- (1.) In this writ petition under Article 227 of the Constitution, challenge is made to an order dated 24/5/2000 passed by the learned Additional Rent Controller, Delhi, thereby disposing of an application under Order 9 Rule 9 Civil Procedure Code moved on behalf of the petitioner-landlord praying for setting aside the dismissal of a petition, dismissed in default on 19/1/2000, and for its restoration.
(2.) On 19/1/2000, petition of the writ petitioner was listed for recording of evidence before the learned Controller but neither the petitioner nor her counsel or any other representative put in appearance and consequently the petition was dismissed in the post lunch session after waiting for the petitioner. Application under Order 9 Rule 9 Civil Procedure Code was moved on behalf of the petitioner herein stating that the counsel for the petitioner Ms. Rekha Aggarwal being busy in connection with her personal case listed in the Hon'ble High Court, she had asked a colleague Mr.Ashok Rawal, Advocate, to attend the case who unfortunately fell sick on that day and could not attend the hearing leading to the dismissal of the petition. The application was supported by affidavit of the counsel for the petitioner and Sh. Ashok Rawal, Advocate. The application was opposed on behalf of the respondent thereby denying the averments made in the application and there being any sufficient reason for non-appearance of the petitioner or her counsel and any good cause for restoration of the petition. The learned trial court although took note of the affidavits filed by the above named two advocates but has dismissed the application primarily on the ground that the absence of the petitioner on the date of hearing was not explained.
(3.) Aggrieved by the said order, the petitioner approached this court by means of a Civil Revision Petition bearing No.878/00 which was disposed of by this court vide order dated 13/2/2001. The order reads as under:- " When the case was called out earlier a request for pass over was made by Mr.Shiv Kumar on the ground that Ms. Rekha Aggarwal has gone to Ghaziabad. It can scarcely be appreciated why the learned Counsel has to Ghaziabad and not attend the case here. The matter has been called out twice but there is no appearance on behalf of he petitioner. I have perused the impugned order dated 24/5/2000. The Additional Rent Controller had dismissed the application under Order 9 Rule 9 Civil Procedure Code for the reason that the case had been posted before him on that day for recording the petitioner's evidence. It was his view that even if the counsel is not available (as also transpires before me), there was no justification for the petitioner not be present. I find no infirmity with this order. Instead of filing an appeal against this order, a Revision has been filed. The Revision is not maintainable. Dismissed." Later, the petitioner filed Civil Miscellaneous applications bearing No.524/00 and 525/00 which were disposed of by the learned Single Judge on 28/2/2001, with the following "After some hearing, learned counsel appearing on behalf of petitioner prays that the applications be permitted to be withdrawn as she will approach the Court Under Article 227 of the Constitution of India. CMs.524-525/00 are dismissed as withdrawn.";