Judgment

SARKAR, J.: The appellant was the tenant of the respondent of a third floor flat in Bombay. The tenancy was governed by the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, hereafter referred to as the Rents Act. We will refer to the appellant as the tenant and the respondent as the landlord.

2. The landlord obtained a decree in ejectment against the tenant in a suit filed under O. 37 of the Code of Civil Procedure and the present appeal arises out of an application made by the tenant to set aside that decree under R. 4 of that Order. The question is, should the decree be set aside?

3. There were various proceedings between the parties before the judgment under appeal came to be passed but it will be unnecessary to refer to all of them. The suit was filed in the Court of Small Causes, Bombay on November 1, 1960 for ejectment on two grounds, namely, (1) a certain default in payment of rent and (2) unlawful sub-letting of the demised premises. The Rents Act permits ejectment if these grounds are proved. The tenant entered an appearance to the suit on December 3, 1960. On March 23, 1961, the landlord took out a summons for judgment under O. 37 R. 2 and the tenant opposed that summons by an affidavit, setting out various defences to the claim for ejectment to the details of which it is unnecessary to refer. On May 2, 1961, an order was made by consent of parties on that summons directing the tenant to deposit moneys in Court by certain instalments on account of the arrears of rent and providing that if it made a default in making the payments on the dates mentioned, the suit was to be set down for disposal in accordance with law. The effect of this order clearly was to give a conditional leave to defend so that on failure to perform the conditions the tenant would under the provisions of O. 37, R. 2 no longer have the right to defend the action.

4. Now the first instalment under the consent order was payable on June 1, 1961. It was not however paid. The tenant thereafter made an application for extension of time and this was rejected on June 22, 1961. It filed an appeal against the order refusing extention of time but this was rejected. The tenant then appealed against the consent order of May 2, 1961 but this also failed. Thereafter the suit was placed on the list on June 28, 1961, and a decree in ejectment was passed on that date under the provisions of O:37 on the basis of the statements made in the plaint and without permitting the tenant to appear and oppose. This is the decree which the tenant sought to set aside. These are all the proceedings between the parties that need be mentioned for the purpose of this judgment.

5. On September 12, 1961, the application under R. 4 of O. 37 to set aside the ejectment decree was made to the trial Court. The trial Court dismissed the application holding that no special ground had been made out by the tenant as required by R. 4 of O. 37 to set aside the decree. The tenant then appealed from this Order to a bench of the Court of Small Causes under S. 29 of the Rents Act which is said to have treated the appeal as a revision. That bench agreed with the trial Court that no special circumstances as required under R. 4 of O. 37 had been made out to justify the setting aside of the decree, but it observed that the Court had not considered whether relief could be given to the tenant under S. 151 of the Code and itself set aside the decree acting under that section. The landlord appealed to the High Court from the judgment of the bench. The High Court agreed with the Courts below that no special circumstances justifying the setting aside of the decree existed. It however held that there was no scope for applying S. 151 to the present case as R: 4 of O. 37 of the Code had made special provision for it. It also rejected the other contentions raised by the tenant, to one of which we will refer later. In the result the High Court allowed the appeal and hence the present appeal to