I.D. Dua, Act. C.J.
(1) Shri Hori Lal has approached the Court on second appeal under section 39 of the Delhi Rent Control Act No. 59 of 1958 from the order of the Rent Control Tribunal dated 20th August 1964 dismissing the appellant's appeal from the order of the Rent Controller dated 20th January 1964 granting to Tek Chand (respondent in this Court) his prayer for recovery of possession of the premises in dispute against the appellant.
(2) It is necessary at this stage to go back to 19th September 1963 when in Tek Chand's petition for ejectment of Hori Lal it was observed by the Rent Controller that admittedly Hori Lal was in possession of theseremises. In the order, the Rent Controller then proceeded to observe as follows :-
'IT is stated that at first the premises were sold in his favor by the Rehabilitation Department but has failed to pay the full price, the sale was cancelled and the present petitioner has purchased this property and a sale' deed has been issued in his favor. Hori Lal respondent was a tenant of the Custodian and now he has become the tenant of Tek Chand petitioner. The landlord claimed rent at Rs 20.00 but the tenant states that he was paying rent at Rs. 10.00 p. m. to the Custodian. A receipts has been shown to me. As. there is a dispute about the rate of rent between the parties, I fix the interim rent at Rs. 10.00 p. m. under S. 15(1) of the Delhi Rent Control Act, 1958, I pass an order that the respondent tenant should deposit in this Court arrears of rent from 23rd July 19SI up to date @ Rs. 10.00 p. m. within one month from today and future rent at the same rate by the 15th each following month.'
(3) From this order an appeal was preferred by Hori Lal and the Rent Control Tribunal by an order dated 17th December 1963 affirmed the Rent Controller's order, but in view of the time fixed for depositing the rent having elapsed, directed the appellant-tenant to deposit the arrears of rent from 23rd July l961 up to date at the interim rate of Rs. 10.00 p. m. within one month from 17th December 1963 and also to deposit future rent month by month at the same rate by the 15th of each following month. In the course of the order, it was observed :-
'IT is admitted that this house belonged to the Government of India. The premises in dispute were alltoted to the appellant in the year 1953 and he was paying Rs. 10.00 p. m. to the Rehabilitation Department. It is alleged that it was offered for sale to him by the Ministry of Rehabilitation on payment of the plice and he paid Rs. 700.00as the first Installment of the price. It appeared that the property was nto sold to him. Latter on the property was sold to the Respondent 1n whose favor sale certificate has been issued. In his replication the landlord has pleaded that after the sale of this house in his favor he filed a civil suit for recovery of arrears of rent against the appellant-tenant which was decreed by Shri Amar Nath Aggarwal. Additional Judge, Small cause Courts, and that decision was final between the parties. A separate suit was filed by the appellant to have that decree set aside but the same was dismissed. thereforee, frima facia it is established that the Respondent 1s the purcha- ser of these premises. Consequently, by oparation of law, the appellant became a tenant under him.'
(4) When the cause was again taken up by the Rent Controller after the appellate order just mentioned, Hori Lal did nto deposit the arrears of rent as directed by the Tribunal. An application was made on his behalf that he was a poor man and time may be extended for making the necessary deposit. The learned Rent Controller felt helpless, observing that there was no provision of law under which he could grant extension of the time granted by the learned Appellate Court for deposit of the arrears of rent. In these circumstances, he struck out Hori Lal's defense against eviction under section 15(7) of the Rent Control Act. After striking out the defense, he directed that Tek Chand's evidence be recorded. Tck Chand himself appeared as A.W. 1 in which he deposed that the respondent before the Rent Controller was his tenant and that ntoice of demand was served on him as per Exhibit A/2 of which the acknowledgment receipt was Exhibit A/4 and the postal receipt Exhibit A/3. He also deposed about the failure on the part of Hori Lal to pay rent and to deposit the amount due in spite of the order of the Rent Controller dated 19th September, 1963, against which the appeal had also failed. After this evidence, the Rent Controller on the same day i.e. 20th January, 1984, passed an order for Hori Lal's eviction. Against this order an appeal was preferred in the Rent Control Tribunal in which, of course, it was prayed in the end that the order of the Controller dated 20th January, 1934 striking, out the defense and the final order of eviction dated 20th January, ^964 be set aside. In ground No. 6, it was pjeaded that it was nto imperative on the Controller to strike out Hori Lal's defense but it required exercise of discretion on the part of the Controller and when the very relationship of landlord and tenant between the parties was in dispute, the defense should nto have been struck out but the case should have been proceeded with to trial on merits requiring Tek Chand to establish such relationship between the parties. The learned Tribunal in its order on appeal observed that the tenant had nto filed any appeal against the order of the Rent Controller striking out his defense under section 15(7) of the Rent Control Act, with the result that the said order had become final in view of the provisions of section 43 of the said Act. On the merits, the Tribunal felt that the order of eviction had been rightly made on the facts and circumstances of this case. Section 14(1)(a) of the Rent Control Act was held fully applicable to Justify the order of ejectment.
(5) On second appeal in this Court, Shri P.S Safeer learned counsel for Hori Lal, has read out to me the impugned order as well as the earlier orders, of the Rent Controller dated l9th September, 1963 and of the Tribunal dated 17 the December, 1963. He has also read out to me the final orders of the Rent Controller dated 20th January, 1964 as also of the statement of Tek Chand of the same date. After going through this part of the record, the learned counsel has submitted that without coming to a positive finding that the relationship of landlord and tenant existed between the parties, the Rent Controller or the Appellate Tribunal had no jurisdiction to make the order of deposit, and still less were they Justified in making an order striking out the defense of the present appellant and of making an order of his eviction.
(6) The argument seems to me to be difficult to sustain. The order of the Rent Controller dated 19th September, 1963 quite clearly shows that a finding was given to the effect that Hori Lal was a tenant of the Custodian and later became a tenant of Tek Chand petitioner. This finding was affinned on appeal by the Rent Controller Tribunal. For reasons best known to Hori Lal, he did nto choose to challenge the order of the Rent Conrol Tribunal dated l7th December, 1963 in the higher Court. On the basis of those' diders, the Kent Controller than proceeded on the assurrption that prima facts the relationship of landlord. and tenant subsisted between the parties. When Hori Lal declined to make the requisite deposit under the ferms of the order of the Tribunal, the Rent Controller was fully justified in striking out the defense against eviction and to proceed with the hearing of Tek Chand's petition.
(7) It has however, been very strongly complained by Shri Safeer that that order dated 2Cth Januaiy, 19C4 by means of which Hori Lal's defense was struck out by the Rent Controller, was open too appeal and, thereforee, without waiting for Hori Lal to appeal against- that order.to pecceed forthwith with the hearing of Tek Chand's applications is unjust and illegal because it virtually amounts to a negation of Hori Lal's statutory right of appeal. I do net find,it possible to agree-with this submission. Section 15(7) of the Rent Act in express terms provides that: if a tenant fails to make payment or deposit as required by this section, the Controller may order the defense against eviction to be' stiuck out and proceed with the heeling of the. application. The language is quite clear ard it does nto impose any obligation on the Rent, Controller after striking cut the tenant's defense against eviction to wait till he is able to challenge that older before the Appellate Tribunal and to proceed to hear the ejectment application only after the tenant has tried his luck on appeal. In so far as the contention, that it would have been better exercise of discretion nto to proceed forthwith with the hearing of the application. is concerned, I must point cut that the course suggested would in' my view be placing premium on the tenant's indifference or delibeiate failutr comply with the order of payment or deposit made under section 15. If deposit is made in time, then the application would be heard forthwith, but by declining to comply with the older, the tenant would certainly gain much longer time to stick to the premises and to prolong the disgosal of the a.pplication for eviction. This obviously could nto be the legislative intendment as disclosed on the language used in section 15(7).
(8) The learned counsel next argued that when Hori Lal of which Hori Lal's defense was struok out by the Rent Controller, was open to appeal and, thereforee without waiting for Hori Lal to appeal against that' arder.to proceed forthwith with the hearing of Tek Chand's application is unjust and illegal because it virtually amounts -to a negation of Hori Lal's statutery right of appeal. I do nto find it possible to agree with this submission. Section 15(7)of the Rent Act in. express terms. provides that if a tenant fails to make payment or deposit as required by this section, the Controller may order the defense against eviction to be struek out and proced with the hearing of the application. The langyage is-quite clear and it does nto impose any .obligation on the Rent Controller after striking out the tenant's defense against eviction to wait till he is able to challenge that order before the Appellate Tillurl and to procced to hear the ejectment application only after the tenant has tried his luck on a; peal. In so far as the contention, that it would have been bitter exercise of discretion, nto to proceed forthwith with the hearing of the application is concerned, I must point out that the course 'suggested would in my view be placing premium on the tenant's indifference or deliberate falure to comply with the order of payment or deposit made under section 15. If deposit is made in time, then the application would be heard forthwith, but by declining to comply with the order, the tenant would certainly gain much longer time to stick to the premises and to prolong the disposal of the application for eviction. This obviously could nto be the legislative intendment as disclosed on the language used in section 15(7).
(9) The learned counsel next argued that when Hori Lal went up in appeal before the Tribunal, although he had nto attached with the memorandum of appeal a copy of the order dated 20th January, 1964 striking out his defense, he had nevertheless made a player that the said order should also be quashed being unjustified. It is complained that the learned Tribunal was wrong in holding that the order striking out the defense had nto been appealed against and had, thereforee, become final. Relying on the analogy of section 105, Code of Civil Procedure, Shii Safeer has very eloquently argued that this order was also open to challenge on appeal against the final order of eviction made on 20th January, 1964. Section 105, however, does nto afford any assistance. Reading sectrons 104 ar,d .05, of the order together, it is obvicus that section 105 excludes appeals from orders made by a Court except where there is an express provisions to that effect. Section 104 is one of those provisons. After exdudirg an implied right of appeal, section 105 proceeds to lay down that in spite of there b. ing no appeal provided from toher orders, when a decree is appealed from, it is open to the aggrieved party to set forth as a ground of objection in the memorandum of appeal any error, defect or irregularity in any order affecting the decision of the case. This obviously does nto mean that even in an appealable order against which no appeal has been filed in accordance with law, it would be open to a party as of right after a long lapse of time to challange it when the final decree in the case is appealed from. The argument canvassed by Shri Safeer equates appealable and nonappealable orders, but I am unable to find any cogent ground for sustaining this contention and imputing to the Legislature an mtendment to so equate these two categories of orders under the Delhi Kent Act. Reliance is placed by Shri Safeer on a Single Bench decision of the Rajasthan High Court in Amar Singh v. Chaturbhuj and assistance has particularly been sought from paragraph I I at page 371 of the report. Some observations made in that judgment do seem to lend support to Shri Safeer. Those observations were sought to be justified on the basis of a decision by the Privy Council in Maharaja Moheshur Singh v. The Bengil Governmenl'. I am unable, if I may say 'so with respect, to find any support from the observations of the Judicial Committee for upholding Shri Safeer's contention. Those observations must be read on their own context intended to meet the argument urged on the facts and circumstances of that case, and so read, they lend no assistance in the construction of section 105 of the Code. I, however, need say ntohing more on this point because I have myself permitted Shri Safeer to address me against the order of the Rent Controller striking out his client's defense. The learned counsel has nto been able to point out infirmity or any toher cogent ground justifying disagreement with the view taken by the learned Rent Controller on this aspect of the case. The challenge to the order cf the Appellate Tribunal and the Rent Controller on this basis, thereforee, fails and is repelled.
(10) It has then been contended that the appellant was a poor man and, thereforee, time should have been granted to him to deposit the am- ount even after the ex piry of the period allowed by the learned Appellate Tribunal. Here a gain, it is difficult to uphold the submission. In my view, the Rent Controller was nto far wrong in observing that be had no power to extend the time fixed by the appellate Tribunal because the contrary view would virtually mean the Rent Controller sitting on appeal against the order of the Appellate Authority and modify ing that order. On the facts and circumstances of this case, however, I am also inclined to take the view that refusal to exterd time was a proper exercise of discretion in the matte r. It must nto be forgtoten that the appellant has nto paid any rent dniing the last several years and has, without paying anything stuck to the property in question. I do nto understand how discretion could have judiciously been exercised in favor of the appellant if face of his persistent and deliberate refusal to pay any rent to Tek Chand who is on all hands, the owner of the property in question. Although I have come to the foregoing conclusion on the scheme of the statute it self, considering the matter to be rest integra, the learned counsel for the respond ent states that the ratio of the decision of the Punjab High Court in Shri Durga Swaroop v. Murari Lal, also controverts all the submissions advanced on behalf of the appellant in the present case.
(11) Belore concluding, I must express dissatisfaction with the delay which the disposal of this appeal has been subject to in this Court. It was admitted by the Mtoion Bench on 25th September, 1964 and ntoice was issued for Sth November, 1964. Eviction was stayed only till then. Several applications had since been made on behalf of Tek Chand for early hearing of the appeal, and indeed more than once specific orders have been made bylearned Judges directing early hearing sometime fixing the outside limit within which it should be disposed of, but for one reason or the toher, this appeal has nto been heard and disposed of till today. Delays of this type, in my view, do nto promtoe the cause of justice.
(12) For the foregoing reasons, this appeal fails and is dismissed with costs.