ORDER

1. Harnam Singh, father-in-law of the present appellant, was inducted as a tenant by Ajay Kumar Gupta (Respondent 2 herein) in respect of Shops Nos. 3371-72, Chowk Singhara, Qutab Road, Delhi 110 006. Harnam Singh died leaving behind two sons, namely, Prem Chand (Respondent 1 herein) and Ramesh Dutt (husband of the appellant). Ramesh Dutt died and is now represented by Mrs Kaushalya Devi, the appellant herein.

2. Respondent 1 filed a suit bearing No. 165 of 1992 in the Court of Civil Judge, Delhi.

3. The appellant, alleging that she had become the tenant in respect of the shops in question after the death of her father-in-law Harnam Singh, and was being dispossessed forcibly by her brother-in-law, Respondent 1, filed a suit bearing No. 58 of 1993 in the Court of the Senior Sub-Judge, Delhi.

4. Respondent 1 was served. He made a statement in the Court on 17 -3-1993 that he would not dispossess the appellant forcibly and without due process of law. The statement made by Prem Chand reads as under:

"I will not dispossess the plaintiff from the suit property and as per prayer clause Shops Nos. 3371-72, Chowk Singhara, Qutab Road, Delhi, forcibly and without due process of law."

5. In Suit No. 165 of 1992, Ramesh Dutt was proceeded ex parte. Prem Chand got an ex parte decree for possession of the shops in question. The appellant herein filed an application for setting aside the ex parte decree which was dismissed, aggrieved against which the appellant filed an appeal. The appeal having been dismissed, she filed a revision petition in the High Court, which has been dismissed by the impugned order.

6. Counsel for the appellant contends that in view of the statement made by Prem Chand on 17-3-1993 in Suit No. 58 of 1993 that he would not dispossess the appellant except in accordance with law, the ex parte decree which, according to her, was obtained by Prem Chand fraudulently, deserves to be set aside. The appellant had not been impleaded as a party, after the death of her husband, although the respondent knew that the appellant (Smt Kaushalya Devi) was claiming herself to be the tenant in respect of the disputed shops, after the death of her father-in-law Hamam Singh. We find force in the submission.

7. Respondent 1 knew that the appellant was claiming to be the tenant of the shops and he had made a statement in court that he would not dispossess her except in accordance with law. It was, therefore, incumbent upon him to disclose at the time of making the statement on 17-3-1993 in Suit No. 58 of 1993 that he had already filed Suit No. 165 of 1992 against the husband of the appellant. He should have impleaded her as a party-respondent in the said suit. At any rate, he should have brought her on record as a legal representative of deceased Ramesh Dutt. The order under challenge cannot be sustained.

8. Accordingly, the impugned order passed by the High Court as well as the courts below is set aside. The ex parte decree is set aside and the suit (No. 165 of 1992) is restored to its original file to be disposed of in accordance with law, after affording due opportunity to the parties to file their pleadings as well as to lead evidence. However, there shall be no order as to costs.

9. The civil appeal is allowed accordingly.