V.K. Jhanji, J.@mdashThis is tenant''s revision directed against the order of the Rent Controller whereby application of the tenant (petitioner
herein) for setting aside ex-parte eviction order dated 25.9.1990 has been dismissed.
2. Landlords (respondents herein) filed eviction application against the tenant and ex-parte eviction order was passed on 25.9.1990. Landlord in
execution took possession of the premises on 21.12.1990. Tenant felt aggrieved of the ex-parte eviction order and thus, filed application under
Order 9 rule 13, Code of Civil Procedure, for setting aside the ex-parte order. Similarly, tenant also filed an appeal before the appellate Authority
against ex-parte order dated 25.9.1990. Appeal against order dated 25.9.1990 was dismissed on 10.5.1993. On dismissal of the appeal, Rent
Controller vide order dated 14.9.1996, dismissed the application under Order 9 Rule 13, Code of Civil Procedure, on the ground that in view of
Explanation added to Order 9 Rule 13 after decision of appeal, application under Order 9 Rule 13 is not competent. Against order dated
14.9.1996 passed by the Rent Controller, tenant filed appeal before the appellate Authority, but the appellate Authority vide order dated
14.10.1997 on finding that only revision could be filed against order dated 14.9.1996, dismissed the appeal being not maintainable. This is how the
present revision petition has been directed against order dated 14.9.1996 of the Rent Controller.
3. Learned Counsel appearing on behalf of tenant has contended that the tenant had not been served in this case and therefore, ex-parte eviction
order obtained against the tenant was patently illegal and tenant could not have been dispossessed in execution of the said order. It is also
contended that against the ex-parte order, tenant had two remedies; firstly, to file an application under Order 9 Rule 13 to set aside ex-parte order
and secondly, to challenge order in appeal. It is contended that both the remedies could be availed of simultaneously.
4. After hearing the learned counsel and going through the record, I am of the view that the revision petition deserves to be dismissed on the short
ground that after the decision in appeal, application under Order 9 rule 13, Code of Civil Procedure, was not competent.
5. Prior to amendment of 1976, a defendant burdened by an ex-parte decree could seek to set it aside under Order 9 rule 13 by the trial Court
and also prefer an appeal against it u/s 96 of the Code of Civil Procedure. Mere filing of the appeal did not take away the jurisdiction of the trial
Court to entertain and dispose of the application for setting aside ex-parte decree. It was where the appeal was disposed of, and the appellate
decree superseded the trial Court decree by reversing, confirming or varying it that the trial Court could not proceed to set aside its ex-parte
decree. For the trial Court, decree was said to have merged with the appellate decree. There are, of course, cases where the trial Court decree
does not merge in the appellate decree, like when the appeal is dismissed in default or abated etc. In cases, where trial Court decree merges in the
appellate decree, the application before the trial Court for setting aside the decree becomes incompetent. By amendment of 1976, the following
explanation was added to Order 9 rule 13, Code of Civil Procedure:
Explanation - where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any
ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte
decree.
6. In consequence of the Explanation, no application for setting aside ex-parte decree can lie where the defendant has filed an appeal and the
appeal has been disposed of on any ground other than the one on the basis of which appeal has been withdrawn by the appellant. This Explanation
was considered by the Apex Court in Rani Choudhury Vs. Lt.-Col. Suraj Jit Choudhury, , and in that context, their Lordships of the Supreme
Court observed:
No doubt the provision is described as an ""Explanation"", but as is well known it is not the rubric which decisively defines the true nature of a
statutory provision. Its true nature must be determined from the content of the provision, its import gathered from the language employed, and the
language construed in the context in which the provision has been enacted, xxx xxx xxx.
......The CPC (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law. By enacting the
Explanation, Parliament left it open to the defendant to apply under Rule 13 of O.9 for setting aside an ex parte decree only if the defendant had
opted not to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The
withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer an adjudication by the appellate
Court on the merits of the decree or have the decree set aside by the trial Court under Rule 13 of 0.9. The legislative attempt incorporated in the
Explanation was to discourage a two pronged attack on the decree and to confine the defendant to a single course of action. If he did not
withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground he was denied the right to apply under Rule 13 of
0.9. The disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into
operation.
7. In this case, appeal filed by the tenant was not withdrawn, but was dismissed on other grounds. In view of the Explanation, application under
Order 9 rule 13, Code of Civil Procedure, was not competent and therefore, Rent Controller has not committed any illegality in dismissing the
same. It is not necessary to go into the other contentions urged by learned counsel for the tenant.
Consequently, the revision petition fails. It is accordingly dismissed.