B. C. MISRA, J.

( 1 ) THIS S. A. O. has been filed by the legal representatives of the tenant against

appellate order of Rent Control Tribunal dt. 23. 1. 73 by which appeal has been

dismissed and order of Additional Controller dt. 24. 9. 70 striking off the defence of

the tenant under sub-section (7) section 15 of thehas been affirmed.

( 2 ) THE premises in dispute are situate in 60, Daryaganj, Delhi, and were let out

on a rent of Rs. 100. 00 per month. On 16th March, 1964 the respondent landlady

instituted a petition against Kundan Lal tenant, (the predecessor in-interest of the

appellants) on the ground of unlawful subletting being specified in clause (b) of the

proviso to sub-section (1) of Section 14 of the. On 23rd August, 1965 the

respondent landlady filed an application under Section 15 (2) of thepraying for

an order to the tenant to deposit arrears of rent and future rent. On 24th

September, 1965 the Controller passed the requisite order under section 15 (2) of

the. praying for an order to the tenant to deposit arrears of rent and future rent.

On 24th September, 1965 the Controller passed the requisite order under section 15

(2) of the. This order was passed against the legal representatives of the tenant

who are appellants before me. It directed them to pay or deposit arrears of rent at

the rate of Rs. 100. 00 per month calculated from 1st March, 1964 within a period of

one month and thereafter continue to pay monthly rent at the said rate within 15

days of its becoming due. It is not disputed that the appellants deposited the rent

for some time in compliance with the said order.

( 3 ) HOWEVER, on 17th February, 1966 the main petition for eviction was

dismissed in default of appearance of the respondent landlady and an application

filed for restoration was dismissed by the Additional Controller. Feeling aggrieved,

the landlady filed an appeal before the Rent Control Tribunal and by order dated 5th

February, 1969 the appeal was allowed and the main petition for eviction was

restored to its original number and directed to be heard according to law.

( 4 ) THE application for striking off the defence, which has given rise to the present

appeal was filed by the respondent land lady on 18th February, 1970 on the

allegation that the appellants had committed default in payment of rent for months

of December, 1969 and January, 1970 and their defence be struck off. Mr. Jaspal

Singh. A. C. found that the rent for the month of April, 1970 had also not been paid

and so by order dated 24th September, 1970 he struck off the defence of the

appellants under Section 15 (7) of the. An appeal against the same has been

dismissed by the order assailed before me.

( 5 ) THE material facts of the case have not been disputed before me. A question of

law of some importance has been raised by Mr. Bhargava, counsel for the

appellants. It is this : On the dismissal of the main petition for eviction in default of

appearance on 17th February, 1966 the interlocutory order dated 25th September,

1965 passed under Section 15 (2) of thehad lapsed and that the same did not

revive on the restoration of the petition (on 5th February, 1969) and that it was

incumbent on the Controller to pass another order under Section 15 (2) of theif

he was so pleased; and since the previous order was not in operation, the appellant

tenants had not committed any default and consequently the order striking off

defence was without jurisdiction. This submission has not prevailed with the Rent

Control Tribunal, but it has been reiterated in the appeal before me.

( 6 ) I have examined the matter carefully and am of the view that there is no

substance in the contention of Mr. Bhargava, counsel for the appellants. The

procedure prescribed for trial of the eviction petition before the Controller has been

laid down by section 37 of theand he has been directed to follow as far as may

be the practice and procedure of a court of small causes, including the recording of

evidence while holding enquiry in any proceedings under the. The statutory rule

23 framed under the has laid down that in deciding any question relating to the

procedure not specially provided by the and the rules, the Controller and the

Rent Control Tribunal shall as far as possible be guided by the provisions contained

in the CPC. In the there is nothing inconsistent with the rules of the Civil

Procedure Code with regard to the dismissal of the petition in default of appearance

and its restoration and the results and effect of restoration. Accordingly, the

provisions of the Civil Procedure Code govern the case.

( 7 ) UNDER Order 9, Rule 8 of the Code where the defendant appears and the

plaintiff does not appear (when the suit is called on for hearing), the court is

required to make an order that the suit be dismissed. Under Rule 9, where a suit

has been so dismissed, plaintiff may apply to have the dismissal set aside and if he

satisfies the Court that there was sufficient cause for his non appearance when the

suit was called on for hearing the court shall make an order setting aside the

dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a

day for proceeding with the suit. It is, therefore, obvious that on setting the

dismissal aside, the court has to appoint a day for proceeding with the suit and not

for trying the suit de now. This indicates that the further proceedings in the suit

have to start from the stage and point where they were pending before the suit was

dismissed and there is no requirement of law that upon such restoration the entire

proceedings must be reached again. Consequently on the restoration of a dismissed

suit, all the previous proceedings and the interim orders revive and do not requir a

fresh order to give them vigour. In this view, I find support from a decision of the

High Court of Madras reported as. Vavvalla- Veeraswami v. Pulim Ramanna. AIR

1935 Made ras 365 where it has been observed that where an order dismissing a

suit for default was set aside on an application for that purpose, the suit remained

as it was on the day when it was dismissed and all proceedings taken up to that

date must be deemed to be in force when the dismissal was set aside. High Court of

Patna in Bankam Chandra and others V. Chandi Prasad AI R 1956 Patna 271, also

lays down that once a suit or appeal dismissed for default was restored by the order

of the court, all ancillary orders passed in the suit or appeal before its dismissal also

revive and operate since that date with all their legal implications. The High Court of

Allahabad in Babu v. Dewan Singh AIR 1952 All. 749 [LQ/AllHC/1952/83] , also supports the same view.

It has been observed that the effect of the restoration was the same as if there

were no dismissal of the suit and only the order of dismissal is set aside and all

pending proceedings and orders were revived including the order that the suit was

to proceed ex parte against the applicant and on restoration the parties were in the

same position in which it was just before the dismissal. In Karora Singh and others

v. Babu Ram AIR 1952 Pepsu 22, the view taken was that all proceedings will be

deemed to have been revived and to have remained in force when the dismissal was

set aside. It has been brought to my notice that a D. B. of this court (Hardyal Hardy

and M. R. A. Ansari JJ) has followed the view of the High Courts of Pepsu and

Allahabad in deciding in Welcome India Trading Co. v. Western India Match Co. FAO

(OS) 86 of 1970 decided on 6th April, 1971 an appeal from an order of Prithvi Ra.

dated 10th November, 1970 who had taken the same view.

( 8 ) A contrary view has, however, have been taken in a number of decisions,

which have been cited by the learned counsel for the appellant. These cases are

Sham Lal v. Ram Chand 1974 RLR (Note) 13, Pindi v. U. Thaw Ma AIR 1931

Rangoon 281, Balraji Chettiar v. Masila mani Pillai, MR 1930 Madras 514 D.

Manackjee v. R. M. N. Chettyar Firm, AIR 1927 Rangoon 310 Gangappa v.

Boregowda AIR 1955 Mysore 91, Dular Singh v. Ram Chander AIR 1934 Allahabad

165, Silesh Chandra Dutta v. Joy Chandra Roy AIR 1925 Calcutta 1974 Seethai

Ammal v. K. Narayna Ayyanger, AIR 1928 Madras 976, Khushi Ram and another v.

(Firm) Mukat Behari Lal Tej Pal AIR 1147 Lahore 718, Ranchhod Lodha v. Madhabji

Kanji 1974 RCR 12, Kedar Nath v. Mohani, Devi, J974 RCR 118 and Hari Chand v.

Nandlal 1972 RCR 387. However, all these cases deal with revival of attachments

before judgment and it has been held that on a dismissal of the suit, the attachment

effected before judgment ceased and if it were intended to continue the same after

restoration of the suit, a fresh order was necessary to be passed. This view has

been adopted on a construction of specific provision contained in rule 9 of Order

38ofthecpc which reads as follows. "9. Where an order is made for attachment

before Judgement the court shall order the attachment to be withdrawn when the

defendant furnishes the security required, together with security for the costs of the

attachment, or when the suit is dismissed".

( 9 ) CONSTRUING the aforesaid provisions, these decisions have held that on the

dismissal of the suit, even if it be for default of appearance, the attachment before

judgment has ceased under Rule 9. I do not need to express any opinion on the

correctness of the said decisions, since the case before me does not relate to

cessation of an order for attachment. Even in cases of attachment where Rule 9 of

the Code is not specifically attracted, its principle has not been applied on the other

hand, it has been held that the interlocutory orders revive. In Pratap Chandra Gope

v. Sarat Chandra AIR 1931 Cal. 101, a Division Bench considered the case where an

objection filed under Order 21 Rule 58 was allowed and the attachment of the

property was released under Rule 60 of Order 21 which was followed by a

declaratory suit under Rule 63. Sir Asutosh Mookerjee Acting Chief Justice speaking

for the court observed that no doubt the effect of an order under Order 21 Rule 60

allowing a claim was to make it obligatory on the court to release the property from

attachment, still the order of release was only provisional and was liable to be set

aside by a regular suit and it had been held that the order for release did not put an

end to the attachment so as to leave the claimant free to deal with the property as

he liked. . . . . . . . . if a suit was brought by the decree- holder to establish his right

to attach the property and a decree was passed in his favour, the effect of the

decree was to set aside the order of release and to maintain uninterrupted the

attachment originally made. Therefore, the private transfer of the property by the

claimant, though made after an order under rule 60 releasing the property from

attachment would be void under S. 64 of the Code. The Bench quoted with approval

an earlier decision of the High Court where it had been observed that the effect of

the declaratory suit on the attachment was to set aside the order of release which

had been made, and therefore to make the property still subject to attachment, to

restore the state of things that had been disturbed by the order of release. Their

Lordships also cited a number of authorities of the High Court of Bombay, Calcutta,

Allahabad and Madras. In this decision they also observed that a different rule had

been adopted with regard to attachment before judgment in view of rule 9 of Order

38. The same view has been taken by the High Court of Madras in Chunduru Rama

chandrayya v. Chunduru Nageswara Rao AIR 1944 Madras 126 where the court

observed that an attachment before judgment raised on a claim by a third party

being allowed would revive if a suit under Order 21 Rule 63 by the decree-holder

was decreed in favour of the decree-holder in the first court or on appeal. In

Annapurna Patranis case, AIR. 1950. Mad. a Division Bench of the High Court of

Madras observed that where in execution of a decree property was attached, but the

petition for execution was dismissed for default and on appeal the order of dismissal

for default was set aside, the effect of the appellate order was to restore the order

attaching property and the trial court would have to proceed with the execution

application from the statge at which it had interrupted it by dismissing it for default.

The appellate order restoring attachment would relate back to the date when the

attachment was first made and would render invalid any attachment before

judgment, the principle of rule 9 has not been extended beyond the express words.

In Daggupati Nayudama v. Saif Syyaraji Dharmachand Kettuyar AIR 1943 Madras

515 the court observed that the moment a review was allowed the decree already

passed was restored to file and with the restoration of the suit all ancillary orders

also get restored and the decree passed subsequently was the decree of trial court

itself. Similarly in Thampi Muhammad Abdulkhadhir Vi Padmanabha Pillaj

Parameswaran Pillai, AIR 1952 Travancore-Cochin 414 a Full Bench observed that

where an attachment before judgment which ceased to be in force with the

dismissal of the suit would revive when the decree dismissing the suit was

subsequently reversed by the same court or by a superior court and this revival

would be in force from the date on which the attachment before judgment was

effected.

( 10 ) IN my opinion, a consideration of the aforesaid authorities leaves no room for

doubt that the principle of Rule 9 contained in Order 38 which has been held as

applicable to attachments before judgment does not apply to other orders, where no

such specific provision exists. As a result, the interlocutory orders which terminate

on the decision of the suit on its dismissal in default will revive on the setting aside

of the dismissal either by the same court or by a superior court, since the legal

effect of setting aside is to restore the proceedings to the same stage and point at

which they were pending immediately before they were interrupted by the dismissal.

Any other construction would reduce the proceedings of the court to a mockery,

because if the submission of the appellant were correct, it would logically follow that

every time the suit is dismissed in default and restored and for that matter an ex

parte decree or order passed and set aside, the fresh proceeding must start ever

again including the passing of orders for issue of notice to the non-applicant

defendants who had been proceeded ex parte, or orders closing the evidence or

disallowing or allowing a commission or any question in examination of a witness.

Such a result is surely not intended by the provisions and principles of law.

( 11 ) MY conclusion, therefore, is that on the restoration of a petition for eviction

(which has been dismissed in default) either by the Controller or by the appellate

Tribunal, the interlocutory orders passed before the dismissal of the petition under

section 15 (2) of thewould revive and the proceedings would commence from

the stage at which they were pending before the dismissal. Consequently. the

tenants are bound to comply with the said order and cannot contend that it had

lapsed and needed to be passed again. It may, however be clarified that during the

period the eviction petition remained dismissed until it was restored, the operation

of the interlocutory order would remain suspended and any default alleged to have

been committed by the tenants during the said period will not render them liable to

any penalties attaching to non-compliance with the said order. Nevertheless no

sooner than the petition is restored, the interim order revives and the tenant must

deposit all arrears of rent then due and refrain from committing any further default

in compliance with the order except at his peril. The Rent Control Tribunal in the

impugned order has taken good care of this point and the appellants had not been

penalised for any default committed by them during the period occurring between

the dismissal of the petition and its restoration under the orders of the appellate

Tribunal. The defaults with which the appellants have been charged were those

which had been committed by them long after the main petition for eviction had

been restored. The appellants have, therefore, clearly violated the terms of the

order passed under section 15 (2) of the.

( 12 ) UNDER Section 15 (7) of the Act, it was discretionary with the Controller

whether or not to strike off the defence and in the facts and circumstances of the

case he thought fit to strike off the defence of the appellants. His order has been

affirmed by the Rent Control Tribunal in the appellate order. In second appeal under

the, it is beyond the jurisdiction of this court to interfere with the exercise. of

discretion by the Courts below who have exerised it according to law. The impugned

order does not call for interference. There is no force in the appeal and the same is

dismissed. But. in the circumstances of the case, the parties will bear their

respective costs.