An order refusing to set aside an ex parte order is appealable under section 38 of the Delhi Rent Control Act, and the order of the Rent Control Tribunal dismissing the appeal is appealable under section 39 of the Act. However, a revision petition against such an order is barred by limitation if it is filed more than 76 days after the order of the Rent Control Tribunal was passed.

( 1 ) HARISH Kumar and his brothers applied in the Court of the Rent Controller for the eviction of Ram Kumar and his brother Ram Krishan on the grounds of (i) default in payment of rent, (ii ) sub-letting and (iii) bona fide personal requirement. These pleas were controerted and it was added that Ra n Kishan being the real brother of Ram Kumar, was living with him and there was no question of sub-tenany. On 9th September, 1960, claim against Ram Kishan was given up and Ram Kumar being absent, ex pane evidence was led on the basis of which an order of eviction based on the ground of subletting was passed against Ram Kumar

( 2 ) AN application for setting aside the exparte order was made by Ram Kumar, but the same was dismissed in default. An application for restoration of that application was also dismissed in default on 17th Jannary 1962. The same day, a further application was made for re-to- ration of th" earlier application for restroration dismissed in default on 17th January 1962. This later application was dismissed on tha merits on 12th April, 1962 on the finding that no sufficient ground was shown for the absence of appaarance on l7th January, 1962 when the case was called. An appeal against this order was dismissed by the Rent Control Tribunal on 1st December, 1962 on the ground that no appeal lay under section 38 of the Delhi Rent Control Act as the impugned order was not one made under the provisions of the said Act. Reliance for this view was placed on a decision by Gosain, J. in South Asia Industries v. S. B Sarup Singh.

( 3 ) IT is against this order that the present revision has been preferred. Shri Shyam Kishore, the learned counsel for the respondents has raised a preliminary objection that an appeal lies against the impugned order under section 39 of the Delhi Rent Act and that the same is barred by time. No revision would in the circumstances b3 enter tainable. On the merits also, it is contended that no explanation for absence on l7th January, 1962 is forthcoming, with the result that the impugned order deserves to be upheld.

( 4 ) THE pstitioner Ram Kumar has, it may be painted out, also filed an application dated 31st October, 1967 seeking amendment of the memorandum of the grounds of revision by adding a ground to the effect that without a valid notice under section 106, T. P. Act, the eviction application was not maintainable. At the bottom of this application, there is a note that if no revision is held to lie, then the same may be treated as a writ petition.

( 5 ) SHRI Bikramjit Nayar, the learned counsel for Ram Kumar has cited the decision in Pokay Mal v. Prem Nath, in which D. K. Mahajan, J. held that an order refusing to set aside an ex Parte order is appealable and distinguished the decision in the case of South Asia Industries on the ground that in the earlier case it had been held as a fact by Gosain, J. that the impugned order appealed against was not an order under the Rent Act. Dulat and S K Kapur JJ. in The Central Bank of India Ltd. , v. Gokal Chand, considered the conflict in the decisions of the Punjab High Court and following the decision of the Supreme Court in Shankarlal Aggarwala v. Shankarlal Poddar, laid down that an order finally deciding the dispute between the parties or depriving a party of a substantial and important right would be appealable. An order declining to issue a commission was, however, considered to be an order merely of a procedural nature not affecting the rights and liabilities of a party and, therefore, not appealable.

( 6 ) ASSUMING, as urged by Shri Bikramjit Nayar that the impugned order of the Rent Conroller dated 12th, April, 1962 was appealable undersection 38 of the Delhi Rent Control Act, the order of the Rent Control Tribunal dated 1st December 1962 dismissing the appeal against the order dated 12th. April, 1902 on the ground that no appeal was competent under section 38 of the Delhi Rent Control Act must also, in my view, b3 open to