Judgment :-

S.B. Sinha, J.

1. Leave granted.

2. Defendant in the suit is before us aggrieved by and dissatisfied with a judgment and order dated 12.01.2006 passed by a learned Single Judge of the High Court, Delhi in FAO No.50 of 2005 whereby and whereunder an appeal preferred by him under Section 104 read with Order XLIII Rule 1(d) of the Code of Civil Procedure was dismissed.

3. The relationship between the parties hereto was landlord and tenant. Respondents-

landlord filed a suit for eviction of the appellant from the suit premises. A prayer for recovery of arrears of rent was also made. The said suit was filed in the Original Side of the Delhi High Court. Appellant, indisputably, appeared before the Delhi High Court. Evidences had been adduced in the matter. The suit was listed for final hearing on 23.10.2003. The said suit, however, consequent upon issuance of a notification enhancing the pecuniary jurisdiction of the District Courts, was transferred to the Court of Additional District Judge, Delhi. On 13.2.2004, the learned Additional District Judge, Delhi passed the following order :

"Present. None.

Fresh suit received by transfer. It be checked and registered. Issue Court Notice to parties and their counsels for 15.7.2004"

4. Appellants contend that no summon was, in fact, issued as directed by the learned Additional District Judge nor the same was served upon them. It, however, stands admitted that respondents had also filed an interlocutory application on 8.3.2004 purported to be in terms of Order XXXVIII, Rule 5, Order XXXIX, Rule 1 and Section 151 of the Code of Civil Procedure.

5. Notice of motion on the said application was issued for service on the defendant. The said notice was undisputedly served upon the appellants. They, however, contend that they were not conversant with the Hindi language and, thus, were not aware of the contents thereof. The said interlocutory application came up before the Court on 15.7.2004 on which date, the court passed the following order :

"15.7.2004 Proxy Cl of Plaintiff. Court Notice issued to deft No.1. Received after due service called repeatedly. It is 11.00 AM. Be called at 12.30 PM. There are two defts in all.

15.7.2004 Pr. : Sh. Anil Airi, Adv. For the plff. Plff. Is also present in person. It is 11.45 AM. Case has been called repeatedly. The deft. No.1 is absent despite service of the Courtnotice. Ld.Cl. for plff. Submits that deft. No.2 has already been given up on 14.7.95."

The said suit was, therefore, taken up for ex parte hearing and upon consideration of the materials brought on record by the plaintiff-respondent, the suit was decreed. The appellants filed an application for setting aside the said ex perte decree which by reason of an order dated 14.1.2005 was dismissed, opining :

"The argument of counsel for the JD/applicant could of the suit had been served on the JD/applicant, therefore, the JD/applicant could not have been proceeded ex parte in the main suit. I do not agree with him. Had I preponed the date of hearing and issued notice of the applicant to the JD/applicant for any date before 15.7.2004, the matter would have been different and in that case, the absence of the JD/applicant on the date fixed would have resulted in proceeding ex parte against him so far as the application is concerned. However, in the present case, the notice of the applicant had been issued to the JD/applicant for 15.7.2004 on which the suit was to be taken up. Here, I would like to further add that the application filed by the plaintiff the notice of which had been served on the JD/applicant, contained each and every fact stating from the various dates and fact that the suit had lie in the mouth of the JD/applicant to Say that since, the court notice was not issued for 15.7.2004, therefore, even after served of the application moved by the plaintiff which was served on the JD/applicant for 15.7.2004, it (defendant) should not have been proceeded ex parte. The applicant u/o 9 Rule 13 C