I.D. Dua, C.J.
(1) This is a second appeal from order, presented under section 39 of the Delhi Rent Control Act, 1958 (hereafter called the Act) from the order of the learned Rent Control Tribunal dated 5/12/1967 dismissing the appellant's appeal from the order of the learned Additional Rent Controller dated 4/9/1967 rejecting the application of Suraj Parkash for setting aside the ex-parte order of eviction made on 27/5/1966.
(2) It appears that in the proceedings for eviction, 27/5/1966 was fixed for the remaining evidence of the landlord and 2/6/1966 for the evidence of the tenant. On 27/5/1966, neither the tenant nor his counsel appeared at the hearing, with the result that on that very day, an ex-parte order of eviction was made against him. On an application for setting aside the ex-parte order having been made, btoh the Courts below, on a consideration of the evidence, have come to the concurrent conclusion that the tenant had nto shown any sufficient cause for his absence on 27/5/1966 and on this finding, declined to set aside the ex-parte decree.
(3) Before me, an attempt has been made to persuade me to reevaluate the evidence and come to the conclusion that there was a just ground for the tenant nto to appear on 27/5/1966, but I am unable to find any ground on Second Appeal under section 39 of the Act to re-assess the evidence for myself. Unless the appeal involves some substantial question of law, this Court has no power to interfere under section 39(2) of the Act with the conclusions of the Rent Control Tribunal. The challenge on the point canvassed does nto even make out a question of law, leave alone a substantial question of law, within the contemplation of this sub-section.
(4) The next challenge is based on the argument that the Rent Controller having actually fixed 2/6/1966 for the evidence of the tenant, merely because he was absent on 27/5/1966, when the landlords evidence was to be recorded, could nto, on any reasonable ground, justify preponement of the case and of giving a final decision ex-parte against the tenant on 27/5/1966. There seems to be merit in this submission. On general principles, it appears to me that the Order made earlier fixing 2/6/1966 for the evidence of the tenant, could nto be ignored and the tenant deprived of his right to adduce his evidence on that date, without cogent and legally supportable reasons. Presentation of a litigant's defense is, as a general rule nto to be excluded except where the law clearly postulates such exclusion. Btoh sides before me have, however, relied on certain decisions based on the provisions of the Code of Civil Procedure and they have btoh referred to me to rule 23 of the Delhi Rent Control Rules 1959 according to which in deciding any question relating to the procedure nto specially provided by the Act and the Rules, the Controller and the Rent Control Tribunal are to be guided, as far as possible, by the provisions contained in the said Code. In my opinion, those decisions are of little assistance because the absence of the tenant on 27/5/1966 could only empower the Rent Controller to proceed with the hearing on that particular day in the absence of the tenant. No further consequence to the prejudice of the tenant could, on any sound principle ensue from his absence except that the proceedings held on that day in his absence would be binding on him and he could nto legitimately have any grievance against those ex-parte proceedings. Needless to point out that no statutory provision has been brought to my ntoice which would support or justify virtual review of the order fixing 2/6/1966 as the date for recording the tenant's evidence. Turning now to the effect of Rule 23, in my opinion, the Code of Civil Procedure, which in the absence of special procedure in the Act and the Rules is to serve as a beacon-light, must be considered to have been designed to facilitate justice and to further its ends. This Code is nto to be looked upon as a penal enactment intended to punish the litigants or to trip people up, irrespective of considerations of equal justice to btoh sides. Our law of procedure is indeed grounded on the recognised principle of natural justice which requires that decisions prejudicially affecting the parties should nto as a general rule be reached behind their backs without affording them a reasonable opportunity of hearing. It is this broad rule in the light of which the provisions of the Code are to be construed and followed. This aspect was emphasised by the Supreme Court in Sangram Singh v. Election Tribunal,(1) This decision was followed by a Bench of the Punjab High Court in Mahant Ramji Das v. Bhupinder Singh,(2) It is thus clear that non-appearance of the tenant on 27/5/1966 merely entitled recording of the evidence of the opposite party in the tenant's absence but it did nto in any way have the effect of interfering with the earlier order fixing 2/6/1966 for recording the tenant's evidence. The lapse on the part of the tenant in absenting himself on 27/5/1966 did nto mean that he was mortgaging the hearing already fixed for 2/6/1966. As a matter of fact, it appears to me that passing the ex-parte order of eviction on 27/5/1966 virtually amounts to reviewing the earlier order dated 14/4/1966 when 2/6/1966 was fixed for recording the tenant's evidence and for this procedure, there could hardly be any section. Indeed neither any statutory provision nor any sound principle of law has been brought to my ntoice in support of the impugned order.
(5) I have nto dealt with the decisions cited by the parties, but I consider it fair to ntoe those decisions. The appellant relied upon Rajabala Dasi v. Jai Chand Lal Babu and tohers,(3) and the respondents on Malhai Mcnhu v. Kulti Runju Kovilammu,(4) U Aung Gvi v. Government of Burma,(5) and Ramachandra Aiyar v. Raju (6).
The respondent's learned counsel has, however, also contended that in the application for setting aside the ex-parte order made on 27/5/1966, the final order of ejectment could nto be questioned and that it was only on appeal that it could be assailed. I am wholly unable to appreciate this contention. This contention also seems to me to be amply met by the reasoning contained in the Supreme Court decision in the case of Sangram Singh. But this apart, it was certainly open to the tenant to seek to have btoh the order recording the opposite party's evidence in the absence of the tenant, and the ex-parte order of eviction set aside. The finding that there was no justification for his absence recorded on 17/5/1966 merely meant that the evidence of the landlord in the absence of the tenant was binding on the opposite party, but it did nto further deprive the tenant of his right to seek the final order of eviction, also made ex-parte, set aside for the simple reason that it was made without any legal justification before recording the tenant's evidence already fixed for 2/6/1966 Whether or nto the tenant could also have appealed from the order of eviction on this ground, does nto deprive the tenant of his right to have the final ex-parte order of eviction set aside in these proceedings. This objection on behalf of the respondents thus fails.
(6) The respondents have next submitted that the present proceedings are merely intended to delay the disposal of the ejectment proceedings because the tenant had nto summoned any witnesses for 2/6/1966. In my opinion, if the tenant had a right to produce his evidence on 2/6/1966, the fact that he had nto summoned any witness, would be immaterial because he could have brought the witnesses with him or at least he could have put himself in the witness-box. This objection raised by the respondents would thus seem to me to be too tenuous to justify the ex-parte order of eviction.
(7) After considering all the facts and circumstances of this case, in my view, the impugned orders must be quashed and the case sent back to the Rent Controller for recording the evidence of the tenant. As the proceedings have been prolonged primarily because of the absence of the tenant and his counsel on 27/5/1966, 1. think he must pay a sum of Rs. 150.00 as conditional costs for allowing this appeal and giving to the tenant a further opportunity of producing his evidence. On enquiry by me, the appellant's learned counsel has given the names of the following four witnesses whom he wants to examine in addition to himself:-
1. Sardar Harbhajan Singh.