BIMALA DEVI Vs. DHARAM CHAND

JUDGEMENT

(1.) This petition has been brought under Article 227 of the Constitution of India challenging the order dated July 29, 1992, of the Rent Control Tribunal by which he dismissed the appeal filed by the petitioners against the older dated February 28, 1992, of the Additional Rent Controller rejecting the application of the petitioners moved under Order IX Rule 13 of the, Code of Civil Procedure for setting aside of the ex-parte eviction order dated February 1, 1991.

(2.) Facts of the case, in brief, are that the respondents- landlords had brought an eviction petition on the ground of bonafide requirement as contained in clause (e) of sub-section (1) of Section14 of the Delhi Rent Control Act against their tenant Sh.Kirori Mal Goel on August 27, 1987. On service being effected on Sh-Kirori Mal Goel, in accordance with the provisions of section 25-B Shri Goel filed an application seeking leave to defend which came to be allowed vide order dated September 29,1987. He filed the written statement and thereafter he had moved an application under Order VI Rule 17 of the Code of Civil Procedure seeking to plead some new facts regarding construction of one more room by the respondents on the second floor of the house in question. The whole of the ground floor excluding the store and godown stood let out to Sh-Kirori Mal Goel. The respondents admittedly are residing on the first floor of the property in question. The application seeking amendment of the written statement was allowed on November 17,1988. Sh.R.D.Mahant, Advocate, was appearing for Kirori Mal Goel in the said case. The amended written statement was to be filed on February 8,1989, on which date Shri Mahant informed the court that his client Shri Goel was missing and his whereabouts were not known and was not traceable by his family members. He sought one more adjournment for filing the written statement and the case was adjourned to March 15,1989, on which date no appearance was put in on behalf of the tenant and the tenant was proceeded ex-parte and the case was adjourned to September 27,1989, for recording ex-parte evidence and then to April 30,1990 and again to January 30,1991, for the same purpose. On January 30,1991, after evidence had been recorded and arguments had been heard and case was fixed for orders that an application was moved by the wife of the tenant and three minor children of the tenant Master Abhishek Goel, Miss Dolly Goel and Miss Silky Goel for setting aside of me ex-parte proceedings and that application was dismissed, inter alia, on the ground that as the case had been fixed for final orders, such an application was riot maintainable and even there was no locus standi to move such an application inasmuch as the tenant was not reported to have died and period of seven years had not lapsed since the date of missing of the tenant

(3.) The revision filed against the said order dismissing the application was also dismissed. The matter was taken to the Supreme Court by filing an SLP which also came to be dismissed on the short point that after the final arguments had been heard and the case stood adjourned for announcing the order, an application under Order IX Rule 7 of the Code of Civil Procedure was not maintainable. The Supreme Court, however, mentioned in the order that the appellant was at liberty to move an application under Order IX Rule 13 of the Code of Civil Procedure and thereafter an application was moved seeking setting aside of the ex-parte order which was passed on February 1,1991.