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Zakeria Suleman Vs. the Collector, Yeotmal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appn. Nos. 383 and 384 of 1960
Judge
Reported inAIR1963Bom233; (1962)64BOMLR483; ILR1962Bom441
ActsCode of Civil Procedure (CPC), 1908 - Sections 151; Central Provinces and Berar Letting of Houses and Rent Control Order, 1949; Statute Law
AppellantZakeria Suleman
RespondentThe Collector, Yeotmal and ors.
Appellant AdvocateB.R. Mandlekar and ;M.Q. Qazi, Advs.
Respondent AdvocateV.R. Manohar, Adv.
Excerpt:
central provinces and berar letting of houses and rent control order, 1949. clause 13(3) - whether rent controller can dismiss application under clause 13(3) for default and restore it to file.;under the central provinces and berar letting of houses and rent control order, 1949, the rent controller has the power to dismiss for default an application of a landlord under clause 13(3) of the order and to restore the application to file if he is satisfied that good cause exists for such restoration. as to the good cause the rent controller will have to consider the evidence and the circumstances in each case and decide for himself. the power must be exercised only for good cause and after the usual opportunity to both the sides to represent their case is given. - - but, i further feel that,.....kotval, j.1. these applications give rise to a common question whether the rent controller under the central provinces and berar letting of houses and rent control order, 1949, has the power under clause 13 to dismiss for default an application of landlord for obtaining permission to eject a tenant and whether he has the power to restore that application to file.2. the landlord in both these applications is the petitioner haji zakeria suleman of yeotmal. the tenant in s. c. a. 383 of 1960 is fatmabi wife of hasan ali and in s. c. a. 384 of 1960 abdul hussain son of haji abdul ali. the litigation between the parties has been going on since 11-10-1956 when the landlord originally presented his applications for permission to eject the tenant in both the cases. with the chequered history of.....
Judgment:

Kotval, J.

1. These applications give rise to a common Question whether the Rent Controller under the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, has the power under Clause 13 to dismiss for default an application of landlord for obtaining permission to eject a tenant and whether he has the power to restore that application to file.

2. The landlord in both these applications is the petitioner Haji Zakeria Suleman of Yeotmal. The tenant in S. C. A. 383 of 1960 is Fatmabi wife of Hasan Ali and in S. C. A. 384 of 1960 Abdul Hussain son of Haji Abdul Ali. The litigation between the parties has been going on since 11-10-1956 when the landlord originally presented his applications for permission to eject the tenant in both the cases. With the chequered history of this litigation we are not concerned. The matter had previously come before this Court in Special Civil Application No. 127 of 1959. The Landlord's applications had been dismissed without consideration of the merits and a Division Bench of this Court ordered that the applications for restoration filed by the landlord in each case shall go back to the Rent Controller, Yeotmal, to be disposed of according to law. Before the Division Bench a question was raised as to the power of the Rent Controller to restore, but the Division Bench kept that question open by observing 'it is not necessary for purposes of these applications to express any opinion as to the tenability or otherwise of the applications filed by the landlords before the Rent Controller, Yeotmal, for restoration of their original applications which were dismissed for default'.

3. When the matter went back to the Rent Controller, the question whether he had the power to restore and therefore, also the initial power to dismiss for default was raised before him. The view which the Rent Controller took may he expressed in his own words:

'However, I am of the opinion that all the Courts have inherent powers to dismiss any application if the applicant fails to appear on any fixed date because, in that case, it can be presumed that the (applicant) does not want to prosecute his application further. But, I further feel that, no Court would like to ignore the principles of equity. It any application is dismissed in default, it is quite likely that the applicant could not remain present tor unavoidable reasons or for other bona fide reasons. In such eases, he can certainly apply to the Court for setting aside the order of dismissal. And if the Court is satisfied about his bona fides, it has inherent powers to set aside the order of dismissal passed by it.'

The tenant in each case went up in appeal to the Collector, Yeotmal and the appellate authority reversed the decision. The appellate authority held that the Rent Controller could not have dismissed the cases in default as there was no provision in the Rent Control Order for dismissal for default. By the same line of reasoning he also held that there was no provision for restoring to file a case dismissed in default. He also held that 'the Rent Controller could not invoke inherent powers to set aside the order which indirectly would have the effect of reviewing his order for again there were no powers with him in the order ibid.' He therefore held in both the cases that 'the order of dismissal in default, as also one setting it aside were, therefore, not in accordance with the provisions of the order ibid.'

4. These orders are impugned in these petitions. Now, we may say at once that we are in agreement With the view taken by the appellate authority that there is no inherent power in the Rent Controller or in the Rent Control Authorities to dismiss an application for default or to restore it. Inherent power can only he implied in the Civil Courts having general jurisdiction but where, as here, special authorities are constituted under a special statute and for special object, it is not possible to imply inherent powers in them. We must turn to the statute itself to find a power either in its express terms or by necessary implication. There is no express provision in the Rent Control Order permitting the Rent Controller or the Appellate Authority to dismiss for default or to restore to file an application or appeal. But these authorities are specially constituted for a specific purpose and for a special object. The objective as the preamble of the enactment itself indicates is 'regulating the letting and subletting of accommodation and other ancillary matters' specified in the Act. This is clear from the parent Act under which the Rent Control order has been promulgated. Pursuant to his objective, the Rent Controller has been given permission under Clause 13 (3) of the Order to hear and decide applications for permission to eject a tenant upon the ground mentioned in Sub-clause (3). In the discharge of his functions under Sub-clause (3) the Rent Controller has to satisfy himself that one or more of the grounds mentioned exist and in that event he 'shall grant the landlord permission to give notice to determine the lease as required by Sub-clause (1)'. Now, in the discharge of this function the Rent Controller no doubt acts in a quasi-judicial manner. He normally hears both the parties, gets their statements, records evidence and hears arguments of counsel. What then is to happen if one or the other of the parties with the avowed object of delaying or defeating the further progress in an application before the Rent Controller and thereby delaying or defeating the very purpose of the statute decides not to put in appearance? It is surely not to be suggested that the Rent Controller is powerless in a case of this kind.

It seems to us that in order to facilitate and further the beneficient purposes of the enactment, even though no such power can be found in the express provision of the statute, we must by necessary implication hold that such a power exists. The rule in matters of this Kind is clear.

If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the Courts are at liberty to infer that the statute by implication empowers that detail be carried out,' (Craies on Statute Law: 5th edition; page 105).

That is precisely the case here. In the discharge of his functions to decide an application for permission to determine a tenancy, the Rent Controller would in conceivable cases find himself absolutely helpless if a recalcitrant party decides at his will to remain absent or not to carry out any particular direction of the Rent Controller in spite of repeated orders. It seems to us that in such circumstances, we must hold that a power to dismiss the application for default or for non-compliance of orders is absolutely essential. Without implying such a power we thinkthat the function of the Rent Controller would be renderedlargely ineffective, if not impossible, in conceivable cases.We would therefore hold that the Rent Controller has thepower to dismiss for default an application of a landlordunder Clause 13 (3) of the Rent Control Order and to re-store the application to file if he is satisfied that goodcause exists for such restoration. Of course, as to the goodcause the Rent Controller will have to consider the evidenceand the circumstances in each case and decide for himself.The power must be exercised only for good cause and afterthe usual opportunity to both the sides to represent theircase, is given.

5. Upon this view, Mr. Mandlekar has further urged that we should send these matters back either to the appellate authority or the Rent Controller to determine whether there was good cause for the landlord's default in these cases. Neither in the appeals preferred by the tenant in each case nor in the respective petitions before us had the tenant raised this question or denied that there was good cause for the restoration of the two applications which were dismissed for default. In the circumstances, therefore, we do not think that we are called upon to determine that question. That question was decided against the tenant by the Rent Controller who has specifically found in his order that he felt that there was sufficient reason for the absence of the landlord. That finding not having been challenged, we must accept that finding, Upon that view we hold, though for reasons different from the reasons which prevailed with the Rent Controller, that his order restoring the application to file was a correct order and the order of the Appellate Authority holding that he had no power to restore the applications to file was incorrect.

6. We confirm the orders of the authorities below inboth the cases and direct that the original applications ofthe landlord under Clause 13 shall now be heard and disposed of on the merits. Each party shall bear its owncosts,Petitions allowed.


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