B.C. Misra, J.
(1) This appeal has been filed under section 39 of the Delhi Rent Control Act 59 of 1958 (hereinafter referred to as the Act and is directed against the judgment and order of the Rent Control Tribunal dated 13th November, 1967, by which the learned Tribunal dismissed the appeal in liming and maintained the order: of the Additional Rent Controller dated 19th September, 1967, thereby affirming the order of eviction of the appellant before me from the premises in dispute on the grounds mentioned in section 14(1)(e) and (h) of the Act.
(2) The principal contention raised by the learned counsel for the appellant before me is that the Rent Control Tribunal had no jurisdiction to dismiss the appeal in liming without sending for the records of the case and its order was manifestly illegal. The relevant provisions of law are contained in sections 36,37 and 38 of the Rent Act. Section 37(2) prescribes the procedure to be followed by the Controller and lays down that subject to any rules made under the Act, the Controller shall as far as possible, follow the practice aprooedure of for a court of small causes, including the recording of evidence. Section 36 confers upon the Controller certain powers of a civil court as well as of a criminal Court prescribed in the statute. Rule 23 of the Rules framed under section 56 of the Act lays down that in deciding any question realating to the procedure, not specially provided by the Act and the rules, the Controller and the Rent Control Tribunal ahall, as far as possible, be guided by the provisions contained in the Kode of Civil Procedure, 1908.
(3) So far as the provisions and procedure for appeals are concerned, the relevant section of the Act is section 38 which reads as follows: (1) An appeal shall lie from every order of Controller made under this Act to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of the person only to be appointed by the Central Government by notification in the Official Gazette. (2) An appeal under sub-section (1) shall be preferred within thirty days from the date of the order made by the Controller : Provided that the tribunal may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) The tribunal shall have all the powers vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when hearing an appeal.'
(4) As regards second appeals to the High Court, provision is made in section 39 of the said Act to the effect that an appeal shall lie to the High Court from an order made by the Tribunal, but no appeal shall lie unless the appeal involves some substantial question of law.
(5) The question for determination before me is what is the scope of sub-section (3) of section 38 and which of the powers of a court of appeal mentioned in section 107 and Order 41 of the Civil Procedure Code are available to the Tribunal. There is no doubt that the words of the relevant phrase occurring in sub-section (3) of section 38 arc of the widest amplitude and the Tribunal would accordingly possess all the powers of a court of appeal which are specified in section 107 of the Civil Procedure Code. As regards Order 41 C. P. C subject to the provisions of Rules 17 and 19 and other rules of the Delhi Rent Control Rules, 1958, all the provisions of the said Order dealing with the procedure for hearing of appeals would also govern the proceedings before the Tribunal which is the first appellate court on facts as well as law.:
(6) However, the learned counsel for the appellant contends that sub-section (3) of section 38 refers to the powers of the Court when .hearing an appeal and it has no reference to any procedure prescribed for the hearings. In my opinion, this contention is not correct. The procedure prescribed forbearing of the appeal specified in Order 41 of the Code of Civil Procedure forms part of the powers and jurisdiction of the appellate, court and in the absence of powers like the onementioned in Rules 17, 1819,20, 21, 24, 3, 33,37 and other relevant rules of the Order 41 of Civil Procedure, hearing of the appeal by the Tribunal would be ineffective and would cease to be a judicial proceeding. I, thereforee, old that all the provisions of Order 41, subject to specific rules framed under the Rent Act, would govern the appeals before the Tribunal. The said finding leads to the conclusion that Rule 11 of Order 41 of Civil Procedure also applies to such appeals and the same reads as follows;- '(1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. (2) If on the day fixed or any other day to which the hearing may b3 adjourned the appellant does not appear 'hen the appeal is called on for hearing, the court may make an order that the appeal be dismissed. (3) The dismissal of an appeal under this rule shall be notified to the court from whose decree the appeal is preferred.' There is, thereforee, no doubt that the Tribunal, like the civil court of appeal, has power to dismiss the appeal without sending notice to the opposite party or to the Controller from whose order the appeal has been preferred. Since the Tribunal is the last court on facts and its findings are binding even on the High Court in Second Appeal, it is evident that the power to dismiss the appeal in liming would be very sparingly exercised and would not be resorted to ordinarily, except in glarng cases where the appeal is barred by law or upon reading the judgment of the Controller, the Tribunal finds that the appellant does not have any arguable case or statable points at all and admission of the appeal to regular hearing would amount to abuse of process of the Court. However, the matter has to be left to the discretion of the Tribunal and if the same is exercised according to sound judicial principles in one way or the other, it will not make its order without jurisdiction. The question, however, whether the Tribunal was justified in dismissing the appeal in liming remaens is without sending for the records of the case.
(7) It is obvious that the provisions of Rule 11 of Order 41 lay down that the records of the case are to be sent for if the appellate court thinks it fit so to do. But that again is a matter of discretion which is to be exercised on sound judicial principles. In the cage before me, the learned Tribunal proceeds to state that the appellant, namely the tenant, admitting the tenancy denied other allegations and the parties led evidence in support of their pleas and the first question requiring determination was whether the premises in dispute had been let out in favor of the tenant for residential purposes and there was admittedly no documentary evidence in respect of the tenancy of the appellant and the user to which the premises had been put, would be the criterion for determining the letting purpose. The Tribunal, however, observed that it stood admitted that the tenant bad been residing in the premises in dispute during the time when he was not engaged in the sale of the vegetable. Further in paragraph 5 of the judgment, the Tribunal observed as follows:-
'THEsale deed Exhibit A. W. 3/1 proved that the respondents were owners of the property in dispute. As regards their bona fide requirement in testimony of Udho Dass A. W. 1, Hari Singh A. W 4 and the statements of the respondents disclose that Mukand Lal respondent had a wife and five children. Whereas Mukand Lal is an Inquiry Clerk in the Railway Department, Daya Nand is Assistant Station Master. Daya Nand Proposes to bring his family from Panipat to Delhi. There undisputed facts lead to a conclusion beyond doubt that the respondents bona fide required the premises in dispute for their own residence and the residence of the members of the family dependent on them.'
A perusal of the said order, indicates that the learned Tribunal had discussed the evidence on the record and had attempted to reappraise the same. This was, however, impossible for the Tribunal to do in the absence of the records of the case of the Controller which bad not been made available to the Tribunal, unless the Tribunal picked up the statements contained in the order of the Controller under appeal. The judgment of thecourt of appeal is not expected to be a paraphrase or mechanical repetition of the judgment, reasons and findings of the trial court and it is the duty of the first court of appeal to apply its mind afresh to the questions raised before it and to appreciate the evidence relating to the same from the materials available on the record. The practice of paraphrasing the the judgment of the court of first instance without reference to the record is not desirable since the appellant is entitled to a rehearing of the case from the first court of appeal on questions of fact as well as law and satisfy the Court of appeal that the appreciation of evidence by the trial court was not correct, and even the admissions recorded there or inferences drawn from them were erroneous in the circumstances of the case. This could not possibly have been achieved without sending for original records of the case. Another aspect of the matter may not be lost sight of. It sometimes happens that counsel engaged to draft and file the appeal does not possess full and correct copies of the record of the case and he hurriedly drafts the grounds of first appeal from the impugned judgment. In these circumstances if the counsel is suddeny called upon to support the appeal without assistance of the record of the case by the Court, is likley to result in miscarriage of justice. In my opinion, the Tribunal was clearly in error in purporting to reappraise the evidence without calling for and perusing the records and its order cannot be allowed to stand. It is needless to emphasise that the Rent Controllers are not judges of small causes against whose orders no appeal has been provided but the law has made provision for one appeal to the Tribunal on facts as well as law and the scope of second appeals to the High Court has been severaly restricted to only substantial questions of law. Under the circumstances, it is of supereme importance that that Tribunal should devote great thought to the exercise of its discretion in affording an opportunity to the appellant to satisfy the Tribunal against the order of the Controller and give him a fair and substantial hearing by allow. ing him to point out the materials in support of his submissions from the original records of the case, unless the appellant has absolutely nothing to urge as a ground of appeal. Learned counsel for the appellant before me has invited my attention to an unreported judgment of Dua. C. J. (as his lordship then was) in S. A. 0. No. 104 of 1968 (Amar Nath v. Sub. Moj. Kirpal Singh decided on 13th May 1969 in which his lordship observed that to make an order of dismissals liming by purporting to rely on the evidence which was not before the Tribunal was an illegality which vitiated his order. In a criminal case in an unreported judgment Dnyanw Hariba Mali v. State of Maharashtra Criminal Appeal No 222 of 1970 decided on 10th March, 1970, the Supreme Court had an occasion to comment upon the undersieablity of dismissing arguable first appeals in liming. After I had prepared the judgment,.my attention was invited to astill unreported judgment of Deshpande, J. delivered in Second Appeal from order No. 358 of 1969 decided on 4th February, 1970 Banwari Lal v. Baltumal etc on the same point which has arisen before me and which did not prevail with his lordship. I have carefully perused the said judgment. There is nothing in this judgment to persuade me to take a.different view from the one I have taken. In that case, the learned Judge called upon the counsel to argue the question of fact and law which he might have urged before the Tribunal had the appeal not been dismissed in liming, but the learned counsel was unable to do so and he stated that be was not desirous of arguiny the appeal on merits, but confined his submissions purely to the questions of law. This is not the case in the appeal before me. I respectully agree with my brother Justice Deshpande in his observation that it is not a rule of thumb that the Tribunal must send for the records of the lower court in each and every case and if the appellants were not able to mak& any plausible argument against the corectness of the findings of the trial court there was nothing for which the appellate court could desire to call for the records. I further agree with him that on the plain language of the statute, the matter rests in the judicial discretion of the Tribunal which is to be exercised on sound legal principles on the facts and circumstances of case. However, I respctfully agree with the observations of Dua C. J. (as he then was) in Amar Nath v. Sub. Major Kirpal Singh (Supra) that the order of the Tribunal dismissing the appeal in liming by purporting to rely on the evidence which was not before it was an illegality vitiating the or der. In other words, I am of the view that if the lower appellate court is invited to appraise the evidence on the record and it purports to do so in an argnable case, the Tribunal must send for the records and appreciat the evidence from the original records and it is not legally permissible to it to determene the value the value, of the evidence by merely perusing the judgment of the Controller Under appeal or hearing the arguments of the counsel for the appellants' against the same. To do so would amount to gross violations of the principles of law and justice I would, however, add, as I have mentioned above, that in cases where the appellant does not urge any arguable point and the court thinks fit to dismiss the appeal on grounds either than appreciation of evidence, it would not be necessary to send for the records and the exercise of discretion by the Tribunal not to call the records in that case maybe justified but not so otherwise.
(8) As a result, I allow this appeal and set aside the order of the Rent Control Tribunal dated 13th November, 1967 and I remand the case to the Tribunal with a direction to send for the records of the case and hear the appellant in a support of the appeal and it would be in the discretion of the Tribunal whether to exercise its powers under Order 41, Rule Ii ofthe Civil Procedure Code to dismiss the appeal in liming or to send notice to the opposite party in the light of my observations. I am, thowever, experessing no opinion on the merits of the case. The appellant is directed to appear before the Tribunal on 14.7.70 There will be no order as to costs.