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Davinder Nath Vs. Madan Gopal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1009 of 1976
Judge
Reported in(1977)79PLR238
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 13; Code of Civil Procedure (CPC), 1908 - Order 9, Rule 13
AppellantDavinder Nath
RespondentMadan Gopal
Cases ReferredDharam Pal v. Shri Bagicha Singh
Excerpt:
.....judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of..........judge, rohtak, he, by his order dated june 3, 1976(annexure p. 4) held that every subordinate judge in haryana had become functus officio so far as his powers as a rent controller are concerned on the appointment of rent controllers under the principal haryana act. he did not agree with the view expressed by the financial commissioner in two earlier decisions that the application had to be dealt with by the rent controller under the punjab act. he, therefore, returned the application to the tenant for presentation to the officer concerned. it was in the above-mentioned that the tenant was forced to knock at the door of this court to determine the correct legal forum in which his application for setting aside the ex parte order had to be dealt with and adjudicated upon. 3. mr. ran.....
Judgment:
ORDER

1. Madan Gopal (hereinafter called the landlord) filed a petition for eviction of Davinder Nath petitioner (to whom I will refer in this order as the tenant) under S. 13 of the East Punjab Urban Rent Restriction Act, 1949, which was decreed ex parte in favour of the landlord on Sept. 6, 1973. During the pendency of the petition for eviction before the Civil Court, the Haryana Urban (Control of Rent and Eviction) Act (Haryana Act NO. 11 of 1974) was passed and enforced with effect from April 27, 1973. The learned Senior Subordinate Judge was correct in continuing the proceedings which were pending before him as Rent Controller at the time of coming into force of the principal Haryana Act because of the requirements of the proviso to S. 24 of that Act. The relevant portion of S. 24 is quoted below:--

'The East Punjab Urban Rent Restriction Act, 1949(East Punjab Act No. 3 of 1949) is hereby repealed:

Provided that such repeal shall not affect any proceedings pending or order passed immediately before the commencement of this Act which shall be continued and disposed of or enforced as if the said Act had not been repealed. x x x'

The tenant made an application on October 26, 1973, for setting aside the ex parte order. While issuing notice of the same for Nov. 2, 1973, execution of the order for eviction was stayed by the Senior Subordinate Judge acting as Rent Controller on Oct. 27, 1973. During the pendency of the application for setting aside the ex parte order, the Haryana Urban (Control of Rent and Eviction) Amendment Act No. 4 of 1974, was passed and enforced with effect from Jan. 28, 1974. By S. 2 of the Amendment Act, the following was inserted as S. 20-A in the Principal Haryana Act:--

'20-A.-(1) Notwithstanding anything contained in any other provision of this Act:--

(a) all proceedings pending before Subordinate Judges appointed to perform the functions of the Controllers shall, from the date of coming into force of the Haryana Urban (Control of Rent and Eviction). Amendment Act, 1974, stand transferred to the Sub-Divisional Officers (Civil), appointed under cl.(b) of S. 2 to perform the functions of the controllers;

(b) an appeal from the order of the Subordinate Judge appointed to perform the functions of the Controller shall lie to the District Judge conferred with the powers of the appellate authority and a revision from the order of such appellate authority small lie to the High Court; and

(c) if any appeal from the order of the Subordinate Judge appointed to perform the functions of the Controller has been filed with the Deputy Commissioner conferred with the powers of appellate authority, or if any revision from the order of District Judge conferred with the powers of the appellate authority has been filed with the Financial Commissioner, the same shall stand transferred to the District Judge and the High Court respectively. (2) The proceedings transferred under sub-s. (1) shall be disposed of by the District Judge and the High Court as if the same were originally presented before them.'

2. Treating the application for setting aside the ex parte decree as a 'proceeding' under the Haryana Act the learned Senior Subordinate Judge transferred the case to the Sub--Divisional officer (Civil). By his order dated May 27, 1976, the Special Collector, Rohtak, who was the Sub-Divisional Officer, returned the application in question to the tenant for presentation to the Court competent to hear it on the ground that he had no jurisdiction to deal with it and it had to be dealt with by the Senior Subordinate Judge, who had passed the order for eviction. When the case went back to the Senior Subordinate Judge, Rohtak, he, by his order dated June 3, 1976(Annexure P. 4) held that every Subordinate Judge in Haryana had become functus officio so far as his powers as a Rent Controller are concerned on the appointment of Rent Controllers under the Principal Haryana Act. He did not agree with the view expressed by the Financial Commissioner in two earlier decisions that the application had to be dealt with by the Rent Controller under the Punjab Act. He, therefore, returned the application to the tenant for presentation to the officer concerned. It was in the above-mentioned that the tenant was forced to knock at the door of this Court to determine the correct legal forum in which his application for setting aside the ex parte order had to be dealt with and adjudicated upon.

3. Mr. Ran Rang, the learned counsel for the tenant, has referred to the two decisions of the Financial Commissioner on which the Sub-Divisional Officer (Civil) had relied for returning the case for presentation to the Court of the Senior Subordinate Judge. Both the decisions have been recorded by Shri V. P. Johar, Financial Commissioner, Haryana. In Smt. Parbati v. Hari Chand, 1976 Punj LJ 569(corresponding to 1975 RLR 391), an almost similar situation had arisen. An ex parte order had been passed by the Rent Controller under the Punjab Act before the coming into force of the Principal Haryana Act, but an application for setting aside the ex parte order had been made in June, 1973, after the coming into force of the Principal Haryana Act. The application had been returned by the Civil Court acting as Rent Controller for being presented to the Sub-Divisional Officer who dismissed the application on merits. The petition for revision of that order was allowed by the Financial Commissioner on the ground that the Sub-Divisional Officer (Civil) had no jurisdiction to deal with the application for setting aside the ex parte order passed by the Civil Court as Rent Controller and that it was the Court which had passed the ex parte decree which was to deal with and decide the application for setting it aside. The learned Financial Commissioner held that the effect of accepting the application for setting aside the decree passed by the Subordinate Judge acting as Rent Controller, would be to modify or set aside the order of the Civil Court and since S. 20-A provides for appeals and revisions against the orders passed by the Civil Court being taken up in the hierarchy of those Courts, the hearing by a Sub--Divisional Officer of an application for setting aside the ex parte decree passed by a Civil Court would be contrary to the spirit underlying S. 20-A. It was on the above basis that he held that the Sub--Divisional Officer (Civil) was not competent to entertain the application for setting aside the ex parte order passed by the Rent Controller under the Punjab Act. To the same effect is the judgment of the Financial Commissioner in Chhabil Dass v. Mange Ram, 1976 Punj LJ 570(corresponding to 1975 Rev LR 421). It was again held that if the Sub--Divisional Officer (Civil) were to set aside the order of the Civil Court the result would be that a judicial officer's decision would be liable to be set aside by an executive officer, which was something apparently repugnant to the spirit of cls. (b) and (c) of sub--s. (1) of S. 20--A of the Haryana Act. Counsel has also referred to the judgment of Sharma, J. in Dharam Pal v. Shri Bagicha Singh, 1975-77 Punj LR 737. That does not, however, appear to help either of the sides directly on the point in issue before me.

4. If the two orders of the Financial Commissioner are correct, the petition must, of course, succeed, but Mr. G. R. Majithia, the learned counsel for the landlord, has submitted that the Financial Commissioner was obviously in error in deciding the case according to what he thought the spirit of the provision instead of deciding it in accordance with the plain language of the section. He has submitted that if an application under O. 9, R. 13 of the Code of Civil Procedure, for setting aside an ex parte order is a 'proceeding' it has to be transferred by the Civil Court to the executive authority under clause (a) of S. 20--A (1), if the same was pending at the time of coming into force of the Haryana Act, as the said provision (S. 20--A (1)(a)) starts with a non obstante clause and overrides proviso to S. 24. Looked at from a strictly technical point of view, there is some force in the submission of Mr. Majithia. He does not contest the proposition that if S. 20--A had not been enacted, the application for setting aside the ex parte decree which had been filed before the coming into force of the Amending Act had also to be adjudicated upon by the Senior Subordinate Judge and very appeal or revision against the same had also to go to the District Judge and the High Court. His emphasis, however, is on the fact that S. 20--A (1)(a) was enacted as an exception to the rule contained in the proviso to S. 24 and the same must be given effect to. What actually happened after the Principal Haryana Act came into force was that whereas pending cases had to be decided by the Civil Court, appeals or revisions against them had to go to the executive authorities. It was felt that in view of the separation of the judiciary from the executive, it may not be very salutary to allow orders and decisions of Civil Courts being set aside by executive authorities. It was to avoid this kind of a situation that the Amending Act was passed. The official statement of objects and reasons for passing the Amending Act are contained in the Haryana Urban (Control of Rent and Eviction) Amendment Bill, 1974(published in the Haryana Government Gazette Extraordinary dated Jan. 2, 1974, at page 8) in the following words:--

'According to the provisions of the Haryana Urban (Control of Rent and Eviction) act, 1973, the Sub--Divisional Officers(Civil) and Deputy Commissioners have been appointed as Rent Controllers and appellate authority. Certain difficulties are being experienced in the disposal of the proceedings pending before the date of enforcement of the said Act, i.e., 27th April, 1973. The Punjab and Haryana High Court has drawn pointed attention in this behalf observing that it does not seem desirable on account of the separation of the Judiciary from the Executive that the appeals and revisions against the decision of Judicial Officers in respect of pending cases should be filed before or decided by the Executive Authorities.

The bill seeks to tide over these difficulties and to provide for these objects.' Once the objects and reasons for passing the Amending Act are kept in view, which is legally permissible, it is clear that the only object of enacting S. 20-A was that orders passed by Civil Courts are not subjected to the scrutiny of executive authorities. The two decisions of the Financial Commissioner, Haryana, are consistent with the scheme of the Amending Act judged in the light of the statement of objects and reasons for introducing the Bill which became the Amending Act.

5. From an overall consideration of all the aspects of the matter, it appears to me that the word 'proceeding' used in clause (a) of S. 20-A (1) of the Amending Act stands for 'proceedings under the Act' which would mean proceedings under the Haryana Act. An application for setting aside an order passed by the Senior Subordinate Judge in his capacity as Rent Controller is not envisaged by any provision in the Haryana Act That being so, such an application would not be covered by S. 20-A (1)(a) and would not be liable to transfer to the executive authorities under that provision. On the other hand, the expression 'proceedings pending or order passed immediately before the commencement of this Act' in the proviso to S. 24 of the Haryana Act, naturally refers to proceedings under the East Punjab Urban Rent Restriction Act. In this matter, it appears that while reconciling the proviso to S. 24 with clause (a) of S. 20-A (1) of the Act and judging in the light of aims and objects of the Amending Act, the view taken by the learned Financial Commissioner, Haryana, appears to me the only possible correct view in the circumstances of this case in so far as it relates to applications for setting aside ex parte orders passed by Civil Courts acting as Rent Controllers. That being so, I hold that the order of the Sub-Divisional Officer (Civil)(Special Collector, Rohtak), exercising powers of Rent Controller dated May 27, 1976, was correct and the order of the learned Senior Subordinate Judge, Rohtak, dated June 3, 1976(Annexure P. 4) is illegal and is liable to be set aside. The learned Senior Subordinate Judge has erroneously declined to exercise jurisdiction vested in him by law. It is his duty to re-entertain and decide the application of the tenant for setting aside the ex parte order for eviction passed by his Court.

6. Mr. Majithia, the learned counsel for the landlord, has lastly contended that one of the grounds on which the order for eviction was passed against the tenant was non-payment of rent and notwithstanding the fact that the execution of the order was stayed as long ago as in October, 1973, nothing has been paid by the tenant to the landlord on account of rent. This is a matter with which I am not concerned at this stage. I have, however, no doubt that if the landlord applies to the Senior Subordinate Judge, Rohtak (acting as Rent Collector) to vacate or modify the ex-parte order staying execution of the eviction order, he would make the continuance of the stay order conditional on the tenant paying up to the landlord (without prejudice to the rights claimed on behalf of both sides) or depositing the same in his Court, all arrears of rent and to continue to pay subsequent rent month by month. This kind of an order as already stated, will have to be obtained by the landlord from the Court of the Senior Subordinate Judge.

7. For the reasons already assigned. I allow this petition and in exercise of the powers vested in this Court under Article 227 of the Constitution, set aside and reverse the order of the Senior Subordinate Judge, Rohtak, dated June, 3, 1976(Annexure P. 4) and direct him to receive back, entertain, adjudicate upon and decide the application of the tenant for setting aside the ex-parte order for eviction (which had been passed by his Court on September 6, 1973) according to law. The matter has been hanging fire for an unduly long time. The learned Senior Subordinate Judge will, therefore, make every possible endeavour to dispose of the proceeding in question within three months. Parties have been directed to appear before the Senior Subordinate Judge, Rohtak, on February 14, 1977.

8. Petition allowed.


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