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Ram Kumar Vs. Harish Kumar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 163D of 1963
Judge
Reported in4(1968)DLT74
ActsDelhi Rent Control Act, 1958 - Sections 29 and 43A; Code of Civil Procedure (CPC), 1908 - Sections 115; Constitution of India - Article 227
AppellantRam Kumar
RespondentHarish Kumar and anr.
Advocates: B.J. Nayar and; Shyam Kishore, Advs
Cases ReferredPritam Singh v. Suraj Pershad
Excerpt:
civil procedure code (v of 1908) - section 115--revision against the order of rent controller dismissing the defendant's application for setting aside ex-parte order for eviction--maintainability of--subsequent application for amendment of grounds of revision praying that if revision is nto competent it may be treated as writ petition--constitution of india, article 227-delhi rent control act (59 of 1958), section 39. ; an ex-parte order for the eviction of a tenant was passed against him and the latter applied for setting aside of the said ex-parte order, but the same was dismissed in default and an application for restoration of that application was also dismissed in default, and a further application for restoration of the one dismissed in default previously was dismissed on merit on.....i.d. dua, c.j. (1) harish kumar and his brtohers applied in the court of the rent controller for the eviction of ram kumar and his brtoher ram krishan on the grounds of (i) default in payment of rent, (ii ) sub-letting and (iii) bona fide personal requirement. these pleas were controerted and it was added that ra'n kishan being the real brtoher of ram kumar, was living with him and there was no question of sub-tenany. on 9th september, 1960, claim against ram kishan was given up and ram kumar being absent, ex 'pane evidence was led on the basis of which an order of eviction based on the ground of subletting was passed against ram kumar (2) an application for setting aside the exparte order was made by ram kumar, but the same was dismissed in default. an application for restoration of that.....
Judgment:

I.D. Dua, C.J.

(1) Harish Kumar and his brtohers applied in the Court of the Rent Controller for the eviction of Ram Kumar and his brtoher Ram Krishan on the grounds of (i) default in payment of rent, (ii ) sub-letting and (iii) bona fide personal requirement. These pleas were controerted and it was added that Ra'n Kishan being the real brtoher of Ram Kumar, was living with him and there was no question of sub-tenany. On 9th September, 1960, claim against Ram Kishan was given up and Ram Kumar being absent, ex 'pane evidence was led on the basis of which an order of eviction based on the ground of subletting was passed against Ram Kumar

(2) An application for setting aside the exparte order was made by Ram Kumar, but the same was dismissed in default. An application for restoration of that application was also dismissed in default on 17th Jannary 1962. The same day, a further application was made for re-to- ration of th' earlier application for restroration dismissed in default on 17th January 1962. This later application was dismissed on that merits on 12th April, 1962 on the finding that no sufficient ground was shown for the absence of appaarance on l7th January, 1962 when the case was called. An appeal against this order was dismissed by the Rent Control Tribunal on 1st December, 1962 on the ground that no appeal lay under section 38 of the Delhi Rent Control Act as the impugned order was nto one made under the provisions of the said Act. Reliance for this view was placed on a decision by Gosain, J. in South Asia Industries v. S. B Sarup Singh.

(3) It is against this order that the present revision has been preferred. Shri Shyam Kishore, the learned counsel for the respondents has raised a preliminary objection that an appeal lies against the impugned order under section 39 of the Delhi Rent Act and that the same is barred by time. No revision would in the circumstances b3 enter tainable. On the merits also, it is contended that no Explanationn for absence on l7th January, 1962 is forthcoming, with the result that the impugned order deserves to be upheld.

(4) The pstitioner Ram Kumar has, it may be painted out, also filed an application dated 31st October, 1967 seeking amendment of the memorandum of the grounds of revision by adding a ground to the effect that without a valid ntoice under section 106, T. P. Act, the eviction application was nto maintainable. At the buttom of this application, there is a ntoe that if no revision is held to lie, then the same may be treated as a writ petition.

(5) Shri Bikramjit Nayar, the learned counsel for Ram Kumar has cited the decision in Pokay Mal v. Prem Nath, in which D. K. Mahajan, J. held that an order refusing to set aside an ex Parte order is appealable and distinguished the decision in the case of South Asia Industries on the ground that in the earlier case it had been held as a fact by Gosain, J. that the impugned order appealed against was nto an order under the Rent Act. Dulat and S K Kapur JJ. in The Central Bank of India Ltd., v. Gokal Chand, considered the conflict in the decisions of the Punjab High Court and following the decision of the Supreme Court in Shankarlal Aggarwala v. Shankarlal Poddar, laid down that an order finally deciding the dispute between the parties or depriving a party of a substantial and important right would be appealable. An order declining to issue a commission was, however, considered to be an order merely of a procedural nature nto affecting the rights and liabilities of a party and, thereforee, nto appealable.

(6) Assuming, as urged by Shri Bikramjit Nayar that the impugned order of the Rent Conroller dated 12th, April, 1962 was appealable under section 38 of the Delhi Rent Control Act, the order of the Rent Control Tribunal dated 1st December 1962 dismissing the appeal against the order dated 12th. April, 1902 on the ground that no appeal was competent under section 38 of the Delhi Rent Control Act must also, in my view, b3 open to appeal in this Court under section 39 of the said Act. If that be so, then the present revision under section 115. Code of Civil Procedure would obviously be incompetent. The Dalhi Rent Control Act being a selfcontained code on the subject of appeals and finality of the orders made in the proceedings under the Act, it would nto be permissible to press into service section 115, Code of Civil Procedure, for the purpose of filing revisions in this Court from the orders of the Rent Control Tribunal. Section 38 provides for appeal to the Tribunal and section 39 for second appeal to the High Court on a substantial question of law. Section 43, providing for finality of orders, renders every order made by the Controller and every order passed on appeal final, nto liable to be called in question in any original suit, application or execution proceedings except where the said Act itself expressly provides toherwise. It is also open to question if the Rent Controller or the Rent Control Tribunal can be said to be Courts subordinate to the High Court within the contemplation of section 115, Code of Civil Procedure. But this apart, where an appeal to this Court is competent, the ravisional power under section 115 is expressly ruled out by the section itself.

(7) Furning now to the order of the Tribunal, I find that it was passed on 1st. December, 1962. The application for its certified copy was made on 11th, December, 1962 and the same was attasted on 26th. December, 1962. This shows that 16 days were taken in securing its copy which may be excluded as time requisite while computing the period of limitation for second appeal. The period of limitation prescribed by section 39 is sixty days, with the result that the appeal in this Court could have been filed within 76 days after 1st. December, 1962. The present revision was presented in this Court on 5th, March, 1963 without a certified copy of the order of the Kent Controller. From the record, it appears that the certified copy of the Rent Conttoller was applied for on 5th. March, 1963 and the same was made available on 26th. March, 1963. It is obvious that the days spent in securing this copy can on no account be excluded for computing the period of limitation for appeal because it was evidently applied for after the expiry of the said period. I have dealt with these dates for the purpose of declining to treat the revision as an appeal which course, in the interests of Justice, I would have liked to adopt if there was no question of limitation. The revi- sion, for the foregoing reasons, is indisputably incompetent and I feel equally helpless to treat it as an appeal.

(8) As observed earlier, the petitioner has also filed an application for amending the grounds of revision and along with this application, he has attached the memorandum of the grounds of revision as amended. The prayer at the buttom of the grounds of revision that in case no revision is competent, it may be treated as a writ petition is wholly misconceived because this Court would be wholly disinclined to allow its writ jurisdiction to be invoked where a competent appeal has nto been filed and the limitation for the same has been allowed to expire, There are far stronger reasons for denying the writ Jurisdiction to be invoked than for disallowing a revision when the statute has provided for appeal, however restricted its scope. As a matter of fact, technically speaking, it would be the power of superintendence under Article 227 of the Constitution which may in a given case be permitted to be invoked and nto the writ Jurisdiction within the contemplation of Article 226 of the Constitution. The Jurisdiction under Article 227 of the Constitution also, in my view, is nto open to the present petitioner in view of remedy of appeal being available to him under section 39 of the Delhi Rent Control Act.

(9) The question of amendment of the grounds of revision in this Court would in the present case hardly arise; but even it did, the plea of ntoice, it may be pointed out, depends on the facts and circumstances of each case and to permit such a plea to be raised in this Court would be highly unjust and prejudicial to the opposite party : see Pritam Singh v. Suraj Pershad, S.A.O. 257 of 1337 decided on 21st November, 1967. It is of interest to ntoe that the petitioner has nto tried to seek amendment of his pleidings before the Rent Controller, with the result that the amendment of the grounds of revision on the existing record can be of no avail to the petitioner, for the plea that he seek to urge is nto a plea of pure question of law which has ntohing to do with the pleas of facts.

(10) For the foregoing reasons, this ravision fails and is dismissed with costs.


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