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CASE NO.: Appeal (civil)  2997 of 2005

PETITIONER: Narender

RESPONDENT: Pradeep Kumar

DATE OF JUDGMENT: 03/05/2005

BENCH: P. VENKATARAMA REDDI & A.K. MATHUR

JUDGMENT: J U D G M E N T  

(Arising out of S.L.P.(C.)No.21968 of  2004)

A.K. MATHUR, J.

       Leave granted.

       This appeal is directed against an order passed by learned  Single Judge of the High Court of Delhi at New Delhi  in Civil  Miscellaneous Main No.328 of 2003 on July 23, 2004 whereby  the order dated April 24, 2003 passed by the Rent Control  Tribunal which dismissed the appeal of the respondent herein  arising out of the order of the Additional Rent Controller, Delhi   who decreed the eviction of the respondent under Section  14(1)(h) of the Delhi Rent Control Act  1958( hereinafter to be  referred to as "the Act") was set aside and the case was  remitted back to the trial Court.  Aggrieved against this order,  the present petition by way of special leave petition was filed.  It  may be relevant to mention here that the plaintiff filed a suit for  eviction of the respondent from the premises under his tenancy  in the House No. 11/8, Sarvapriya Vihar, New Delhi under Section  14(1)(h)  of the Act. The premises in question  having one drawing  room, one bed-room, kitchen, bath room and one W.C. situated on  the second floor was let out to the respondent  on a monthly rent  of Rs.2200/- by the appellant.  No rent agreement was executed.  The respondent was residing  in the said premises along with his  family since the inception of the tenancy. It was alleged that the  wife of the  respondent purchased a flat bearing No.A-35/D  situated in D.D.A. Flats Complex at Munirka, New Delhi by an  agreement of sale on March 15, 1995 under a general power of  attorney of the same date and  got the said flat converted in to  freehold property  and a conveyance deed dated September 5,  2000  was registered before the Sub-Registrar on September 6,  2000 vide document No.12663, Additional Book No.1, Volume  No.343 at pages 156-157 in the name of the wife of the  respondent.  It is also alleged that the wife of the respondent  was a house-wife and  she had no independent source of income.  It was also alleged that the respondent has acquired this  D.D.A.  flat through his wife. Under these circumstances, the appellant  prayed that the respondent- defendant be evicted from the  premises in question.  

               Summonses were issued and the same were served on  the respondent i.e. through process server and through  registered post with aknowledgment due. But none appeared for  the respondent before the Additional Rent Controller and

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therefore, the suit was decreed ex parte. The appellant examined  number of witnesses and exhibited certain documents. Learned  Additional Rent Controller after review of the evidence on the  record accepted the evidence as none has appeared to rebut the  same and granted a decree for eviction on being satisfied that all  the ingredients of Section  14(1)(h) of the Act stood established  by Order dated 21st November, 2002.  Thereafter, an application  was filed  by the respondent under Order IX Rule 13 read with  Section 151 of the Code of Civil Procedure for setting aside  the  ex parte decree dated  November 21,  2002. This application was  dismissed by the Additional Rent Controller by its order dated  March 5, 2003.  This order  rejecting the application filed under  Order IX Rule 13 of the Code of Civil Procedure  for setting  aside the ex parte decree was not challenged  and it attained  finality. However, the respondent thereafter filed an appeal  being R.C.A. No.179 of 2003 before the Additional Rent Control  Tribunal, Delhi against Order and Decree passed by the  Additional Rent  Controller on 21st November, 2002.  Though the  appeal was barred by time  yet the delay in filing the appeal was  condoned.  Learned Tribunal  after considering the facts and law  on the subject dismissed the appeal by its order dated April 24,  2003.  It was held by the Tribunal that  the wife of the  respondent has already acquired an alternative residential  accommodation  bearing No.A-35/D, D.D.A. Flat, Munirka, New  Delhi and has further observed that the decree was granted ex  parte and that ex parte order has not been set aside. Therefore,  learned Tribunal did not feel persuaded to interfere in the appeal  and consequently the same was dismissed. Aggrieved against this  order passed by the Tribunal on April 24, 2003, a writ petition  under Article 227 of the Constitution was filed by the  respondent before the High Court of Delhi. Learned Single Judge  of the High Court after considering the matter observed that  without going into the intricacies of the material produced and  without going into the legality of the ex parte order not being  challenged, learned Single Judge felt persuaded that an  opportunity of hearing should be given to the writ petitioner- the  respondent herein and as such set aside the order and granted  leave to defend the suit. Aggrieved against this order passed by  the learned Single Judge of the High Court of Delhi on July 23,  2004, the present Special Leave Petition was filed.

       We have heard learned counsel for the parties and have also  gone through the order of the learned Single Judge of the High  Court.  The first and foremost point is when the summonses were  served on the respondent and he did not appear, he has to thank  himself for serious lapse on his part. Both learned Additional   Rent Controller as well as the learned Rent Control Tribunal have  found that the summonses were served by registered post with  acknowledgment due as well as through the process of the Court.  Despite that the respondent has  chosen not to put in appearance.  Therefore, there was no option left on the part of the Additional  Rent Controller  to proceed against  the respondent.  It examined  the ex parte order on merit and  held  that the plaintiff has  successfully proved his case under Section 14(1) (h) of the Act.  It was also held that an application for setting aside  the ex  parte decree was filed, but that application was dismissed on  March 5, 2003.  The respondent did not take up this matter  before the higher forum and felt satisfied with the order dated  March 5, 2003 dismissing his application for setting aside the ex  parte  order under Order IX Rule 13 of the Code of Civil  Procedure. Therefore,  the ex parte decree  passed by the  learned Additional Rent Controller  became final.  Against this  order of the Tribunal,  a writ petition  under Article 227 of the  Constitution was filed and the learned Single Judge only felt  persuaded to remand the case back to the Additional Rent

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Controller for disposal. We fail to understand  how can learned  Single Judge  exercises extraordinary jurisdiction under Article  227 for the benefit of a person who himself has not pursued his  application under Order IX Rule 13 of the Code of Civil Procedure  which was dismissed.  The Rent Control Tribunal  both on facts  and law has found that the view taken by the Additional Rent  Controller  is correct as the wife of the tenant-respondent has  purchased a flat and they have alternative accommodation. We do  not see any ground for giving this latitude to the respondent. We  are of the view that the view taken by the learned Single Judge  of the High  Court appears to be not sustainable in view of the  concurrent finding by the courts below i.e. the Additional  Rent  Controller as well as the Rent Control Tribunal.   No reasons are  disclosed in the order of the High Court for holding that the  alternative accommodation acquired was not for residential  purpose.   We do not see any reason for the High Court to have  interfered with the matter. Hence, we allow this appeal and set  aside the impugned order dated July 23, 2004 passed in Civil  Miscellaneous Main No.328 of 2003 by the High Court of Delhi  and affirm the orders passed by the Additional Rent Controller  as well as the Rent Control Tribunal.  There shall be no order as  to costs.