R K SHARMA Vs. PRAVEEN GUPTA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against the order dated 27.5.1996 passed by the learned Additional Rent Controller whereby eviction case No.127/91 has been restored to file setting aside the ex-parte decree under Section 14(1)(a) of the Delhi Rent Control Act (hereinafter referred to as the Act) and the respondent No.2 directed to file his written statement to the eviction petition.

(2.) A preliminary objection to the maintainability of this petition under Article 227 C.M.(M) 90/97 of the Constitution has been raised by Mr.Sahai, learned senior counsel for respondents contending that the remedy for the present petitioner would be to file an appeal under Section 38(1) of the Act since the impugned order dated 27.5.1996, whereby the ex-parte decree in eviction case No.127/91 has been set aside is not a procedural order but by the said order, the rights and liability of the parties are decided by the learned A.R.C.

(3.) As against this, it is submitted by Mr.Vats, learned counsel for the petitioner that appeal under Section 38 of the Act does not lie against the impugned order since the impugned order is a procedural order and the same is under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Cod) whereby an ex-parte decree in eviction case No.127/91 has been set aside; that under Order 43 Rule 1(d) of the Code, an appeal would lie from an order under Rule 13 of Order 9 rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex-parte; that since no appeal is provided against the order granting an application for setting aside a decree passed ex-parte under Order 43 Rule 1 of the Code, the only remedy would be by way of a petition under Article 227 of the Constitution.