DAYAL CHAND Vs. SHAM MOHAN

JUDGEMENT

(1.) When must a court decide a case on merits and when must it not do so ? The difference between the two requires to be clearly explained by analysing the relevant provisions of Order IX and Order XVII of the Civil Procedure Code in this case.

(2.) The respondent landlord filed a petition for eviction of the appellant-tenant under proviso (a) to section 14(1) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) on the ground that the tenant had been in arrears of rent and had failed to pay the same after a notice of demand had been sent to him. The tenant had previously also defaulted in payment of rent but the previous proceedings brought by the landlord against him for eviction did not result in his eviction because the tenant paid up the previous arrears of rent to the landlord getting the benefit of sub section (2) of Section 14 of the Act but the proviso to sub section (2) of Section 14 of the Act barred the tenant from claiming the same benefit in the second eviction proceedings lodged against the tenant for a second default in payment of rent. The tenant had therefore no apparent defence to the eviction proceedings brought against him by the landlord. After the evidence of the parties was recorded, the case was fixed for arguments before the Controller on 10th February, 1966. On that date the tenant was present but stated that his counsel was ill and he could not argue the case himself. The case was therefore adjourned to 22-2-1966. On the adjourned date neither the tenant nor his counsel was present in the court. The Controller thereupon passed an order on the merits of the case for the eviction of the tenant from the premises. As the case had been disposed of on merits the normal remedy of the tenant was to file an appeal against it under Section 38 of the Act to the Rent Control Tribunal. Instead, the tenant made an application under Order IX Rule 13 Civil Procedure Code (hereinafter called the Code) for the setting aside of the ex-parte, order of eviction passed against him. The application was dismissed by the Controller as incompetent. He held that order of eviction was passed under Order XVII Rule 3 of the Code on merits and it was not an ex-parte order passed against the tenant under Order XVII Rule 2 of the Code. The remedy of an application under Order IX Rule 13 of the Code was available only when an ex-parte order was passed under Order IX Rule 6 of under O.XVII s.2 of the Code. The appeal of the tenant to the Rent Control Tribunal against the dismissal of his application made under Order IX Rule 13 of the Code was also dismissed by the Tribunal for the same reasons. In this second appeal by the tenant it is alleged that the Controller had no jurisdiction to pass an order of eviction on the merits of the case against the tenant under Order 17 Rule 3 of the Code. It is urged that the crucial distinction between rule 2 and rule 3 of Order XVII is that an order under rule 2 is passed when the particles or any of them fail to appear in the court while an order under rule 3 is passed when both the parties are present but one of them fails to produce evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit. It is alleged that the tenant and his counsel being absent on the date of the adjourned hearing the Controller acted illegally in proceeding under rule 3 of Order XVII of the Code. He ought to have proceeded under rule 2 and could have passed an ex-parte order of eviction or such other order as he thought fit against the tenant.

(3.) In defence the landlord has raised a preliminary objection to the effect that the order dismissing the application of the tenant made under Order IX Rule 13 of the Code was not an order under the Act within the meaning of section 38 of the Act and therefore no appeal lay against the said order. For the same reason no second appeal lay against the order of the Tribunal under Section 39 of the Act. The criterion laid down by the Supreme Court in The Central Bank of India v. Gokal Chand (1967)DLT 1(1) as to what is an order under the Act is that the order must affect the rights and liabilities of the parties. If it does so, even an inter-locutory order would be an order under the Act. The order dismissinng an application under Order IX Rule 13 of the Code affects the rights of the tenant as it deprives him of all opportunity to be heard by the Controller before an order on merits is passed against him. Secondly, such an order is final and terminates the proceedings. Lastly, it has grave legal consequences for the tenant. I have no hesitation therefore in holding that it was an order under the Act and an appeal could be filed against it under Section 38 of the Code. The second appeal under Section 39 is also competent inasmuch as a substantial question of law is involved.