JUDGMENT

FAZAL ALI, J.:— This appeal by special leave is directed against a judgment of the Delhi High Court and arises out of an application filed by Respondent No.1 who claimed to the tenant of the appellant, recalling the warrant of possession issued by the Controller in pursuance of a decree dated 31-7-1961 passed against the 1st respondent.

2. The case had a rather chequered career having passed through several phases. To begin with the landlord-appellant executed a lease in respect of the disputed premises in favour of Respondent No.2 for three years as far back as 1-4-1942. In 1948, a suit was brought by the appellant for eviction of the tenant for non-payment of rent on the ground of conversion of the user of the premises. The suit for possession was however dismissed but a decree dated 31-11-1948 for arrears of rent was passed and it was held that Laxmi Bank was the real tenant. Subsequently, the Bombay High Court ordered the Bank to be wound up and in the winding up proceedings, the said High Court appointed an Official Liquidator who on 16-2-1961 sold the tenancy rights to Respondent No.1 - S. N. Jain. This sale was confirmed by the High Court on the same date and as a result thereof respondent No.1 took possession of the premises on 24-2-1961. On 5-4-1961, the landlord-appellant filed an application under the Delhi Rent Control Act for eviction of Laxmi Bank. On 31-7-1961, a decree for eviction was passed in favour of the landlord-appellant. On 22-1-1963, Respondent No.1 filed a suit for a declaration that he was a tenant of the landlord-appellant. This suit was dismissed for non-prosecution on 5-5-1964 and an application to set aside the ex parte decree was also dismissed and the appeal against that order also failed. Thereafter Respondent No.1 filled an application under Section 25 of Delhi Rent Control Act (hereinafter referred to as the Act) for recalling the warrant of possession issued by the Court in pursuance of the decree dated 31-7-1961 in favour of the landlord.

3. The present appeal arises out of these proceedings. The Rent Controller allowed the application and recalled the warrant of possession by its Order dated 20-12-1968. The matter was then taken up by the landlord in appeal to the Rent Control Tribunal which by its Order dated 25-11-1968 reversed the order of the Rent Controller and dismissed the tenants application. A second appeal against the order of Tribunal was then filed by the tenant to the High Court which reversed the order of the Rent Control Tribunal and restored the order of the Rent Controller, hence this appeal by special leave.

4. Mr. Mridul appearing for the appellant challenged before us the findings of the High Court on point Nos. 1 and 3 which are formulated at page 91 of the judgment of the Delhi High Court. These points may be extracted thus :-

"(1) The application made by the appellant before the High Court under Section 25 was not barred by reason of the dismissal of the appellants suit for default of appearance under Order IX, Rule 9, C.P.C.

(3) The transfer to the appellant by the Official Liquidator of the tenancy rights being voluntary did not come within the mischief of Section 14 (1) (b) of the Act.

5. In the first place it was argued that so far as point No.1 is concerned, the High Court was wrong in holding that the application of Respondent No.1 was not barred by the reason of the dismissal of the appellants suit for setting aside the ex parte decree by the principle of res judicata or Order IX, Rule 9 C.P.C. It was contended that even if the previous suit filed by respondent No.1 for declaration of his status as a tenant was dismissed for default but as the application for setting aside the decree also failed, there was an adjudication against the then plaintiff-respondent No.1 and therefore the present suit was clearly barred by the principles of res judicata or Order IX Rule 9. At any rate there can be no escape from the position that the application of respondent No.