Skip to content


Chander Mohan Mittal Vs. Bihari Lal Gupta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 2013 of 1984
Judge
Reported inAIR1985P& H226
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 15 and 15(1); Code of Civil Procedure (CPC), 1908 - Order 43, Rule 1
AppellantChander Mohan Mittal
RespondentBihari Lal Gupta
Cases ReferredDaya Chand Hardayal v. Bir Chand
Excerpt:
.....of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order.order1. order for ex parte proceedings against the tenant passed by the rent controller was set aside by him vide order dated oct. 27, 1983. dissatisfied with the same, the landlord bihari lal gupta, filed an appeal before the appellate authority. an objection was raised on behalf of the tenant that the appeal against the said order of the rent controller was not maintainable and that the landlord could only assail the impugned order passed by the rent controller, in the high court in revision. in support of the contention, reliance was placed on bikramjit singh paul v. jaswant singh, (1977) 2 rent l. r. 363 where it was held that an order refusing to set aside ex-parte decree entitles an aggrieved party to maintain a revision and not an appeal. reliance was also placed on the full bench.....
Judgment:
ORDER

1. Order for ex parte proceedings against the tenant passed by the Rent Controller was set aside by him vide order dated Oct. 27, 1983. Dissatisfied with the same, the landlord Bihari Lal Gupta, filed an appeal before the Appellate Authority. An objection was raised on behalf of the tenant that the appeal against the said order of the Rent Controller was not maintainable and that the landlord could only assail the impugned order passed by the Rent Controller, in the High Court in revision. In support of the contention, reliance was placed on Bikramjit Singh Paul v. Jaswant Singh, (1977) 2 Rent L. R. 363 where it was held that an order refusing to set aside ex-parte decree entitles an aggrieved party to maintain a revision and not an appeal. Reliance was also placed on the Full Bench judgment off this Court in Daya Chand Hardayal v. Bir Chand, AIR 1983 Punj and Har 356. However, the Appellate Authority distinguished the same on the ground that under the notification issued by the Union Territory, Chandigarh Administration, vide No. 4612-LD-72/6843 dated Nov. 25, 1972, the District Judge, Chandigarh, had been invested with the powers of the Appellate Authority under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act). According to the Appellate Authority S. 15(1)(b) of the Act inter alia provided that any person aggrieved by an order passed by the Controller may, within 15 days from the date of such order, prefer, in writing, an appeal to the Appellate Authority, having jurisdiction. Thus, according to it, the cumulative effect of the provisions of S. 15, and the notification issued by the Union Territory Administration, Chandigarh, dated Nov. 25, 1972, mentioned above, was that all the orders passed by the Rent Controller under the Act, were appealable hence it was held that the appeal was maintainable against the impugned order. Ultimately, the appeal was accepted and the impugned order of the Rent Controller setting aside the order proceeding ex parte against the tenant was set aside. Dissatisfied with the same, the tenant has filed this revision petition in this Court.

2. The learned counsel for the petitioner contended that in view of the Full Bench judgment of this Court in Daya Chand Hardayal's case (supra), no appeal against the order of the Rent Controller setting aside the ex parte proceedings against the tenant was maintainable. According to the learned counsel, even under the Civil P. C. (hereinafter called the Code), such an order was not appealable under O. XLIII R. 1. On the other hand, the learned counsel for the landlord-respondent submitted that the above said Full Bench Judgment of this Court, was distinguishable as there was no notification as regards the Union Territory of Chandigarh authorising the Appellate Authority to hear appeals only against the orders passed by the Rent Controllers under Ss. 4, 10, 12 and 13 of the Act, as was provided vide Punjab Government notification dated Apr. 14, 1947. Thus, argued the learned counsel, in the absence of any such notification, any order passed by the Rent Controller was appealable under S. 15 of the Act. The learned counsel specifically pointed out that under S. 15(1)(b) of the Act, any person aggrieved by 'an order' passed by the Rent Controller may prefer an appeal to the Appellate Authority having jurisdiction. Since the order dated Oct. 27, 1983, setting aside the ex parte proceedings was passed by the Rent Controller under the Act, the same was appealable under S. 15(1)(b). According to the learned counsel in the absence of any notification of the nature as issued by the Punjab Government vide notification dated Apr. 14, 1947, the Appellate Authority was competent to hear the appeals in the Union Territory of Chandigarh against any order passed by the Rent Controller.

3. After hearing the learned counsel for the parties, I find force in the contention raised on behalf of the petitioner.

4. It is true that it has been observed in paragraph 16 of the Full Bench judgment of this Court in Daya Chand Hardayal's Case (AIR 1983 Punj & Har 356 at p. 363) (supra), as follows:

'On a true perspective of the legislative background, the language of the Act and in particular of the relevant notifications, I would hold that Notification No. S.O./71/HA-II/73/S-15/78, dated May 8, 1978, is confined only to the forum for the appellate jurisdiction and in no way affects the classes of cases which alone had been earlier made appealable by Notification No. 1562-CR 47/9228 dated 14-4-1947, which continues to hold the field. Thereunder, the orders made by the Rent Controller under Ss. 4, 10, 12 and 13 of the Act alone are appealable. The answer to the question posed at the outset has thus to be rendered in the negative'.

but it could not be successfully argued on behalf of the respondent that in the absence of any such notification, every order passed by the Rent Controller was appealable. Section 15(1)(b) of the Act provides that any person aggrieved by on order passed by the Controller may prefer an appeal, but it does not mean that it includes any order of any nature which the Rent Controller may pass while deciding an ejectment application under the Act. Setting aside the ex parte proceedings is inherent in the Rent Controller and it was in the exercise of that power that the order proceeding ex parte against the tenant was set aside. It is the common case of the parties that such an order was not appealable under the Code. Thus, while the Rent Controller exercises the inherent power and not the powers under the Act, then, it could not be held that any order itself passed by the Rent Controller becomes appealable under S. 15(1)(b) of the Act. An appeal is contemplated against an order passed by the Controller. The term 'Controller' under S. 2(b) of the Act means, any person who is appointed by the State Government to perform the functions of a Controller under the Act. By no stretch of imagination, it can be said that the order setting aside ex parte proceedings against the tenant was passed by the Rent Controller under the Act. As observed earlier, such an order was passed by him in the exercise of his inherent powers and, therefore, no appeal as such was competent against such an order. The only remedy against such an order was to file a revision to this Court under S. 15(5) of the Act, which contemplates that the High Court may at any time call and examine the records relating to 'any order' passed or 'proceedings taken', under the Act. Thus, distinction itself has been made under S. 15(1)(b) and 15(5) of the Act. Section 15(10(b) contemplates an order passed by the Rent Controller whereas S. 15(5) contemplates that the High Court may, at any time, on the application of any aggrieved part or on its own motion, call and examine the records relating to 'any order' passed or 'proceedings taken' under the Act. In this behalf the ratio of the judgment of this Court in Bikramjit Singh Paul's case (1977 (2) Rent. LR 363) (supra), is relevant wherein the order of the Rent Controller refusing to set aside the ex parte order for ejectment of the tenant was challegned in revision in this Court. Therein, it was held that the legal position, therefore, is that against an order passed by the Rent Controller refusing to set aside an ex parte ejectment order no appeal lies before the Appellate Authority and only a revision against such an order lay to the High Court against that order under S. 15(5) of the Act. It may be pointed out that under the Code, an order refusing to set aside the ex parte decree is appealable under O. XLIII R. 1 of the Code, but even then, the order setting aside the ex parte proceedings against the tenant having not been passed by the Controller as such was not appealable under the Act. Viewed from any angle, it could not be contended that 'any order' passed by the Controller while taking proceedings under the Act, is appealable under S. 15(1)(b) of the Act even if it be assumed that there was no specific notification applicable to the Union Territory of Chandigarh specifically providing that appeals will be laid against the orders of the Rent Controllers under Ss. 4, 10, 12 and 13 of the Act, before the Appellate Authority.

5. In this view of the matter, this petition succeeds and is allowed. The order of the Appellate Authority is set aside and that of the Rent Controller setting aside the ex parte proceedings against the tenant, dated Oct. 27, 1983, is restored with no order as to costs. However, the parties have been directed to appear before the Rent Controller on Mar, 15, 1985. Since the ejectment of the tenant is being claimed on the ground of personal necessity, it is directed that the hearing of the ejectment application be expedited.

6. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //