Rajindar Sachar, J.
(1) This is a tenant's second appeal against the order of the Rent Control Tribunal and Controller by which they refused to set aside the ex parte eviction order passed against the appellant.
(2) An eviction application was filed by the respondent-landlord on 8.6.73. Eviction was sought on various grounds mentioned in the eviction application. 21,1075 was the date fixed for the parties, evidence but the court remained busy in some other case . and the same could not be thereforee taken up, and the eviction application was adjourned to 19.1 76. On that day, landlord was present but there was no aSppearance on behalf of the tenant. The Rent Controller recorded the evidence produced by the landlord and passed an ex parte eviction order on 20.1.76.
(3) On 22.'1.76 January, 1976, an application was filed by the appellant tenant praying that by mistake the date in the diary of the counsel had been noted as 21st and that was the reason why neither the tenant nor his counsel appeared. The Explanationn was found unsatisfactory by the Rent Controller who dismissed on 21.11.77 the application filed under Order 9 Rule 13, Cpc by the tenant. The tenant went up in appeal to the Rent Control Tribunal but met -with no better success. The tenant has now come up to this Court in second appeal.
(4) The Explanationn given by the tenant was that the advocate for the tenant had noted the date by mistake as 21.1.76. The tenant was represented by Mr. P.L. Arora, Advocate. Mr. Arora filed his own affidavit before the Rent Controller in which it is stated that 21.1.76 is the date mentioned in the two diaries maintained by him and his Clerk and absence on 19.1.76 was not intentional but was due to bona fids mistake. This was, of course, denied by the respondent. The appeliant-tenant also produced Mr. Promod Ahuja, Advocate, (son of Mr. Pishori Lal, Advocate who is practicing with his father) also stated that the had noted 21.1.76 as the date in his diary instead of 19.1 76. The Tribunal has not accepted this evidence mainly on the ground that a notice was sent by Yash Paui Ahuja, Advocate, another son of Mr. P.L. Arora had mentioned that this very eviction application had been adjourned to 19.1.76. The Tribunal thereforee held that the reason given by the advocates that the date had been noted wrongly could not be accepted, in view of this notice. He also commented that diaries have not been produced by Mr. P.L, Arora and his clerk and this also seriously cast doubt on their version. He also ruled out the affidavit of Mr. Arora from consideration because in his view he was not put in the witness-box. In my view, the Tribunal has without any legal justification omitted to consider the affidavit of Mr. Arora. He was a counsel in the case. The affidavit was a perfect good evidence. Of course, if the respondent landlord wished to cross examine Mr. Arora, then he would have to make himself available and only if he refused could this affidavit be ignored from consideration. It is nobody's case that any request was made by the landlord to summon Mr. P.L. Arora for the purpose of cross-examination and tenant refused. The reason thereforee for omitting to consider Mr. Arora's affidavit is completely unwarranted in law. His affidavit should have taken into account, and could not be just ruled out. No adverse inference could thereforee have been raised by Tribunal for the non-production of Mr. P.L. Arora. If landlord did not choose to call him, the appellant cannot be blamed. The appellant has also contended that the notice given by Mr. Yash Paul Ahuja in which the date for eviction application is given as 19.1,79 did npt bind the appellant because Mr. Yash Paul Ahuja was not appearing as his counsel. The power of attorney also show that the appellant had given the power to Mr. P.L. Arora and Vinod Ahuja though the power of attorney is printed in the name of Yash Paul Ahuja, his name is scored out and in token of acceptance only Mr. P.L. Arora and Vinod Ahuja have signed the acceptance. Mr. Yash Paul Ahuja is not one of the counsel. The Tribunal had accepted that Mr. Yash Paul Ahuja was not the counsel for the appellant but assumed that as the notice mentioned the next date of eviction application as 19-1-1976, it necessarily implied knowledge the said date to the appellant and his counsel. This was really based on surmise rather than on legal evidence. Mr. Yash Paul Ahuja was practicing separately from Mr, P.L. Arora though the office was common but still this reference in the notice by itself could not prove conclusively that the appellant and his counsel knew of the date of 19.1.76. The view of the Tribunal that as Mr. Yash Paul Ahuja, Advocate was not produced an adverse inference should be raised against the appellant was misplaced because if any thing the responsibility for producting Mr. Yash Paul Ahuja should have been on the respondent-landlord because he was relying on his notice, Ext. R-1, and it was up to the landlord to prove that the knowledge of date by Mr. Y. P. Ahuja was also known to appellant or his counsel. It would be appreciated that there is no finding or suggestion by the courts below that the tenant has been contumaciously or even otherwise trying to delay the proceedings by dilatory tactics. On no previous occasion had the appellant absented itself with a view to delaying the matter. No doubt the proceedings have been pending in the lower court for quite some time but that is because of rather unfortunate heavy load on courts and not due to any action of the appellant. The conduct of the appellant also shows that the absence was nothing but unintentional. The application dated 211.76 was filed in the court on 22.1-1976 The tenant did not even wait for full limitation period which he would have done if the only purpose was to delay the proceedings. It is unfortunate that strong opposition was taken to set aside the exparte order, which had it not been done, might have concluded the matter much early. I do feel that when an affidavit is filed by a counsel of standing of Mr. Arora and another advocate Mr. Promod Ahuja gave evidence that date was noted wrongly as 21.1.76 instead of 19.1.76 the courts below should not have rejected it on conjectures and suppositions unless there was incontrovertible proof to suggest that the appellant's counsel knew of the date of 19th January, 1976 and had deliberately absented themselves. The Rent Control Tribunal also misdirected itself in law when it refused to look to diary which Mr. P.L. Arora wanted to show in support of his version that date noted was 21-1-76. It refused to look at the diaries because according to it this was not the proper proceeding and no application had been moved before it for permission to lead additional evidence. In this connection, I find that after Mr. Promod Ahuja had given his evidence an application had been moved on 22-2-77 before the Rent Controller for seeking permission for producing his diary. This was opposed by the landlord on the ground that it should have been produced earlier. Now the date for arguments was 19 3-77 and I should have thought that interest of Justice demanded that the trial court direct the diaries to be produced on the date on which arguments were fixed, this would not have delayed the matter. Some how the courts are more prone to play a passive part. This request was as usual opposed by the respondent and ultimately by an order of 26-1-77 the Rent Controller refused to allow the diaries to be produced. The plight and quandary of the appellant can be well imagined. The appellant's counsel request to produce the diaries is rejected by the Rent Controller, the Rent Control Tribunal refuses to look into them on the assumption, (which is against record) that an application to produce additional evidence was not made Procedure is a tool to subserve justice and is not meantto stifle proper opportunity being to the parties. The Tribunal would have been well advised to look into diaries and given a opportunity if so desired for further cross-examination to the landlord. Thus the controversy could have been decided satisfactorily. Because if diaries showed that the date of 19th was noted, the appellant would have no justification to be absent. But as there is nothing to show'otherwise, in view of affidavit and evidence of advocates which without strong reason cannot be ignored, as done by the Tribunal, there was no conclusion but that there was patent justification for the appellant not to have been present on 19-1-76, the date fixed for evidence. In that view the courts below have acted illegally and with material irregularity in refusing to set aside the ex parte order for eviction. I would in the circumstances allow the appeal, set aside the impugned orders of the Rent Controller and Rent Control Tribunal and remit the case back to Rent Controller for fresh decision according to law. The parties will now be relegated to the stage for leading evidence, i.e. when they were on 19th January, 1976. I may in this connection note that as on the date of evidence, tenant was proceeded ex parte the respondent landlord had at that stage given up some of his pleas for seeking eviction and had restricted himself to lead evidence on the two points i. e. clauses (e) and (h) of proviso to sub-section 1 of Section 14 Now that the matter is going back for taking evidence and decision afresh I would make it clear that the landlord is not bound by that concession and it will be open to him to urge and to lead evidence on all the points that have been taken by him in the eviction application, if so advised.
(5) One of the grounds for eviction is under section 14(1)(h). nemely, that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted, a residence, In order to expedite the proceedings, I am directing the appellant to file an affidavit in this Court giving the names and duration of the various tenants in the house owned by her in defense Colony. It is also conceded by Mr. Bhatia on behalf of the appellant that this affidavit filed in pursuance of my directions will be treated as admission by the tenant and be read as evidence before the Rent Controller and that no objection will be raised on this account by the appellant. Of course the appellant will have a right, just like the landlord to lead other evidence as permitted by law.