T.P.S. Chawla, J.
1. The question referred to the Division Bench is whether an order passed under any of the first four sub-sections of sections 15 of the Delhi Rent Control Act, 1958 (the Act) directing the tenant to pay the past, the present and the future rent of the premises to the landlord which has ceased to operate due to the termination of the eviction petition either by its dismissal or by the passing of an order for eviction, is revived restored when in the appeal the dismissal is set aside and the case is remanded for rehearing under Order XLI Rule 23 or under the inherent powers (now Rule 23A) of the Code of Civil Procedure.
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2. The Rent Control Tribunal held that on remand the order under Section 15(1) of the Act had stood revived and the tenant, was bound to comply with the same. Since he did not comply with it his defense was rightly struck out and the eviction was justified.
3. The appeals against the striking out the defense as also against evictionwere dismissed by the Tribunal. Hence this second appeal under Section 39 ofthe Act.
4. The nature of the Order under Sections 15(1), 15(2), 15(3) or 15(4) :
If a petition for eviction is based on non-payment of rent under Clause (a) of the proviso to Sub-section (1) of Section 14 of the Act, then ''in every proceeding for the recovery of possession of any premises' the (Controller shall make an order directing the tenant to pay the past, present and future rent under Sub-section (1) of Section 15. If the eviction petition is based on any ground other than the one referred to in Sub-section (1) of Section 14, the landlord may make an application to the Controller and the Controller may make an order directing the tenant to pay rent in the same way as above under Sub-section (2) of Section 15. The order under any of the first four sub-sections of Section 15 is the same. The only difference between Sub-section (1) and Sub-section (2) is that under the former the order has to be made as a matter of course without any application by the landlords while under the latter it may be made on an application by the landlord. Sub-sections (3) and (4) deal with cases in which the amount of rent and the person to whom it is payable have to be determined before orders under Sub-sections (1) or (2) are passed. The salient point about all the four sub-sections of Section 15 is that the only condition precedent to the passing of the order there under are the existence of a proceeding for the eviction of a tenant, the existence of arrears of rent under Clause (a) or of some other cause of action under Clauses (b) to (1) of the provisos to Sub-section (1) of Section 14, and the existence of relationship of landlord and tenant between the parties. Briefly, thereforee, when the relationship of landlord and tenant is proved and a cause of action for eviction is pleaded an order under Sub-section (1) of Section 15 is always passed and an order under Sub-section (2) of Section 15 is usually passed by the Controller in favor of the landlord and against the tenant. The object of these statutory provisions is that during the pendency of the eviction petition, the payment of rent by the tenant to the landlord should be ensured and that the pendency of the petition is not made an excuse by the tenant for non-payment of rent to the landlord.
The order under Section 15(1) or 15(2) is interlocutory in the sense that it lasts only during the pendency of the petition and comes to an end when an order dismissing or allowing the petition is passed. It is in the aid of the main order to be passed on the petition for eviction in the sense that till the eviction petition is either dismissed or allowed the tenant is made to pay the rent to landlord as per the obligation arising out of the contract of tenancy and/or possession of the premises. Since the proving of the relationship of landlord and tenant is a condition precedent even to the entertainment of the petition for eviction, it may be said that whenever a petition for eviction is entertained by a Controller if the case falls under Section 15(1) an order for payment of rent must be made and if it falls under Section 15(2) the order may be made in favor of the landlord and against the tenant. The conclusion on this point is that an order under Section 15(1) or 15(2) is a mere concomitant of the pendency of the petition for eviction. There are no other conditions to be fulfillled before such an order is passed.
This is to be contrasted with some other interlocutory orders which may be passed under Orders XB of the Code of Civil Procedure. An arrest or attachment before judgment or a temporary injunction or an appointment of a receiver respectively under these provisions are not ordered merely because suits are pending. Naturally, thereforee, they are neither passed in every suit nor are they passed merely because a suit is pending. Other requirements have to be complied with over and above the pendency of a suit.
5. Nature of Remand :
An order of remand is of two kinds. Under order XLI Rule 23 or Section 151 of the Code of Civil Procedure, (now Rule 23A), a retrial may be ordered by an order of remand. The appeal is terminated and the pendency of the proceeding thereafter is only in the trial court. Under Order XLI Rule 25 only issues may be remitted by the appellate Court to the trial court for recording evidence and giving findings, but for the appeal would remain pending and the trial court would be concerned only with trying certain issues and remitting findings on them to the appellate court which would dispose of the appeal thereafter. We are concerned here only with the former kind of remands which remands back the whole case to the trial court for a rehearing and which ends the appeal.
6. What is Retrial ?:
Order XLI Rule 23 of the Code of Civil Procedure says that when the decree is reversed in appeal on a preliminary point the appellate court may remand the case with a direction to readmit the suit under the original number in the register of civil suits and to proceed to determine the suit. The evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. Rule 23A Inserted by the Civil Procedure Code (Amendment) Act, 1976, expressly uses the word 'retrial' in ordering the remand otherwise then on a decision on a preliminary point.
It is clear that a retrial does not mean the reinstitution of the suit. The suit is already pending. It had come to an end by being dismissed or allowed, but is revived by the order of remand made by the appellate court. Of course, in a broader sense even the appeal in which the order of remand is made is a continuation of the suit for certain purposes, but with that we are not concerned. For our purposes we are concerned only with the proceeding which is pending in a trial court or before a Controller under the Delhi Rent Control Act. It is the pendency of this proceeding which had ended and which is revived by the order of remand. The pendency begins with the filing of the petition. The defense of the tenant and the evidence recorded (if any) by the Controller are also parts of the proceedings. Without them the Controller could not have proceeded to dispose the petition.
The question is whether the interlocutory order passed under Section 15(1) or Section 15(2) is a part of the proceeding. The test for determination of what is a part of the proceeding is that such a part must form part of every proceeding. An order under Section 15(1) is such an inevitable part of the proceeding in which the petition for eviction is pending. For, it must be passed by the Controller in a preceding for eviction based on non-payment of rent. We can say, thereforee, that just as a petition by the landlord and the defense by the tenant as also evidence given by them form a part of the proceeding an order under Section 15(1) also form part of the proceeding.
An order under Section 15(2) may or may not be passed by the Controller in a petition for eviction based on a ground other than non-payment of rent. But if the Controller passes such an order then it cannot be distinguished from an order under Section 15(1). Thus, once an order under Section 15(2) is passed, it must be regarded as much a part of the proceeding for eviction as an order under Section 15(1).
On this reasoning, it would appear that orders under Section 15(1) and Section 15(2) are always revived along with the rest of the proceeding by an order of remand. This is why the Additional Controller and the Rent Control Tribunal had no hesitation in coming to the conclusion in both cases that orders under Section 15(1) and Section 15(2) were revived by the remand. This also seems to be the universally adopted view by the Controllers and the Rent Control Tribunals under the Act. We have not come across a contrary view under the Act.
The learned counsel for the tenant appellants before us have, however, argued that orders under Section 15(1) and 15(2) need not always be revived by remand orders. This argument is based on certain analogies.
(a) Analogy with suspension pending enquiry :
For instance, in the absence of a contractual provision an order of suspension pending a disciplinary enquiry which merges in the order of dismissal passed after the enquiry is not revived when the order of dismissal is set aside, Om Prakash Gupta v. State of Uttar Pradesh, : (1956)ILLJ1SC . The decisions in Khem Chand v. Union of India, : (1963)ILLJ665SC , and Balvantrai Ratilal Patel v. State of Maharashtra, : (1968)IILLJ700SC , are distinguishable in as much as suspension order was revived therein because of express statutory provisions and not merely by the setting aside of the dismissal.
It would appear, however, that the analogy with suspension pending enquiry is not perfect. The order of suspension merges in the order of dismissed. For, both of them touch the substantive rights of the person against whom enquiry is being held. These rights are the very subject matter of enquiry, namely, whether the civil servant should continue in service or should he be dismissed or removed from service or be punished otherwise. This is why the order of suspension merges in the order of dismissal.
But the orders under Section 15(1) and 15(2) do not touch the merits of the grounds for eviction. They stand side by side with the grounds for eviction. They only accompany the petition for eviction, but are not involved in the merits of the grounds for eviction. They do not thereforee merge in the order for eviction or in the dismissal of the petition for eviction. They merely come to an end because the proceeding for eviction has to come to an end. It would not be correct, thereforee, to hold that just as an order of suspension is not revived by the setting aside of the order of dismissal the order under Section 15(1) or Section 15(2) is not revived when the dismissal of an eviction petition is set aside and the case is remanded.
(b) Analogy with attachment in execution :
Under the old Rule 60 of order XXI (deleted by the Amending Act of 1976), when an execution proceeding along with attachment comes to an end when the objection by a third party is upheld under order XXI Rule 58 of the Code of Civil Procedure, the decree-holder files a suit under Order XXI Rule 63; When such a suit succeeds, the attachment is revived and the property attached can be brought to sell without a fresh order of attachment. This was so held in Pratap Chandra v. Sarat Chandra 25 CWN 544, by a Division Bench speaking through the Acting Chief Justice, Sir Asutosh Mookerjee, after referring to decisions of Bombay, Calcutta, Allahabad and Madras High Courts. The same view has been taken by the Madras High Court in Chunduru Ramachandrayya v. Chunduru Nageswara Rao AIR 1944 Mad 126, and Smt. Radhey Bai v. Smt. Savitri Sharma 1975 AIR 234 (Delhi High Court) by B.C. Misra J. Indeed, the case before B.C. Misra J. was precisely a case under Section 15 of the Delhi Rent Control Act. The learned Judge after full consideration came to the conclusion that on the dismissal for default orders under Section 15 stand revived.
An attachment in execution is also effected merely because an execution proceeding is pending. Nothing else is necessary to effect an attachment except pendency of an execution. In this respect it is analogous to an order under Sections 15(1) and 15(2) of the Act. It is also not involved in the merits of the grounds for eviction just as orders under Sections 15(1) and 15(2) are not involved with the merits of the grounds for eviction. This analogy is applicable and goes against the case of the tenant appellants and in favor of the respondent landlords.
(c) Analogy of attachment before judgment : Just as under the old Rule 60 of Order XXI, Civil Procedure Code, (now deleted by the Amending Act of 1976), an attachment in execution came to an end when an objection to it was allowed under Order XXI Rule 58 subject to the result of a suit under Order XXI Rule 63, similarly an attachment before judgment comes to an end under Order xxxviii Rule 9 when suit is dismissed or when security is furnished. In spite of this analogy to attachment in execution, two Full Benches of the 'Madras High Court have expressed differing views as to the effect of the setting aside of the dismissal of the suit during the pendency of which an order for attachment before judgment had been passed. In Balaraju Chettiar v. Masilamani Pillai AIR 1930 Mad 514, it was held that the setting aside of the dismissal of the suit did not revive the attachment before judgment which had ceased under Order xxxviii Rule 9 by virtue of the dismissal of the suit. On the contrary, in Tavala Veeraswami v. Pulim Ramanna and Ors. AIR 1935 Mad 365 , it was held that when the dismissal of the suits for default is set aside and the suit is restored all the ancillary orders which had been passed during the pendency of the suit were also restored including the order of attachment before judgment which had been withdrawn when security was furnished under Order xxxviii Rule 9 and the security bond could be enforced after the suit is decreed. With respect, the later decision of the Madras High Court seems to be preferable to the earlier one for two reasons. Firstly, it accords with a decision of the Calcutta High Court in Protap Chandra Gope's case referred to above. Secondly, Order xxxviii Rule 9 merely says that the attachment before judgment comes to an end when the suit is dismissed. But this very reason ceases to exist when the dismissal of the suit is set aside and the suit is restored or remanded. In the absence of Rule 9 of Order xxxviii it is doubtful if the attachment before judgment would have come to an end by the dismissal of the suit. But even if it has to come to an end because of Rule 9, Rule 9 does not prevent its revival after the dismissal is set aside. The analogy of attachment before judgment also should, thereforee, support the conclusion that an order under Section 15 of the Act is also revived after the dismissal of the suit is set aside.
7. Ancillary Orders :
In Bankim Chandra and Ors. v. Chandi Prasad, : AIR1956Pat271 , it. was held that on the restoration of an appeal or a (suit) which had been dismissed for default not only the appeal or suit as such, but also the ancillary orders which had been passed therein before the date of dismissal are also revived. In paragraph 6 of the judgment, two lines of cases, one which supports the decision and the other which is contrary to it, have been considered. We are in respectful agreement with the view expressed by the Division Bench, of the Patna High Court in that case. Consequently, we are unable to agree with the decision of learned single Judge in Raj Chander Gupta and Anr. v. Ramesh Kishore, : AIR1965All546 . Just as a stay order is ancillary, similarly an order under Section 15 of the Delhi Rent Control Act, 1958 is also ancillary. Just as a stay order revives on the restoration of a suit or appeal, similarly, the order under Section 15 also revives. The analogy of the Patna High Court decision, thereforee, helps the answer to be given by us to the question before us.
8. Analogy of setting aside dismissal for default :
When an order of dismissal of a suit for default is set aside the intention of the order setting aside the dismissal would also be the same; namely, that the pendency of the suit should be restored with all the incidentals as they existed on the date on which the suit was dismissed for default: The Full Bench Judgment of the Madras High Court in Tavala v. Veeraswami's case (supra), dealt with the effect of the setting aside of an order of dismissal for default. The reasoning in respect of the effect of setting aside of a dismissal of incidental orders applies by analogy to the effect of an order of remand on the revival of incidental order under Section 15 being such an order.
9. Nature and effect of the order of remand :
The essence of an order of remand directing retrial is that the merits of the case are not finally decided by the appellate court. On the other hand, the case is remitted to the trial court for a decision on merits. The appeal filed against the dismissal of a suit may come before the appellate court either disputing only the final order of dismissal of the suit or other interlocutory orders which had been passed before the said final order. The remand may be the result of the disagreement of the appellate court either with the final order alone or with one or more of the interlocutory orders also. The effect of the remand is that the final order is necessarily set aside. It depends on the terms of the remand order whether any of the interlocutory orders are affected by the remand order. Normally, the remand order would not affect any interlocutory orders unless the remand order expressly says so. The result of the remand, thereforee, is only to set aside the final order and remitting the case back to the trial court for a rehearing and decision on the record existed in so far as the record becomes different by the remand order. If the remand order does not vary the record in respect of the interlocutory orders then the interlocutory orders along with the main case which had come to an end by the dismissal are restored. If the order of dismissal was not intended to affect the merits of any of the interlocutory orders, then cessation of the interlocutory orders would have resulted merely because the suit had ceased to exist and not because any of those orders had been rescinded. The result of the remand, thereforee, is to restore the interlocutory orders as part of the case on which the final decision only has to be again given by the trial court. The intention of the remand would not be to ask the trial court to decide the interlocutory matters again. For, they had already been decided and the interlocutory orders passed were not reviewed on merits at any time. The interlocutory orders, thereforee, come to be restored just as they stood at the final dismissal order was passed.
10. Commencement of the Retrial:
The retrial caused by an order of remand is the result of the reversal of the order of dismissal of a proceeding made by the trial court with which the appellate court has not agreed. The effect is to wipe out the dismissal and restore the proceeding to the trial court for a retrial. The question is when the retrial in the trial court would be deemed to commence. In Mutraj v. Murti Raghonathji, : 3SCR84 , the difference between the affect of an order allowing an appeal and the issue of a stay order or an injunction was pointed out in the following words:
'An order of stay in an execution matter is in our opinion in the nature of a prohibitory order and is addressed to the court that is carrying out execution. It is not of the same nature as an order allowing an appeal and quashing execution proceedings. That kind of order takes effect immediately it is passed, for such and order takes away the very jurisdiction of the court executing the decree......... in the case where the execution proceeding is quashed, the order takes effect immediately and there is nothing left to execute.' Two conclusions can be drawn from the above. Firstly, the order of remand would come into force immediately and so the proceeding in the trial court would be restored Immediately on the passing of the remand order. Secondly, the revival of the interim orders passed in the proceedings now revived m the trial court would be simultaneous with the revival of the main proceeding in which the interim order was passed.
But this is subject to the principle underlying the language of Rules 23 and 23A of Order XLI, Civil Procedure Code. This rule says that the appellate court may not only pass the order of remand but may further direct what issue or issues shall be tried and shall send a copy of the judgment or order to the court from whose decree the appeal is preferred with direction to readmit the suit under its original number in the register of civil suits so that the trial court may proceed to determine the suit. These words may give rise to the argument that the action towards retrial to be taken by the trial court would not commence except upon receipt of the remand order by the trial court.
Fortunately we do not have to consider in the present case whether the proceeding commenced in the trial court after the order of remand immediately alter the passing of the remand order or upon the receipt of the remand order by the trial court. We will assume that it commenced after the receipt of the remand order by the trial court. This is the view expressed by a Division Bench of the Calcutta High Court in Radharam Dassi and Anr. v. Angurbala Dassi, 67 C.W. No. 501. This view is equitable and avoids hardship to the parties who cannot be expected to attend the proceedings in the trial court unless the record is received and the trial court proceeds to comply with the order of remand. It may, thereforee, be said that the obligation of the tenants to deposit the rent was restored only when the remand order was received by the trial court. This should not mean that the legal effect of a remand order would be at the mercy of the action of the court functionaries in communicating the order of remand to the trial court. If, in any case, due to the fraud or collusion or a design to delay and defeat justice a deliberate delay occurs in the transmission of the remand order to the trial court it may be arguable that the commencement of the proceeding in the trial court is not stayed till the actual receipt of the remand order. But, the normal rule would be that the proceeding is restored when the remand order is received by the trial court.
In S.A.O. 190 of 1973, the additional affidavit, dated 24.7.1973, by the tenant averred than an application for deposit of rent was made by him on 24.11.1971, but no action on it was taken till 17.1.1973 because the record of the trial court with a copy of the remand order was not received for a long time. This averment is contrary to the conclusion of fact arrived at by the Rent Control Tribunal and cannot be enquired into in this second appeal under Section 39 of the Act as it is not a substantial question of law. Moreover the landlord respondent has filed a counter-affidavit denying the said allegation. We are not, thereforee, called upon to decide the question of fact.
11. Dismissal on Merits or for Default :
A proceeding of the trial court may be dismissed by a decision on the merits of the case or for default of the appearance of a party or parties. In either event the interim orders would come to an end if they were to subsist only during the pendency of the proceeding. Remand order has the same effect of restoring the proceeding along with the interim orders irrespective of the fact whether the original dismissal of the proceeding was on merits or for default. A distinction between the two made in Raj Chander Gupta's case (supra) in respect of the effect of remand on the revival of interim orders does not appeal to us.
In Sham Lal v. Joint Hindu Family Firm, Ram Chand Siri Ram, C.R. 330 of 1973, decided by a learned single judge of this court on 31.8.1973, the revision petition was against the order of the executing court. The learned single Judge followed Balraju Chettiar v. Mosilamani Pillai AIR 1930 Mad 514, and Raj Chander Gupta v. Ramesh Kishore : AIR1965All546 (supra) and held that the appellate judgment of this court by which the execution petition filed by the decree-holder was remanded for trial on the remaining issues did not automatically revive the interlocutory order dated 5.9.1964 passed by the executing court inasmuch as that order had ceased to be in force when the execution petition was dismissed on merits. The learned single Judge held that the remand order did not stand in the way of the executing court passing a fresh order issuing the warrant of possession in favor of the decree-holder on the view that the previous warrant of possession issued before the dismissal of the execution application was not revived by the order of remand by which the dismissal or the dismissal of the execution by the executing court was set aside. In so far as this view is contrary to the view expressed above, we disagree, with the same.
12. Conclusion :
We, thereforee, conclude that in the absence of anything contrary in the order of remand, an order passed under any of the first four sub-sections of Sections 15 of the Act is restored when the case is remanded for retrial in as much as the orders under Section 15 had come to an and only because of the dismissal of the petition and this reason comes to and by the order of remand. Orders under Section 15 being a part of the record on which a retrial and a final decision has to be again made by the Controller are restored along with the main case by the order of remand. The reference is answered accordingly. The above was the only substantial question of law referred to the Division Bench. The other matters, such as defaults committed by the tenants leading to the passing of orders under Sub-section (1) of Section 15 against them were questions of fact which could not be agitated in an appeal under Section 39 of the Act and no substantial question of law regarding them arises. In view of the answer given by us to the references the concurrent decisions of the Additional Controller and the Rent Control Tribunal in favor of the landlords are upheld and these appeals filed by tenants are dismissed, with no order as to costs.