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Sunder Lal Vs. Jeet Singh Etc. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 41 of 1977
Judge
Reported in1977RLR407
ActsDelhi Rent Control Act, 1958 - Sections 15(1); Code of Civil Procedure (CPC), 1908 - Sections 151
AppellantSunder Lal
RespondentJeet Singh Etc.
Advocates: J.K. Jain and ; G.N. Aggarwal, Advs
Excerpt:
an appeal was filed against the order passed under section 15 (1) of the delhi rent control act, 1958 - it was held that the deposit order could not be stayed but tribunal might stay further proceedings under section 151, order 41 rule 5 of the civil procedure code, 1908. - - the question may well be be asked what is the nature of these further proceedings ? (3) the next stage in the proceedings is that either an eviction order has to be passed u/s 14(1)(a) or the defense has to be struck off u/s 15(7) (this is on the assumption that the order u/s 15(1) has not been complied with). if this second stage is reached then another appealable order will have been passed by the rent controller leading to yet another appeal before the rent control tribunal. it will waste the valuable time of.....d.k. kapur, j.(1) this is an appeal u/s 39 of the delhi rent control act, 1958 against an order passed by the rent control tribunal refusing stay of further proceedings during the pendency of an appeal against an order passed u/s 15(1). at first sight, this order seems to be entirely discretionary and also appears to involve no substantial question of law. in addition to the circumstances in which the stay order had been refused, it may also be mentioned that earlier the appellant had applied for stay of the order under appeal but stay was refused. the question for consideration is whether the rent control tribunal was right in refusing the stay of further proceedings before the controller, and whether this appeal is maintainable. (2) in order to appreciate the points of law involved in.....
Judgment:

D.K. Kapur, J.

(1) This is an appeal u/s 39 of the Delhi Rent Control Act, 1958 against an order passed by the Rent Control Tribunal refusing stay of further proceedings during the pendency of an appeal against an order passed U/S 15(1). At first sight, this order seems to be entirely discretionary and also appears to involve no substantial question of law. In addition to the circumstances in which the stay order had been refused, it may also be mentioned that earlier the appellant had applied for stay of the order under appeal but stay was refused. The question for consideration is whether the Rent Control Tribunal was right in refusing the stay of further proceedings before the Controller, and whether this appeal is maintainable.

(2) In order to appreciate the points of law involved in this appeal it is necessary to refer to the scheme of the Rent Control Act in respect of eviction petitions U/S 14(1)(a) of the Act. In such a case, the landlord alleges that the tenant has not paid or tendered arrears of rent in spite of the service of a notice of demand in accordance with Section 106 of the Transfer of Property Act, 1882. A similar provision was also in the Acts of 1947 and 1952. The way in which the tenant could avoid an ejectment order under the Delhi and Ajmer Rent Control Act, 1947 was that he had to deposit the arrears of rent on the first date of hearing along with the costs of the suit. The provision was altered in the Delhi Rent Control Act, 1952 whereby U/S 13(2) the said arrears could be deposited either on the first date of hearing or within such further time as may be allowed by the Court. This provision has been replaced by Sections 14(2) and 15(1) of the Delhi Rent Control Act, 1958. Now the tenant does not have to pay the arrears of rent on the first date of hearing but has to 409 410 await the passing of a specific order U/S 15(1) which sub section permits the Controller to determine the quantum of arrears and enables him to order the deposit of those arrears within one month and subsequent monthly rent by the 15th day of the succeeding month and so on. If such a deposit is made then Section 14(2) provides that ejectment on this ground will not be ordered. thereforee, the trial of an eviction petition brought U/S 14(1)(a) involves in the first stage the passing of an order U/S 15(1) and if such an order is complied with then the tenant avoids ejectment U/S 14(2). Here, again there is a proviso that this advantage cannot be availed by the tenant on more than one occasion. If the tenant defaults for a further period of three months in paying the rent he cannot avoid ejectment by resort to Section 14(2). thereforee it will be seen that the passing of an order U/S 15(1) is a part and parcel of the trial of an eviction petition brought U/S 14(1)(a). The first stay application made by the appellant was for the stay of the order U/S 15(1) which was rightly disallowed by the Rent Control Tribunal, because by not complying with the order, the tenant would gain time without paying any rent. The second stay application moved by the appellant is for a different purpose. It is a for the stay of further proceedings. The question may well be be asked what is the nature of these further proceedings

(3) The next stage in the proceedings is that either an eviction order has to be passed u/s 14(1)(a) or the defense has to be struck off u/s 15(7) (this is on the assumption that the order u/s 15(1) has not been complied with). If this second stage is reached then another appealable order will have been passed by the Rent Controller leading to yet another appeal before the Rent Control Tribunal. Assuming that again the Tribunal does not stay the proceedings, there may be a third order, i. e. the ejectment order leading to yet another appeal. The result will be that in spite of one appeal u/s 15(1) having been filed the Tribunal will be dealing with two extra appeals one against the order u/s 15(7) and one against the substantive order allowing or disallowing ejectment. The substantial question of law involved in this appeal is that the Tribunal by refusing stay of further proceedings, really permits more orders to be passed leading to more and more appeals, which the Tribunal can avoid if the consequences of the order, u/s 15(1) are stayed temporarily during the pendency of the appeal against that order. In the present case the Tribunal has merely said that the order u/s 15(1) is not complied with, so there is no ground for stay. In fact, the appellant's counsel says that the order has been complied with in the sense that certain deposits of rent have been made, though this fact is not admitted by the counsel for the landlord. Now assuming that the appeal by the tenant before the Rent Control Tribunal fails no harm will have been done by the refusal of a stay order. But assuming the other way that the appeal succeeds in the end what will be the consequences The result will be that the order u/s 15(1) will be invalid. Consequently the order passed u/s 15(7) will also become invalid (if such an order is passed) and lastly the eviction order, if any, passed will also become invalid. In fact if the appeal before the Rent Control Tribunal succeeds, the case will have to be remanded back to the Rent Controller for de novo proceedings. All this will lead to so many practical difficulties as be of no benefit to any one. It will waste the valuable time of the Controller as well as of the Tribunal. thereforee, from every practical angle stay should have been granted either fully or in a limited sense. The limited sense could be that the passing of the order u/s 15(7) could be stayed till the decision of the appeal against the order u/s 15(1). However, the proceedings can go on the merits and the ejectment petition can be decided on all the other points. In fact, this is the type of appeal which should be decided most expeditiously by the Tribunal because the appeal u/s 15(1) is closely concerned with the manner in which the trial can go on further before the Controller. If the Tribunal does not decide the appeal and does not pass a stay order regarding further proceedings, there will be many complications at a later date.

(4) One of the questions which has arisen in this appeal is whether it is maintainable u/s 39 against a mere refusal to stay proceedings. Some judgments have been referred to by learned counsel for the respondents which are to the effect that only orders under the Act 411 can be appealed against and the refusal to stay is not an order under the Act. All those judgments are not relevant because they refer to orders' passed u/s 38. As far as orders u/s 39 are concerned, there is no limitation that the order must be one under the Act. In fact, the order is one under the Act in this case, because u/s 38(3) the Tribunal has all the powers of a Civil Appellate Court when hearing an appeal under the Code of Civil Procedure. thereforee, the order is in fact one under the Act. Even if the order is not under the Act an appeal lies because Section 39 allows all orders passed by the Tribunal to be appealed against. Normally the term 'order' must be read as a substantive order deciding some rights of the parties. The order under appeal merely refuses to stay proceedings. It would not normally be a substantive order, but in the case of orders u/s 15(1), the order has a distinct bearing on the merits and future trial of the eviction proceedings. and thereforee, must be classified as being an order having a substantive effect on the merits of the case. In that sense, I must read the order under appeal as being an appealable order. I must also take into consideration the fact that if the appeal against the order u/s 15(1) is decided after the eviction proceedings are over, it may create many difficulties regarding how the new order is to be given effect to. thereforee, I am of the view that the order must be taken to have a substantive effect.

(5) On the facts of the present case I have decided that the appeal is to be allowed only to a very limited extent. Although the saty prayed for is in respect of further proceedings in the eviction petition, I think it will be sufficient if the effect of the order u/s 15(1) is stayed in the limited sense that no order u/s 15(7) should be passed till the appeal has been heard by the Tribunal. thereforee stay the passing of an order u/s 15(7) by Rent Controller till the appeal against order u/s 15(1) is decided. In all other respects the Rent Controller can go on with trial of the ejectment petition. I have accepted this stand, because the learned counsel for respondents says that there are other grounds for seeking eviction in addition to those 14 (1) (a) and hence those grounds are unaffected by an order u/s 15(1). As a general proposition 1 would like to say that the staying or not staying of an order under Section 15 (1) or staying or not staying of further proceedings 'hen an interlocutory order is appealed against is a very vital one. The effect must be closely examined in the light of the nature of the proeeedings. In case an order u/s 15(1) is passed and appealed against, it is desirable .hat the appellant should be directed to go on paying the rent inspire of any interim breach of that order u/s 15(1). On the other hand, it may be desirable in certain cases to stay further proceedings altogether for reasons I have already explained above; in other cases, it may be desirable only to partly stay further proceedings. This matter has to be closely examined. I would also like to say that order u/s 15(1) being interim in nature are urgent, and thereforee, appeals against such orders' should be decided most expeditiously and should be treated in a class by themselves being as they patently are, interlocutary appeale which by their very nature have to be decided very quickly. Hence, this appeal is allowed to the extent indicated above leaving the parties to bear their own costs.


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