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Ved Parkash Kapur Vs. Harish Chander Rastogi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 178D of 1965
Judge
Reported in3(1967)DLT341
ActsDelhi Rent Control Act, 1958 - Sections 2 and 38; Code of Civil Procedure (CPC), 1908 - Sections 115; Constitution of India - Article 227
AppellantVed Parkash Kapur
RespondentHarish Chander Rastogi and anr.
Advocates: M.L. Mehra and; K.R. Khanna, Advs.
Cases ReferredPokar Chand v. Prem Nath and
Excerpt:
tenancy - appellable orders - sections 2 and 38 of delhi rent control act, 1958, section 115 of code of civil procedure, 1908 and article 227 of constitution of india - order refusing to implead stranger as party to ejectment application and dismissing his application under order 1 rule 10 cannto be regarded as order which affects rights and liabilities of parties - tribunal rightly held that order passed by rent controller was nto appealable under section 38 - question of filing second appeal from order. - - observed as under :having considered all the judgments on the subject, i am of the opinion that the best guide for interpreting section 38 of the delhi rent control act, 1958, is provided by the decision of the supreme court in shankar lal aggarwal's case and every order made by..........out of an order made by the additional rent controller, delhi, and confirmed on appeal by the rent control tribunal, delhi, in an application under section 14 of the delhi rent control act, 1958, filed by shri harish chander against the firm j. n. mehra and brtohers for their eviction from certain office premises in mangal market, joghian colony, delhi on grounds of non-payment of rent, unauthorised subletting and substantial damage to the property. j. n. mehra and brtohers were sued through shri j. n mehra on the allegation that he was the sole proprietor of the firm j. n. mehra and brtohers and was thus the only tenant of the premises. the tenant did nto deposit the arrears of rent in accordance with the order passed under section 15 of the delhi rent control act. as a result, his.....
Judgment:

Hardy, J.

(1) This revision petition arises out of an order made by the Additional Rent Controller, Delhi, and confirmed on appeal by the Rent Control Tribunal, Delhi, in an application under section 14 of the Delhi Rent Control Act, 1958, filed by Shri Harish Chander against the firm J. N. Mehra and Brtohers for their eviction from certain office premises in Mangal Market, Joghian Colony, Delhi on grounds of non-payment of rent, unauthorised subletting and substantial damage to the property. J. N. Mehra and Brtohers were sued through Shri J. N Mehra on the allegation that he was the sole proprietor of the firm J. N. Mehra and Brtohers and was thus the only tenant of the premises. The tenant did nto deposit the arrears of rent in accordance with the order passed under section 15 of the Delhi Rent Control Act. As a result, his defense against ejectment was struck out. The appeal filed by the tenant against the order was also dismissed by the Tribunal. During the pendency of the application for eviction before the Rent Controller, the present petitioner Ved Parkash had filed an application under Order 1 rule 10 C. P. C. read with section 151 C. P. C. alleging that he too was in occupation of these premises with the consent of the landlord and was, thereforee, a necessary party to the proceedings. This application was dismissed by the Rent Controller. The petitioner thereupon filed an appeal against the aforesaid order of the Rent Controller before the Rent Control Tribunal, Delhi which too was dismissed on the ground that an order refusing to implead the appellant as a party to the ejectment application and dismissing his application under Order 1 rule 10 C P. C. is nto an order under the Delhi Rent Control Act and, thereforee, does nto fall within the ambit of section 38 of the said Act. The appeal was, thereforee, held to be incompetent.

(2) The petitioner has now come to this Court in revision against that order. A preliminary objection to the competency of the revision petition has been raised by the learned counsel appearing for the respondent-landlord on two grounds. It is contended in the first place, that the Rent Controller appointed under the Delhi Rent Control Act is nto a Court subordinate to the High Court, and, thereforee, no revision lies to the High Court against his orders. Reliance is placed in support of this argument on a Full Bench decision of the Punjab High Court in Pitman's Shorthand Accadamy v. B. Lila Ram & Sons and tohers. Secondly, it is contended that an order rejecting an application for being imp leaded as a party to the eviction petition is an order under the Delhi Rent Control Act, and is, thereforee, appealable. The remedy of the petitioner, if at all, lies in filing a second appeal in this Court and since an appeal under sub-section (2) of section 39 can lie only if it involves a substantial question of law, the present petition cannto be treated as a second appeal under the Act. I shall first deal with the secound ground of attack which runs counter to the argument that appears to have been urged on behalf of the respondent before the Rent Control Tribunal and which indeed forms the basis of the appellate order now sought to be revised by the petitioner. The Tribunal held that an order passed under Order 1 rule 10 C P. C. cannto be held to be an order under the Delhi Rent Control Act, and, thereforee, such an order does nto fall within the ambit of section 38 and no appeal is competent. The position taken by the learned counsel for the respondent-landlord before me, however, is that an appeal was competent before the Tribunal and, thereforee, no revision petition could be filed in this Court because section 39 provides for a second appeal.

(3) The question as to the kind of orders which can be treated as orders under the Act within the meaning of section 38 of the Delhi Rent Control Act, came up for consideration before a Division Bench of the Punjab High Court in the Central Bank of India v. Gokal Chand. After an exhaustive survey of the various authorities having a bearing on the question, Kapur, J. observed as under :-

'Having considered all the judgments on the subject, I am of the opinion that the best guide for interpreting section 38 of the Delhi Rent Control Act, 1958, is provided by the decision of the Supreme Court in Shankar Lal Aggarwal's case and every order made by the Rent Controller either under the express provisions of the Act or under the provisions of the Code of Civil Procedure incorporated into it by virtue of section 37(2) would be appealable provided such an order finally decides a dispute between the parties or deprives a party of a substantial and important right and is nto a mere formal or interlocutory order. In toher words, every such order would be ap- pealable except merely procedural orders or orders which do nto affect the rights and liabilities of the parties.'

In the course of his judgment Kapur J. also referred to a judgment of Khanna J. in SA0 201-B of 1963. Overseas Corporation Private Ltd. v. Faqir Chand. In that case, the Rent Controller rejected an application under 0. 1 rule 10 C. P. C and the Rent Control Tribunal took the view that the appeal against such an order was nto competent. Khanna J. upheld the order of the Tribunal and came to the conclusion that the order made by the Controller on an application under Order 1 rule 10 C. P. C. was nto one made under the Act and was, thereforee, nto appealable. Khanna J. distinguished the judgment of Mahajan J. in Pokar Chand v. Prem Nath and tohers, on the ground that in that case the appeal was against an order refusing to set aside an ex parte order of ejectment and such an order was appeallable under the Code of Civil Procedure also.

(4) The ratio of the above cited Bench decision of the Punjab High High Court is that whether or nto an order is appealable under the Code of Civil Procedure has nto much bearing on the scope of section 38 of the Delhi Rent Control Act. What really matters is the nature of the order and it is only that order which affects the rights and liabilities of the parties that is made appealable and mere procedural irregularities are nto intended to be made appealable.

(5) Viewed in this light, it can hardly be said that an order refusing to implead a stranger as a party to the ejectment application and dismissing his application under Order 1 rule 10 C. P. C. can be regarded as an order which affects the rights and liabilities of the parties It, thereforee, follows that the Tribunal rightly held that the order passed by the Rent Controller was nto appealable under section 38 of the Act. A fortiori there could be no question of filing a second appeal from that order to this Court.

(6) As regards the objection on the score of the Rent Controller and the Appellate Tribunal nto being civil Courts subordinate to the High Court, learned counsel for the respondent has referred to sections 35, 36, 37 and 38 of the Delhi Rent Control Act and has urged that subsection (2) of section 36, confers only some of the powers exercisable by a civil Court under the Code of Civil Procedure. He has further urged that the fact that under sub-section (2) of section 36, the Controller is deemed to be a civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure itself goes to show that it is nto a Civil Court but is merely deemed to be one. There is substance in this argument of the learned counsel. The Controller and the Tribunal are nto civil Courts subordinate to the High Court in the strict sense of that expression although they have trappings of such a Court. The present petition is, however, nto merely one under section 115 Civil Procedure Code . It also purports to have been made under Article 227 of the Constitution. There can he no doubt that buth the Rent Controller and the Tribunal are subject to the superintendence of this Court under the aforesaid Article of the Constitution. There is, thereforee, no merit in this objection of the learned counsel as well.

(7) Coming to the merits of the claim put forth by the petitioner, I find that the petitioner neither claims to be a sub-tenant nor an assignee of the tenant nor does he claim to be a direct tenant under the Landlord. All that he claims is that he was in occupation of the demised premises along with the tenant, the tenancy being abmittedly in the name of J. N. Mehra sole properietor of the. firm J. N Mehra and Brtohers. If the petitioner has no such interest in the tenancy as stated above, the mere fact that he was in occupation of the premises, may be even with the consent of the landlord, would nto confer any right on him and he would, thereforee, neither be a necessary nor a proper party to the eviction proceedings instituted by the landlord against tho tenant. Apart from that if the landlord has nto chosen to implead him as a party to the ejectment application and the petitioner has nto shown any such right in himself as would entitle him to be imp leaded as a party, the order of eviction obtained by the landlord against the tenant would nto bind the petitioner in any case it would still be open to him to assert whatever rights he might have when the order of eviction is sought to be enforced against him. The case, thereforee, does nto involve any injustice which should justify this Court's interference under Article 227 of the Constitution.

(8) The revision petition is consequently dismissed but there will be no order as to costs.

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