Daya Krishan Mahajan, J. - (1.) THIS is an appeal under Section 9 of the Delhi Rent Act, 1958, and has arisen in the following circumstances: An application was made by the landlord for the eviction of the tenant. Notice of the application was served on the tenant. He did not appear and an ex parte order of eviction was passed. After the passing of the ex parte order, the tenant applied for setting aside the same on the ground that no service had been effected on him of the application for eviction. This matter was enquired into and the Rent Controller came to the conclusion that the contention of the tenant, that he was not served in the application for eviction or that he was prevented from appearing in Court on sufficient cause, was incorrect. He, therefore, refused to set aside the ex parte order. Against the decision, an appeal was taken to the Rent Control Tribunal. The Tribunal refused to decide the appeal on the short ground that no appeal was competent as to order appealed against was not an order under the Act, and for this reliance was placed on a decision of this Court in South Asia Industries Private Limited v. S.B. Sarup Singh, 1962 P.L.R. 85. It is against this decision that the present second appeal from order has been preferred.
(2.) THE short question that requires determination is whether the order of the Rent Controller refusing to set aside ex parte order is an order under the Act, no appeal would be competent. That is axiomatic. In this connection, reference may be made to Section 37 of the Act. Under this section, the procedure which the Rent Controller has to follow is the procedure prescribed for the Courts of Small Causes. I put it to the learned Counsel for the Respondent whether a Judge Small Cause Court had the power to set aside or refuse to set aside an ex parte order or decree. Learned Counsel frankly conceded that he had the power. Therefore, if the Judge Small Cause Court had the power, by virtue of Section 37 of the Act, the Rent Controller had also that power and that being so the order refusing to set aside an ex parte order must be held to be an order under Section 37. That being so, the order is clearly appealable and the Court below was in error in holding that it was not so appealable. The decision of this Court in South Asia Industries Private, Limited's case, 1962 P.L.R. 85 has no applicability to the facts of the present case. In that case it was held as a fact that the order appealed against was not an order under the provisions of the Act. That being so, this appeal is allowed, the decision of the Rent Control Tribunal is set aside and the Tribunal is directed to hear and decide the appeal on merits. In the circumstances of the case, there will be no order as to costs.
(3.) THE parties are directed to appear in the Tribunal on the 3rd September, 1963.;