The court clarified that an ex-parte decree can only be set aside if necessary to enable the defendant to contest the claim, and the absence of a defense justifies upholding the decree.

JUDGMENT

[VIA VIDEO CONFERENCING]

Rajiv Sahai Endlaw, J. This appeal was filed, impugning the order (dated 26th October, 2020 of the Commercial Court, North West District, Delhi, in Misc. D.J No. 223/2020 in CS (COMM) No. 77/2019) of dismissal of an application of the appellants/defendants under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) for setting aside of the ex parte decree dated 19th February, 2020 of ejectment of the appellants/defendants from immovable property (earlier in the tenancy of the appellants/defendants under the respondent/plaintiff on the terms and conditions contained in the registered lease deed between the parties) and for recovery from the appellants/defendants, of arrears of rent and mesne profits.

2. It was the case of the appellants/defendants, that they learnt of the ex-parte decree, only on receiving notice of the petition filed for execution thereof and were never served with the summons of the suit.

3. Notice of this appeal was ordered to be issued. However, finding (i) that none appeared for the appellants/defendants on 27th January, 2021 and on 1st February, 2021 and, (ii) that the appellants/defendants, when appeared, were not resisting delivery of possession and that the mesne profits decreed were only marginally above the agreed rent, when none appeared for the appellants/defendants on 9th February, 2021 also, the appeal was dismissed in default.

4. The appellants/defendants filed CM 11388/2021 for restoration of the appeal. The said application came up before us on 22nd March, 2021 but on which date the counsel for the appellants/defendants, when asked to argue on the appeal itself, sought adjournment. On 22nd March, 2021, inter alia the following order was passed:

"5. We have already recorded our observations in the order dated 9th February, 2021, though dismissing the appeal in default.

6. On enquiry, the counsel for the respondent states that possession has not been delivered, as yet.

7. We have enquired from the counsel for the appellants, whether has any objection to delivery of possession of the premises to the respondent.

8. The counsel for the appellants states that the appellants are not in possession. On enquiry, who else is in possession, the counsel has no answer. On further enquiry, whether there is any document of handing over of possession to the respondent, the counsel for the appellants states that though there is no such document, but there is an email.

9. The counsel for the respondent states that premises where the appellants were earlier running a Skoda showroom, are lying locked and the Executing Court has issued warrants of possession, giving opportunity to the appellants to remove their goods inside the premises, by 25th March, 2021.

10. The counsel for the appellants has no objection to the respondent breaking open the locks and doors on its own without waiting for the same to be done in execution and to enter into possession.

11. The respondent may accordingly so enter into vacant, peaceful and physical possession of the premises today itself and would be deemed to have been put in possession of the premises today, without prejudice to the rights and contentions of the parties.

12. Now, the counsel for the appellants states that the plant and machinery of the appellants are lying inside the premises and time be given to remove them.

13. The same exposes the falsity of the claim earlier being made by the appellants of not being in possession of the premises. Had the appellants been not i