H.L. Anand, J.
1. This judgment would dispose of S. A. O. No. 280 and S. A.O. 354 of 1972, both of which assail a common order of the Rent Control Tribunal setting aside the order of eviction made by the Controller and remanding the case back to the Controller for decision in accordance with law. The only question posed for decision is as to whether an order made by the Controller under S. 15(1) of the Delhi Rent Control Act (for short, the Act), gets total immunity from legal challenge in case no appeal against it is filed.
2. This is how the question has arisen. In the course of proceedings for the eviction of the tenant on the ground of non' payment of rent in. spite of service of notice of demand, the Controller made an order under S. 15(1) of the Act in spite of a plea of the tenant denying the validity of the notice and disputing the quantum of liability. The tenant admittedly made default in compliance of the order in that the deposit was made after the expiry of the period within which the deposit was to be made in terms of the order. The plea of the tenant for condensation of delay was turned down and by the same order, the Controller directed the eviction of the tenant without going into the question as to the validity of the notice of demand and the alleged failure to comply with the terms of the notice. In the appeal against the order of eviction before the Rent Control Tribunal, the tenant sought to challenge the validity of the order made under S. 15(1) of the Act, but was not allowed to assail it on the ground that the tenant had failed to file an appeal against the order, and that the order having thus become 'final' could not be made a ground of attack in the appeal be- fore the Rent Control Tribunal. The Rent Control Tribunal, however, sustained the other plea of the tenant that an order of eviction could not be passed under Section 14(1)(a) of the Act unless the landlords established that the tenant had neither paid nor tendered the whole of the arrears of rent within the requisite period of service of the notice of demand in view of the dispute raised by the tenant with regard to the notice etc. and it was, thereforee, held that the order of eviction could not be made without recording evidence. Liberty was, however, reserved for the landlords to invoke Section 15(7) of the Act in the proceedings before the Controller. The order of eviction was accordingly set aside and the case was remanded to the Controller for decision according to law. The landlords and the tenant are both aggrieved by the order of the Rent Control Tribunal. S. A. 0. 280/72 is the tenant's Second Appeal while S. A. O. 354/72 is that of the landlords.
3. When the appeals came up for final hearing before a learned single Judge of this Court, the contention of the tenant with regard to his right to assail the order under S. 15(1) of the Act was reiterated in S. A. O. 280 of 1972, it was noticed that although the rival contention was reinforced by a decision of the Punjab High Court and following that a number of decisions of this Court, the correctness of the view taken in the decisions had been doubted by one of us, Anand, J., in the case of Parbhati v. Budho Devi 1973 R Lr 672 and that it would, thereforee, be proper that the matter was referred to a larger Bench. This is how both the appeals were placed before us for decision.
4. On behalf of the tenant, it was urged that an order under S. 15(1) of the Act was in the nature of interlocutory order: that the tenant was not bound to challenge the order in an appeal against it; and that by virtue of the provisions of See. 105 of the Civil P. C. and, in any event, the principle embodied in it, the tenant was entitled to assail the validity of such an order in an appeal against the final order of eviction, and that the Rent Control Tribunal was, thereforee, in error in holding to the contrary even though on the basis of a number of decisions of the Punjab High Court and of this Court. It was urged that the finality of orders made under the Act by virtue of the provisions of S. 43 of it was subject to any proceedings under the Act such as on appeal against the final order and with a view to defend such orders from any collateral challenge, and that the finality could not be extended so as to deprive the tenant of the right to assail the order under S. 15(1) of the Act in the appeal against the order of eviction. It was urged that there was nothing in the provision of S 43 of the Act which made the provision of S. 105 of the Civil P. C. and the principle under-lying it inapplicable to proceedings under the Act, and that the Punjab High Court, as indeed a number of learned single Judges of this Court, had taken the wrong view of the law in holding that by virtue of the provision of S. 43 of the Act, such an order if not assailed in an appeal against it, became final to the extent that it could not be challenged even in an appeal against the final order.
5. On behalf of the landlords, it was urged that on the peculiar scheme of the Act, the principle incorporated in S. 105 of the Civil P. C. could not be invoked, and that the consequential finality attaching to an order against which an appeal had not been filed gave total immunity to such an order from attack even in appeal under the Act against the final order of eviction. The exclusion of the principle incorporated in S. 105 of the Civil P. C. was sought to be justified not only with reference to the provisions of S. 43 of the Act, but also of S. 37 of the Act, which made the practice and procedure of a court of Small Causes applicable to proceedings under the Act. It was urged that by S. 7 of the Civil P. C., certain provisions of the Civil P. C., including S. 105, were made inapplicable to courts constituted under the Provincial Small Cause Courts Act. The contention was sought to be reinforced with reference to decision of the Punjab High Court in Durga Swaroop v. Murari Lal 1964 PLr 586 and a number of decisions of learned single Judges of this court in the cases of Smt. Urmila Rani v. Smt. Savitri Devi 1970 Ren Cr 763 ; L. T. Thadani v. Yogeshwar Dayal (1971) 7 DLt 275; Smt. Sanyukta Upal v. Vidya Parkash 1972 Ren Cr 168 and in the case of Hukam Chand v. Smt. Kaushalva Devi, S. A. 0. No. 131 of 1969 decided on 25-8-1972 (Delhi).
6. After hearing learned counsel for the parties, it appears to us that the contention urged on behalf of the landlords that the order of the Controller under S. 15(1) of the Act could not be assailed in the appeal against the final order of eviction because it had not been appealed against, and the decisions referred to above which have taken that view are based on a misconstruction of the provisions of S. 43 of the Act.
7. Section 38 of the Act confers a right of appeal from every order of the Controller made under the Act. Section 39 confers a limited right of second appeal. Section 43 provides for finality of orders and protects the orders made wider the Act from any collateral challenge. This is how the section runs:-
'43. Save as otherwise expressly provided in this Act, every order made by the Controller or an order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceedings.'
It has been held by the Supreme Court in the case of South Asia Industrial (P.) Ltd. v. S. B. Sarup Singh, : 2SCR756 that the expression 'final' in S. 43 connotes that an order passed on appeal under the Act is conclusive and no further appeal lay against it, and that the expression 'final' in the first part of S. 43 puts an end to a further appeal outside the Act. It was further observed that the Act was a self-contained one and the opening words of the section emphasized the fact that the finality of the orders could not be questioned by resorting to something outside the Act and that the second part of the section makes the final order immune from any collateral attack 'in any original suit, application or execution proceedings'. The finality provided in the section has, thereforee relevance to proceedings outside the Act but not those which are envisaged by the Act itself. It is a well settled principle that a litigant is not bound to challenge every interlocutory order that may be made in the course of proceedings and where an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay, an appeal was not taken, could be challenged in an appeal from a final decree or order and the only expectation was an order of rem and which should on a different footing. More than a century ago, Privy council recognised this principle in the case of Maharajah Moheshur Sing v. Bengal Government (1859) 7 Moo I.A. 283 when it was held that it was open to the appellate court which had not earlier considered the matter to investigate in an appeal from the final decision grievances of a party in respect of an interlocutory order. This is how the Privy Council dealt with the objection:-
'We are of opinion that this objection cannot be sustained. We are not aware of any law or regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting for ever the benefit of the consideration of the appellate court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of Justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities. We believe there have been very many cases before this Tribunal in which their Lordships have deemed it to be their duty to correct erroneous interlocutory orders, though not brought under their consideration until the whole cause had been decided, and brought hither by appeal for adjudication '
The principle was reaffirmed by the Privy council in Forbes v Ameeroonissa Begum 1866-10 Moo I.A 340 (PC) and later in the case of Sheonath v. Rantpath (1866) 10 Moo I.A 413 (PC). These decisions were approved by the Supreme Court in the case of Satyadhyan Ghosal v. Suit. Deorajin Debi. Air 1960 Sc 1941.This is how the matter was dealt with by the Supreme Court (at P. 945):-
'(13) There can be little doubt (about) the salutary effect of the rule as laid down In the above cases on the administration of justice. The very fact that in future litigation it will not be open to either of the parties to challenge the correctness of the decision on a matter finally decided in a past litigation makes it important that in the earlier litigation the decision must be final in the strict sense of the term. When a court has decided the matter it is certainly final as regards that court. Should it always be treated as final in later stages of the proceedings in a higher court which had not considered it at all merely on the ground that no appeal lay or no appeal was preferred As was pointed out by the Privy Council in Moheshur Singh's case 7 Moo I.A 283, the effect of the rule that at every stage of the litigation a decision not appealed from must be held to be finally decided even in respect of the superior courts, will put on every litigant against whom an interlocutory order is decided, the burden of running to the higher courts for redress of the grievances, even though it may very well be that though the interlocutory order is against him, the final order will be in his favor and so it may not be necessary for him to go to the appeal court at all. Apart from the inevitable delay in the progress of the litigation that such a rule would cause, the interests of the other party to the litigation would also generally suffer by such repeated recourse to the higher courts in respect of every interlocutory order alleged to have been wrongly made. It is in recognition of the importance of preventing this mischief that the Legislature included in the Civil P. C. from the very beginning a provision that in an appeal from a decree it will be open to a party to challenge, the correctness of any interlocutory, order which had not been appealed from but which has affected the decision of the case.'
8. It in interesting to notice that the principle propounded by the Privy Council is older than its legislative recognition in the Code of 1859, which contained a provision analogous to S. 105 of the Civil P. C. The Provision in S. 105 of the Civil P. C. that where a decree, was appealed from any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal did not, thereforee, introduce a new principle, but was a legislative recognition of this salutary principle enunciated by the Privy Council There is no reason why this principle should not apply to proceedings under the Act and there is nothing in the Provision of S. 43 of the Act or any other provision of it which may justify such an exclusion. True by virtue of sub-section (2) of S. 37 of the Act, the Controller shall, while holding an inquiry in any proceeding before him, follow 'as far, as may be the practice and procedure of a Court of Small Causes'. and there is no doubt that by virtue of S. 7 of the Civil P. C., the operation of Ss. 96 to 112, including S. 105 of the Civil P. C., have been excluded from the proceedings under the Provincial Small Cause Courts Act. This is, however, because these provisions relate to appeal and second appeal and there is no provision of an appeal or a second appeal against the decision of a Judge, Small Cause Court, but that is not so in the case of proceedings under the Act There would, thereforee, be no reason to exclude the operation of this salutary principle incorporated in S. 105 of the Civil P C. from proceedings under the Act.
9. Unfortunately, the learned single Judge of the Punjab High Court over looked this aspect of the matter in the case of Durga Swaroop (1964-66 Pun Lb 586) (supra). The decision is based on the assumption that the principles incorporated in S. 105 of the Civil P. C. would not be applicable because of a provision to the contrary in S. 43 of the Act The provisions of the section were, however, not analysed and I say so with respect. The later decisions of this Court by and large followed the decision of the Punjab High Court and the decisions of this Court that followed without a closer examination of the matter. None of these decisions, to our mind, represent the true legal position with respect.
10. It was not disputed before us that if the order of the Controller under Section 15(1) of the Act was open to challenge in the appeal before the Rent Control Tribunal, it must be set aside because it was made notwithstanding the plea set up by the tenant an to the validity of notice of demand and the liability to pay the rent by virtue of a long line of decision of this court.
11. In S. A. O. 354 of 1972, it was not disputed that even if an order under Section 15(1) of the Act was beyond challenge, the Controller was still bound to consider if the requirement of Section 14(1)(a) had been satisfied.
12. In the result, S. A. O. 280/72 succeeds and the other appeal fails. The order of the Controller under S. 15(1) is set aside. The matter is remanded to the Controller for decision of the question if the tenant is liable to be evicted. The tenant would have his costs in S. A. O. 280/72. There would be no costs in the other appeal.
13. Order Accordingly