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Santosh Chopra Vs. Teja Singh Sardul Singh - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 186 of 1975
Judge
Reported inAIR1977Delhi110; ILR1977Delhi216
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 13; Code of Civil Procedure (CPC), 1908 - Sections 151
AppellantSantosh Chopra
RespondentTeja Singh Sardul Singh
Advocates: V.S. Sawhney and; Narinder Singh, Advs
Cases ReferredBalaji Govinda Narain v. Hira Lal
Excerpt:
the case focused on the order of additional rent controller that was found to be contrary to the rule laid down by the high court in earlier judgment - it was ruled that there cannot be two view in the same matter and thereforee, order contrary to law was set aside under article 227 of the constitution of india - - the learned additional rent controller dismissed this application of the petitioner and even expressed an opinion in paragraph 12 of the impugned order that without going into evidence it would be unjust to bar any remedy for a landlord like the respondents, if it is held that they cannot get the ex-parte order fixing standard rent set aside. gouri sundari devi and others air1926cal1015 (1). in that case it was held that the puisne mortgagee not a party to a suit cannot be..........227 of the constitution is directed against an order dated 24th may, 1975, by which an additional rent controller, delhi, dismissed the petitioner's application under section 151 of the code of civil procedure moved in that court. to appreciate the scope of the controversy in this court it will be advantageous to first briefly notice the facts and circumstances leading to the impugned order. (2) the petitioner claims to be a tenant in the premises bearing no. 6324, padam singh road, karol bagh, new delhi. this property was owned by one harbans kaur. on february 9, 1971, the petitioner filed an application in the court of rent controller, delhi, for fixation of standard rent of the premises in her occupation, claiming herself to be a tenant of harbans kaur. this application was decided.....
Judgment:

Prakash Narain, J.

(1) This petition under Article 227 of the Constitution is directed against an order dated 24th May, 1975, by which an Additional Rent Controller, Delhi, dismissed the petitioner's application under section 151 of the Code of Civil Procedure moved in that court. To appreciate the scope of the controversy in this Court it will be advantageous to first briefly notice the facts and circumstances leading to the impugned order.

(2) The petitioner claims to be a tenant in the premises bearing No. 6324, Padam Singh Road, Karol Bagh, New Delhi. This property was owned by one Harbans Kaur. On February 9, 1971, the petitioner filed an application in the court of Rent Controller, Delhi, for fixation of standard rent of the premises in her occupation, claiming herself to be a tenant of Harbans Kaur. This application was decided exparte on October 12, 1971, and standard rent was fixed at Rs. 62.50 per month. On October 15, 1971, Harbans Kaur sold the said property to the present respondents. In September, 1973, an application was moved by the present respondents in the court of Additional Rent Controller under Order 9 Rule 13 of the Code of Civil Procedure praying that the ex-parte order dated October 12, 1971, fixing the standard rent, be set aside. The present petitioner filed her reply and objections to that application on October 11, 1973, and, interalia, questioned the locus standi of the respondents to move an application under Order 9 Rule 13 of the Code of Civil Procedure. There upon, the respondents in the end of October 1973, moved another application under Order I Rule 10, Order 22 Rule 10 and Section 151 of the Code of Civil Procedure, for being imp leaded as a party to the original proceedings for fixation of standard rent. This application was also opposed by the present petitioner in her reply filed on November 15, 1973. By an order dated 23rd November, 1973, the Additional Rent Controller granted the application of the respondents hereinafter Order 1 Rule 10 Civil Procedure Code etc. and ordered that the respondents be imp leaded as a party to the original case of fixation of standard rent. Aggrieved by that order the petitioner herein moved this Court by a petition under Article 227 of the Constitution. By a judgment of Prithvi Raj, J. this Court accepted that petition, quashed the order of the Additional Rent Controller dated November 23, 1975, holding that Order 1 Rule 10, Order 22 Rule 10 and Section 146 of the Code of Civil Procedure Code not attracted in the facts and circumstances of the case, and remanded the case back for disposal of the respondents' application under Order 9 Rule 13 of the Code of Civil Procedure which was still pending. On February 7, 1975, the petitioner filed an application under Section 151 of the Code of Civil Procedure praying that the respondents' application under Order 9 Rule 13 Civil Procedure Code be dismissed without proceeding to record evidence. This application under Section 151 Civil Procedure Code raised certain preliminary objections to the maintainability of the application under Order 9 Rule 13 Civil Procedure Code contending that the respondents' application was incompetent, mis-conceived and untenable. The learned Additional Rent Controller dismissed this application of the petitioner and even expressed an opinion in paragraph 12 of the impugned order that without going into evidence it would be unjust to bar any remedy for a landlord like the respondents, if it is held that they cannot get the ex-parte order fixing standard rent set aside. An opinion has also been expressed that the respondents are the assignee of the rights of the previous landlords (wrongly mentioned as petitioner in the impugned order). It is in these circumstances that the petitioner has come to this Court for interference with the order of the Additional Rent Controller under the provision of Article 227 of the Constitution.

(3) The first question that arises for consideration is whether the approach of the Additional Rent Controller is legally tenable. The respondents in their application under Order 9 Rule 13 have raised disputed questions of fact as to service of notice on Harbans Kaur etc. But foremost it has to be seen whether such application as moved by the respondents under Order 9 Rule 13 Civil Procedure Code is one which the respondents had locus standi to move. The question is whether the Additional Rent Controller should have decided this matter as a preliminary issue or gone on to decide the application under Order 9 Rule 13 Civil Procedure Code on merits and then at that stage decide about the locus standi of the respondents to move the application under Order 9 Rule 13

(4) In my opinion, the approach of the Additional Rent Controller cannot be sustained in law. As is apparent from his observations in paragraph 12 of the impugned order, his approach is that 'It would be patently unjust to bar any remedy for such a landlord, if he cannot even get the decree set aside if the law so permits and, thereforee, in my opinion since the petitioner is the assignee of the rights of the previous landlord, thereforee, he can apply for getting the decree set aside as such.' This finding is patently erroneous and against settled law. Order 9 Rule 13 of the Code of Civil Procedure reads as under :-

'R.13. In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.'

(5) On the very reading of the Rule it is clear that it is only the defendant in an action who can move an application under this provision of law. A person who is not a party, though he may be interesated in the suit, is not entitled to apply under this Rule. Indeed, even if a person who is formally a party but against whom noting is said in the operative portion of the decree or who has been expressly exempted from a decree cannot apply under this Rule to set aside an ex parte decree.

(6) It has been urged that the respondents had succeeded to the rights of Harbans Kaur and so they must be regarded as defendants within the meaning of Order 9 Rule 13 Civil Procedure Code . Factually the position is that the respondents became the owner of the property subsequent to the pasting of the ex parte order sought to be set aside. The respondents' application under Order I Rule 10, Order 22 Rule 10 Cpc etc. stands dismissed by an order of this Court. They cannot, thereforee, even plead that they are the legal representatives of or entitled lo be substituted in place of the original defendant or added as a party to the original proceedings. If that be the position then the respondents are outsiders to the proceedings in which ex parte order was made and may not have locus standi to have the order set aside. The proposition of law which I have enunciated hereinabove finds support from a Bench decision of the Calcutta High Court in Susil Chandra Guha and another v. Gouri Sundari Devi and others : AIR1926Cal1015 (1). In that case it was held that the puisne mortgagee not a party to a suit cannot be allowed to apply for setting aside the ex parte decree either under Order 9 Rule 13 or under Section 146 Civil Procedure Code . If this is the correct law, it may have to be held that an outsider like the respondents cannot move an application under Order 9 Rule 13 Civil Procedure Code . The Additional Rent Controller in his impugned order could not take up the position that he has in paragraph 12 of the impugned order which has been quoted above. The decision of the Calcutta High Court referred to earlier was brought to the notice of the Additional Rent Controller but he has disagreed with that interpretation. He has rather relied on two other decisions, one of the Patna High Court and the other of the Andhra Pradesh High Court. In my view the reading of these two decisions by the Additional Rent Controller is not tenable.

(7) In the case of Pulhin Suga Kuer and another v Deorani Kuer and others ( : AIR1952Pat72 relied on by the Additional Rent Controller, the application in question was moved by the defendant and not the transferee. It was a case under section 146 Cpc and not under Order 9 Rule 13 Civil Procedure Code . Section 146 Civil Procedure Code speaks of claiming 'under a party' and not 'through a party'. I do not understand how any reliance on this decision could be placed by the Additional Rent Controller.

(8) In the case of Balaji Govinda Narain v. Hira Lal & another A.I.R. 1957 AP 364 there is an obvious mistake in the judgment. The fallacy in the Bench decision is that the word 'through' has been substituted for the word 'under' occurring in Section 146 Civil Procedure Code . The head note is somewhat misleading and one has to read paragraphs 12 to 16 to find the fallacy. With respect it must be said that had their Lordships of the Andhra, Pradesh High Court not substituted the word 'through' for the word 'under' such a proposition of law as laid down would not have been laid down.

(9) The respondents' attempt to get substituted or added as a party has already failed. In this view of the matter it was incumbent upon the trial court to first decided the locus standi of the respondents to move an application under Order 9 Rule 13 Civil Procedure Code instead of putting the parties to the cost and trouble of trial on merits. In any case, the Additional Rent Controller has not dismissed the application under section 151 Civil Procedure Code moved by the petitioner on the ground that according to him it would be more convenient to try the whole matter after evidence. He has dismissed the application moved by the petitioner on the ground that the respondents had locus standi to move an application under Order 9 Rule 13 Civil Procedure Code . Such an approach cannot be sustained in law.

(10) It has been urged on behalf of the respondents that Article 227 of the Constitution is not attracted where there are two views possible. First of all I do not agree that there arc two views possible in a case like this. Secondly, the approach of the Additional Rent Controller is wholly untenable in law. Indeed, the finding of the Additional Rent Controller to the effect that the. respondents can move an application to set aside the ex parte order made against Harbans Kaur amounts to a decision against the rule laid down by my brother Prithvi Raj, J. referred to earlier which was inter parties and is binding on them.

(11) It was next urged that even if the present landlords cannot move an application under Order 9 Rule 13 Civil Procedure Code , they can move the Additional Rent Controller under Section 151 Civil Procedure Code to set aside the ex parte order against Harbans Kaur. Apart from the fact that' Harbans Kaur, if she had herself moved the application, would have faced a problem of limitation and having no interest in the property at the time when she moved the application, the respondents cannot take advantage of section 151 Civil Procedure Code . This section reads as under :- '151. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.'

(12) The above section saves the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. This section by itself gives no right to a party nor does it confer any jurisdiction. It is settled law that where there is a specific provision of law, the provisions of Section 151 Civil Procedure Code connot be invoked. For example, where an appeal has been filed in the name of a dead person,, the Appellate Court has no inherent power to permit his legal representatives to be substituted in his place as appellants (See .

(13) Section 151 Civil Procedure Code may be availed of by a Court read with some other provision of law or where there is no provision of law to cover a contingency. As has been held in Murari Lal v Smt. Gurdei and others (1971 Allahabad Law Journal 1121) (5) Section 151 Civil Procedure Code cannot be invoked by a court for substituting legal representatives after the judgment has been signed and the decree passed.

(14) Learned counsel for the respondents has relied on three decisions to contend that Section 151 Civil Procedure Code would be attracted. The first case he relies on is the decision in Shaligram Bindalal v Pundalik Baliram and others A.I.R. 1955 Nag 238. This is a case where aid was taken of Section 146 Civil Procedure Code etc. to hold that the word 'defendant' in column I of Art. 164 of the Limitation Act, 1908, would include a person claiming under the original defendant. But Section 146 Civil Procedure Code is not available to the respondents in view of the decision of the High Court inter parties referred to earlier.

(15) The counsel for the respondents next relied on the decision in Smt. Bhagwanti v Kidar Nath etc. reported in the Note portion of 1974 Rajdhani Law Reporter as note No. 110(7). This decision only lays down that where a person cannot be substituted under Order 22 Cpc then substitution can be ordered under Section 151 Civil Procedure Code also This decision is, thereforee, not relevant for the purposes of the present case.

(16) Lastly, the learned counsel relied on a decision in Subhash Chander v Rehmatullah 1972 RLR 154. This is a case where a Bench of this Court held that the Rent Controller had inherent power to set aside an ex parte order at any time without being bound by the law of limitation. This decision has not laid down any rule as to the locus standi of the person at whose instance ex parte order is to be set aside. The point in issue in the case was whether a Rent Controller had become functus officio after having made an order, and so he had no power to correct it. This decision also docs not help the respondents.

(17) It is not the question of power of the Additional Rent Controller that arises for decision in the present case. The point at issue is whether the approach of the Additional Rent Controller is tenable or not in his holding that the respondents, placed as they are, had locus standi to move an application under Order 9 Rule 13 CPC. In my opinion, the order of the Additional Rent Controller cannot be sustained in dismissing the application of the petitioner moved under section 151 Civil Procedure Code for the reasons given. The Additional Rent Controller has held that the respondents have locus standi to move an application under Order 9 Rule 13 Civil Procedure Code on untenable grounds. This decision cannot be sustained. I accordingly quash the impugned order. Inasmuch as I have already observed that the respondents had no locus standi to move an application under Order 9 Rule 13 Civil Procedure Code , which was the point debated before the Additional Rent Controller, that application of the respondents has to be disposed of in accordance with the law laid down herein. I, thereforee, direct that the said application of the respondents under Order 9 Rule 13 Cpc be listed for hearing forthwith and disposed of in accordance with the law laid down. The present petition is accepted as indicated above. The petitioner would be entitled to her costs. Counsel's fee is fixed at Rs. 250.


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