DIPCHAND PYARELAL Vs. THAKKAR HASMUKHLAL KESHAVLAL

JUDGEMENT

(1.) This is a revision application by the tenant who was the defendant in the Civil Suit NO. 396 of 1971 of the court of the Civil Judge (J.D.) Baroda. In that suit for possession an ex parte decree had come to be passed on 13-11-71. The suit was filed for possession on the ground of non-payment of rent despite a notice of demand issued under sec. 15(2) of the Bombay Rent Act. The plaintiffs contention was that he was not duly served with the summons and came to know of the ex parte decree when the bailiff went to his premises with a warrant for possession issued in the execution application No. 167 of 1972 of that court. He therefore filed an application under Order 9 Rule 9 of the Civil Procedure Code on 19-4-72 and prated for setting aside the ex parte decree. The said application also came to be dismissed because he and his advocate - were absent on 9-12-74. On the following day namely on 10-12-74 another application was filed for restoration of that earlier application for setting aside the ex parte decree. The learned trial Judge dismissed the same on 8-12-75 on the ground that such an application did not lie under Order 9 Rule 9 of the Code. The original defendant therefore filed the Civil Appeal No. 3 of 1976 in the District Court of Baroda where the Extra Assistant Judge came to dismiss the same. The present revision application under sec. 29(2) of the Rent Act is directed against the order passed by the learned appellate Judge.

(2.) The learned appellate Judge concurred with the learned trial Judge in dismissal of the second application firstly on the ground that such an application did not lie. In the view of the learned Judge the only provisions of the Civil Procedure Code which extended an opportunity to such an applicant was sec. 151 of the Code but in his view no appeal lay against the order passed by the trial Judge under sec. 151 of the Code. The learned Judge further alternatively held that even if an appeal lay to him against the order purporting to have been passed by the learned trial Judge under sec. 151 of the Code the facts and circumstances of the case were such as would make him dismiss the appeal. It is this order of the learned appellate Judge that is seriously called in question by Mr. Majmudar for the petitioner.

(3.) The provisions of Order 9 Rule 9 of the Civil Procedure Code are quoted below :