Decided on August 31,1950

Lady Raj Malik And Anr. Appellant
Dr. Susanta Sen Respondents


Khosla, J. - (1.) THE matter before us has arisen out of a suit for ejectment under the Delhi and Ajmer -Merwara Rent Control Act "Raj Malik and Teja Singh v. Susanta Sen" filed in the Court of a Subordinate Judge, Delhi.
(2.) THE suit was filed on 19 -7 -1948 and summons to the Defendant were issued for 26 -8 -1948. The summons were served on the Defendant on 10 -8 -1948 and when the matter came up for hearing on 26 -8 -1948 the Defendant Sen did not appear in Court. The case was adjourned to 31 -8 -1948 and the Plaintiffs were directed to produce their evidence. On 31 -8 -1948 the Defendant was again absent. The statement of Teja Singh Plaintiff was recorded and a decree was passed ex parte in favour of Plaintiff 1. No application to set aside this ex parte decree under Order 9, Code of Civil Procedure was made, but on 27 -1 -1949, the Defendant filed an appeal against the ex parte decree in the Court of the District Judge. The appeal was on the face of it barred by time and an application for extension of limitation under the provisions of Section 5, Limitation Act, was also presented at the same time. The Plaintiffs' contention at the time of the hearing of the appeal was that the appeal was barred by time and there was no good ground for extending limitation. The District Judge before proceeding to consider this point thought it fit to call some evidence and after recording this evidence allowed the appeal and set aside the ex parte decree. He remanded the case for a fresh trial. This order was passed on 26 -8 -1949 and the Plaintiffs filed an appeal against it to this Court on 7 -11 -1949. Before dealing with the merits of the case a preliminary point regarding the competence of this appeal must be considered.
(3.) THE suit is governed by the provisions of the Delhi and Ajmer -Merwara Rent Control Act and the provisions set out in the Rules framed by this Court under Section 14(2) of the Act apply. Rule 5 provides that there is no right of second appeal in a case under this Act. Rule 6(i) gives the parties to the suit a right of revision, and Rule 9 provides that the period within which such a petition for revision may be preferred is 60 days. The contention of Mr. Tek Chand before us is that an appeal against the order of the District Judge as framed does not lie and that it should be dismissed on this preliminary ground. Mr. Bishan Narain has met this objection by making two submissions. In the first place, he argued that an appeal does in Act lie because Rule 5 is ultra vires as it takes away the right of a party to file a second appeal which has been given to him under the provisions of the Code of Civil Procedure. The second submission amounts to a prayer, namely, that the appeal should be treated as a petition for revision under the Rules.;

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