Hari Krishan vs Madan Lal Sharma And Anr.
1987 Latest Caselaw 272 Del

JUDGMENT

Sunanda Bhandare, J.

(1) In this petition under Art. 227 of the Constitution of India the Petitioner has challenged the order of the Additional Rent Controller dated 27th October 1986 whereby the application under Order 9 Rule 9 read with Section 151 of the Civil Procedure Code for restoration of the petition for eviction was rejected. The petitioner has also challenged the order of the Additional Rent Controller dated 11th November 1986 whereby the application of the petitioner for review of the order dated 27th October 1986 was rejected.

(2) The facts of the case in brief are as follows : "THE petitioner filed an eviction petition on the ground of bona fide requirement under Section 14(l)(e) of the Delhi Rent Control Act for eviction of respondent No. 1 from flat No. 63 Prasad Nagar, New Delhi in July 1985. Thereafter, respondent no. 1 filed an application for leave to contest which was allowed and consequently he also filed the written statement. The case was listed for the evidence of the petitioner on 16th September, 1986. However, since 16th September, 1986 was declared a holiday, the case was listed on 17th September, 1986. Since no one appeared for the petitioner on that day, the petition was dismissed in default. The petitioner sought restoration of the petition by way of an application under Order 9 Rule 9 of the Civil Procedure Code on the ground that the petition was listed only for orders on 17th September, 1986 and, therefore, the court did not have the power to dismiss the petition in default."

(3) It was contended by the learned counsel for the petitioner that under Order 9 Rule 3 of the Civil Procedure Code a suit can be dismissed if neither party appears when the suit is called on for hearing. It was submitted that in the present case, on 17th September 1986 the case was not fixed for hearing but was only fixed for orders and, therefore, the Additional Rent Controller was not right in dismissing the suit in default. Learned counsel relied on Hukam Chand v. Mani Shibrat Dass & Another, Air 1934 Lah. 984 in support of his contention.

(4) No one has appeared on behalf of the respondent in spite of service, to oppose this petition.

(5) I find substantial force in the contention of the learned counsel for the petitioner. Order 9 Rule 3 of the Civil Procedure Code is dear. The court does not have the power to dismiss a case in default if the case is only listed for orders. In the present case, since 16th September, 1986 was declared a holiday, the case was again listed on 17th September, 1986 only for orders and not for hearing. The Additional Rent Controller has, therefore, exceeded his jurisdiction in dismissing the case in default on that date. Furthermore, I find from the impugned orders that the Additional Rent Controller has not dealt with this aspect of the matter at all and has dismissed the application under Order 9 Rule 9 of the Civil Procedure Code and the review application on the ground that no sufficient cause has shown for the absence of the petitioner on 17th September, 1986. The impugned orders, therefore, cannot be sustained.

(6) In the result, the petition is allowed. The impugned orders dated 27th October and 11th November 1986 are set aside. Eviction Petition No. 1181/85 is directed to be restored to its original number. The parties will appear before the Additional Rent Controller on 26-5-87 for further proceedings. No costs.