( 1 ) ONE S. F. Lakhani claiming to be the owner of entire property No. E-14/2, Vasant Vihar, New Delhi, filed a suit for possession against the appellant with respect to one garage situated in the said property besides some other reliefs. Lakhani made his wife Lakshmi as a co-plaintiff in the said suit. The suit was filed some time in March 1992 when S. F. Lakhani claimed to be 88 years old. He died during the pendency of the suit. His son M. S. Lakhani was substituted in his place. The case of the plaintiffs was that the defendant was inducted as a tenant in two rooms along with a covered Varandah and W. C. on the first floor above the two garages in the annexe block of the property bearing No. E-14/2, Vasant Vihar, New Delhi at a monthly rent of Rs. 550. 00 which was later on enhanced to Rs. 650. 00 per month exclusive of water and electricity charges. The present proceedings are with respect to a garage on the ground floor of the said premises. According to the plaintiffs the defendant unauthorisedly took possession of the garage in question which is just below the tenanted premises of the defendant. In the written statement the defendant/appellant took a plea that the garage in question alongwith an attached bathroom was let out to him by the plaintiff in the year 1981 as per an oral agreement at a monthly rent of Rs. 150. 00. Thus the defendant/appellant set up the plea of tenancy with respect to the premises in question. The plaintiff denied having let out the said portion to the appellant. The plaintiff relied upon the written statement filed by the defendant in another proceedings between the parties with respect to eviction of the defendant from the premises which was admittedly under the tenancy of the defendant. With respect to the said premises, the landlord, i. e. plaintiff instituted an eviction petition under Section 14 (1) (e) of the Delhi Rent Control Act. The landlord stated in the said eviction petition that the tenanted premises comprised of "two rooms measuring 13 8" X 9 3" each along with covered varandah in front and W. C. on the first floor". In reply to the said averment in the eviction petition, the tenant stated in his written statement as under:-

"that para No. 8 is denied. The accommodation in occupation of the respondent comprises of suit premises and bathroom, courtyard with right to use roof and not as alleged. "

( 2 ) IT is significant to note that the written statement is dated 30th November 1988, i. e. much after the alleged tenancy with respect to the garage which is the subject matter of present litigation which according to the tenant was created in the year 1981. According to the plaintiffs/respondents if the appellant had become a tenant with respect to the garage in the year 1982 he would have surely stated so in the written statement which he filed in the year 1988 in the aforementioned eviction.

( 3 ) THE following issues were framed in the suit on 12th August 1997:-

1. Whether there was no privity of contract between defendant and plaintiff No. 2? OPD.

2. Whether the defendant is tenant and not a trespasser in the premises consequently the suit is barred under D. R. C. Act? OPD

3. Whether the plaintiff is entitled for possession of the garage at E-14/2 Vasant Vihar, New Delhi? OPD

4. Whether the plaintiff is entitled for permanent injunction against the defendant for removal of obstructions and use of rear lawn?

5. Relief.

( 4 ) FOR the plaintiffs M. S. Lakhani, the son of the original owner appeared as PW-1. The defendant did not lead any evidence nor he filed any documents in support of his case. He was proceeded ex parte for failure to appear in Court in person or through counsel on 6th October 1998.

( 5 ) THE learned counsel has first made a grievance about the defendant/appellant having been proceeded ex parte and for that reason being denied opportunity to lead evidence. In this connection it is to be noted that on 7th September 1998 the case was adjourned for eviden