-parte on 2.12.2008. Application has been filed under Order 9 Rule 7 CPC after more than four years of the passing of order dated 2.12.2008. 12. It is held that respondent No. 2 was duly served. He has rightly been ordered to be proceeded ex-parte on 2.12.2008. Respondent No. 2 has not shown any good cause for setting aside order dated 2.12.2008. Respondent No. 2 has not filed a separate application under Section 5 of the Limitation Act alongwith application under Order 9 Rule 7 of Civil Procedure Code, for setting aside order dated 2.12.2008. Only averment made in the application is that application was within limitation from the date of knowledge. According to the petitioner, application was barred by limitation. 16. It would be evident from the perusal of the paragraphs quoted above, that there were two main circumstances which pre-dominantly weighed with the Court in dismissing the application. Firstly, that there was no good cause shown in the application and secondly, in absence of a separate application under Section 5 of the Limitation Act, the application under Order 9 Rule 7 CPC was itself not maintainable. These are not the facts obtaining in the instant case. 17. As already noticed above, the case for the first time came up before the learned Rent Controller on 2.7.2011 on which date the notices were ordered to be issued to the petitioner herein for 27.8.2011 for which date though he was served but did not put in appearance and was proceeded ex-parte on 7.9.2011. On 7.9.2011 the case was ordered to be listed for ex-parte evidence on behalf of the respondent on 3.11.2011. However, before the respondent's evidence could commence, the petitioner admittedly appeared before the learned Rent Controller on 3.11.2011 and moved the application for setting aside the ex-parte order. There was no undue or deliberate delay on the part of the respondent and therefore no prejudice can be said to have been caused to him by permitting the petitioner to join the proceedings. 18. There was no undue or deliberate delay on the part of the respondent and therefore no prejudice can be said to have been caused to him by permitting the petitioner to join the proceedings. 18. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed and the impugned order dated 3.8.2015 passed by the learned Court below is quashed and set-aside. 19. The Court cannot be oblivious to the fact that the respondent has been made to contest this application as also the consequential proceedings over a period of four years and, therefore, deserves to be compensated for the same. Accordingly, the petition though has been allowed the same shall however be subject to the petitioner paying an amount of Rs. 25,000/- as costs which shall be paid by the petitioner to the respondent on or before the next date of hearing, failing which the order dated 3.8.2015 passed by the Court below shall automatically revive. The parties through their counsel are directed to appear before the learned Rent Controller (3), Shimla on the date already fixed on 1.1.2016. 20. Since the proceedings have been unduly delayed for a period of more than four years from the date of its institution, it is expected that the learned Court below shall decided the same as expeditiously as possible and in no event later than 31.12.2016. 21. Before parting, I may observe that the jurisdiction exercised by the learned Presiding Judge in this case was in the capacity of Rent Controller and not as a Civil Judge, but despite this, the various orders passed in this case reflect that the same have been shown to be passed not in the capacity of Rent Controller but as Civil Judge. It goes without saying that it is the same Presiding Judge who is vested with jurisdictions under various different Acts. For example, under the Employees Workmen's Compensation Act, the Presiding Judge is designated as Commissioner, in civil matters as Civil Judge, in criminal matters as Judicial Magistrate and in matters arising out of rent litigation referred to as the Rent Controller. It is not the designation alone, but even the jurisdiction exercised by him which is distinct and separate under the different statutes and, therefore, these jurisdictions and designations cannot be intermingled. This practice not only deserves to be deprecated but must be discontinued forthwith. It is not the designation alone, but even the jurisdiction exercised by him which is distinct and separate under the different statutes and, therefore, these jurisdictions and designations cannot be intermingled. This practice not only deserves to be deprecated but must be discontinued forthwith. Therefore, the Registrar (Judicial) of this Court is directed to issue necessary instructions to all the subordinate Courts, Tribunals, Rent Controllers etc. in this regard. The petition is disposed of in the aforesaid terms, so also the pending applications if any. Interim order dated 1.10.2015 passed by this Court is vacated.