R.K. Sharma Vs Praveen Gupta

N.G. Nandi, J.

(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 u/s 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 u/s 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 u/s 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 CPC (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.

(4) In the case of Shah Babulal Khimji Vs. Jayaben D. Kania and Another, , in light of Letters Patent (Bom.) Clause 15, the scope, meaning and purport of `Judgment'' came to be considered by the Supreme Court and it has been held that the test to determine as to when order passed by Trial Judge can be said to be appealable as a `judgment'' would be whether the order can be said to decide the right/liability of the parties. It has been observed "whenever a Trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of Letters Patent. Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decides the matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned....." At page 1816, it is observed "Similarly, suppose the trial judge passes an order setting aside an ex-parte decree against the defendant, which is not appealable under any of the clauses of Order 43 Rule 1 though an order rejecting an application to set aside the decree passed ex-parte falls within Order 43 Rule 1(d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of Letters Patent. The fact, however, remains that the order setting the ex-parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, Therefore, the order passed by the Trial Judge setting aside the ex-parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is, Therefore, appealable to a larger Bench."

(5) In the case of Central Bank of India Vs. Shri Gokal Chand, , while considering the provisions of Sections 38(1), 36 and 37 of the Delhi Rent Control Act, it has been held that Section 38(1) contemplates appeal only from order which affects right or liability of party and that no appeal lies thereunder, from interlocutory orders which are merely procedural and do not affect rights or liabilities or parties...."

(6) In the case of Mst.Azizan Bi Vs. Ganga Dhar & Others, 1978 (2) Rcj page 290, (D.B) while considering the maintainability of the appeal before the Rent Control Tribunal u/s 38 of the Delhi Rent Control Act 1958 against an order passed u/s 25 of the said Act refusing to stay dispossession of a person claiming an independent title to the premises which are alleged to be in his possession, it is held that in view of Sections 37(2) and 42 of the Delhi Rent Control Act read with Rule 23 made under the Act, an application for the execution of an order for eviction stands on the same footing as the application for execution of a decree in the civil court and that Section 25 does not depart from the principles of the CPC and that the appeal against the order u/s 25 of the Act would be maintainable before the Rent Control Tribunal u/s 38 of the Act. In paragraph 6, it is observed that the order granting or refusing stay of dispossession in a proceeding under the proviso to Section 25 is not a mere procedural order and that it is an order which affects the right to legal possession claimed against each other by the landlord and the claimant. It is, Therefore, an order affecting the rights and liabilities of the parties and, Therefore, appealable u/s 38(1) in accordance with the ratio of the Supreme Court decision in the case of Central Bank of India Vs. Sh.Gokal Chand (supra)."

(7) Thus, it would be seen from the principle enunciated by the judicial pronouncements, referred to above, that an order which affects the legal rights and liabilities of the parties against each other would be appealable u/s 38(1) of the Act. The observations reproduced above in the case of Shah Babulal Khimji Vs. Jayaben D.Kania and another (supra) would clinch the issue inasmuch as the order setting aside an ex-parte decree against the defendant which is not appealable under any of the clauses of Order 43 Rule 1, though an order rejecting an application to set aside the decree passed ex-parte falls within Order 43 Rule 1(d) and is appealable. The order setting aside decree passed ex-parte is an order which affects/decides the rights and liabilities of the parties and, Therefore, the impugned order passed by the learned Arc setting aside the ex-parte decree vitally affects the valuable rights of the petitioner and hence amounts to a judgment and, Therefore, appealable u/s 38(1) of the Act.

(8) The order setting aside ex-parte decree under Order 9 Rule 13 of the Code cannot be regarded as a mere procedural order though passed under the provisions of the Code. The impugned order, as pointed out above, decides the valuable rights/liabilities of the parties concerning each other. This is not an order of the nature which could be taken as a ground of objection in appeal from the final order in the main proceedings.

(9) The above discussion reveals that there is considerable force in the preliminary objection raised by Mr.Ishwar Sahai, learned senior counsel for the respondent (original respondent/tenant) and following the principle laid down by the Supreme Court and the D.B. of this High Court, as pointed out above, the preliminary objection has to be upheld and the present petition under Article 227 of the Constitution of India held not maintainable as the remedy for the present petitioner would be by way of an appeal u/s 38(1) of the Act. Ordered accordingly.