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Som Nath Raina Vs. Kirpa Ram Bhateja - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 295 of 1977 and Civil Revision Appeal No. 861 of 1977
Judge
Reported in16(1979)DLT327
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantSom Nath Raina
RespondentKirpa Ram Bhateja
Advocates: S.L. Watel,; J.P. Gupta and; S.M. Grover, Advs
Cases ReferredAjudhia Pershad Etc. v. Chief Commissioner Delhi Etc.
Excerpt:
.....leave to contest the landlord's petition along with an application for condensation of delay. the rent controller dismissed the tenant's application for condensation of delay and consequently the application for leave to defend. at the same time, the rent controller also dismissed the landlord's eviction petition on the ground that the necessary averments regarding the service of notice of termination of tenancy were not in the petition. from the order rejecting his petition, the landlord filed and appeal to the rent controller tribunal. the rent control tribunal accepted the appeal and directed the eviction of the petitioner as contemplated by section 25b(4). against the said order of the rent control tribunal, the tenant filed the instant second appeal. the tenant also filed the..........for condensation of delay in the filing of the application. (3) all the matters came up before the rent controller on the 12th november, 1976. the learned rent controller dismissed the application for condensation of delay on the ground that the provision of the limitation act had no application. consequently the tenant's application for leave to defend was also dismissed. but the landlord's eviction petiion was not allowed in view of a curious circumstance. the learned rent controller noticed on a perusal of the petition that the necessary averments regarding the service of a notice termination of tenancy were not in the petition and found tha' the petition was thereforee defective and incomplete. he rejected the petition instead of ordering eviction of the tenant. (4) from the order.....
Judgment:

S. Ranganathan, J.

(1) In my opinion the second appeal has to be allowed as the issue raised is fully covered by the decHc'n of Avadh Behari-J. in R. K. Pareekh v. Uma Verma 1978 (2) lkt CJ 423. In that view the civil revision does not survive for consideration and is liable to be dismissed.

(2) It is necessary to state a few brief facts. The respondent landlord filed a petition against the present petitioner/appellant seeking the eviction of the latter under the terms of the proviso to clause (e) of sub-section I of Section 14 of the Delhi Rent Control Act. The application was dealt with in accordance with the procedure specified in Section 25B of the Act introduced by the amendments of 1975-76. Summons was issued in the form specified in the third schedule to the tenant and served on him on 21st October, 1976. He had to file his application for leave to contest the landlord's petition in the appropriate manner specified in the section on or before 5th of November, 1976. But this application was actually filed on 11th November, 1976 for certain reasons which need not be detailed here. Along with this application the tenant also prayed for condensation of delay in the filing of the application.

(3) All the matters came up before the Rent Controller on the 12th November, 1976. The learned Rent Controller dismissed the application for condensation of delay on the ground that the provision of the Limitation Act had no application. Consequently the tenant's application for leave to defend was also dismissed. But the landlord's eviction petiion was not allowed in view of a curious circumstance. The learned Rent Controller noticed on a perusal of the petition that the necessary averments regarding the service of a notice termination of tenancy were not in the petition and found tha' the petition was thereforee defective and incomplete. He rejected the petition instead of ordering eviction of the tenant.

(4) From the order rejecting his petition the landlord filed an appeal to the Rent Control Tribunal. By an order dated 11th October, 1977 the Rent Control Tribunal accepted the appeal, found the application for eviction to be complete and since it found that the tenant had not been granted leave to defend directed the eviction of the petitioner as contemplated in Section 25B(4).

(5) It is against this order of the Rent Control Tribunal that the tenam has filed the second appeal. It will be appreciated that at the time the Rent Controller passed his order the tenant had not been prejudiced' by the order refusing him leave to contest the application for eviction. So apparen'ly he took no action to agitate against that order. However when the Tribunal passed the order accepting the appeal of the landlord it became necessary for the tenant to displace the order of the Rent Controller dated 12'h November, 1976 dismissing his application under Section 5 of the Limitation Act and refusing him leave to defend the landlord's eviction petition. This the tenant has attempted to do by filing C.R. 861 of 1977.

(6) The short point made by Shri S. L. Watel appearing for the petitioner/appellant which in my opinion has to be accepted (rendering it unnecessary to decide the other questions) is that the appeal preferred by the landlord to the Rent Control Tribunal was itself incompetent. According to the learned counsel, on a proper interpretation of Chapter III-A of the Act (introduced by the amendments of 1975-76) in the context of the object of introducing these special provisions, the normal remedy of appeal against the orders of the Controller provided for in Section 38 of the Act does not have any application to orders under S. 25B and is in fact totally inconsistent with the provisions of Chapter III-A and cannot prevail in view of the specific provision contained in Section 25A of the Act.

(7) It is unnecessary to discuss the matter elaborately because as I have already mentioned the matter has received very careful and exhaustive consideration at the hands of Avadh Behari J. in the judgment already cited. Learned counsel for the landlord sought to distinguish the above judgment on the ground that in that case the learned Judge was concerned with the appealability of an order passed by the Additional Rent Controller by which he granted leave to the tenant to defend the landlord's eviction application and the landlord had sought to get this order set aside by preferring an appeal. He points out that the Ld. Judge was not concerned with the final order on the eviction apphcation as in the present case but only with an interim order. In my opinion this ground of distinction is unsustainable. It is no doubt true that the order sought to be appealed against in the case before the Id. Judge was the interim or the preliminary order by which the tenant was granted leave to defend but even against such an order S. 38 provides for an appeal and despite such provision the Id. Judge held that no appeal could be maintained because to apply the provisions of S. 38 to the orders passed under S. 25B would be totally contrary to the provisions of S. 25A and to the objects intended to be achieved by the legislature in enacting these provisions. Learned counsel also faintly suggested that an appeal to the Tribunal against the order granting leave to defend was in any event not available under Section 38 because it was only an in erim order. He referred to the decision of the Supreme Court in Central Bank of India v. Gokal Chand, 1967 Delhi LT1 . In my opinion this decision is not applicable to such orders. The language of Section 38 is very wide and it confers a right of appeal in respect of all orders passed by the Rent Controller. The limitation placed by the Supreme Court in the decision referred to is only that the terms of this section 'though very wide do not include interlocutory orders which are merely procedural and do not affect the rights and liabilities of the parties'. An order of the Controller granting or refusing to grant a tenant leave to contest the eviction application is not a purely procedural order. It affects the rights of the parties vitally. If leave to defend is not granted the tenant will have to suffer an order of immediate eviction. If on the other hand leave is granted the landlord will be deprived of his valuable right of getting an order of eviction without any further trial and processual delays. I may further point out that if the position were as simple as suggested by the learned counsel the appeal in the case considered by the learned Judge would have been held to be non-maintainable on the very short ground now put forward and it would have been unnecessary for the learned Judge to consider the scope of Section 38 in the context of Chapter III-A of the Act.

(8) It also appears to me that the above construction is clear from the language of Section 25B(8) itself. It is no doubt true that the main part of this sub-section only bars an appeal from an order of recovery of possession of any premises made by the Controller in accordance with the procedure prescribed in the Section. This cannot however mean that every order other than this will be appealable if we properly construe the main portion of the section and read it carefully along with the proviso. Where an application for eviction is filed the Rent Controller may do any one of the following things: (i) he may reject the application as not maintainable (ii) he may admit the application but may not grant leave; (iii) he may grant leave to the tenant to defend, (iv) he may pass an order of eviction; (v) he may refuse to pass an order of eviction and dismiss the application ; (vi) he may reject the application as in the present case after notice though he could have done so even at the outset. But in all these cases the Rent Controller is to act under Section 25B of the Act and an order passed by him whatever may be its nature would be an order passed under Section 25B. The terms of the proviso to Section 25B(8) are clear that it is open to an aggrieved party to apply to the High Court for revision of any order made by the Controller under this section. In other words, even a landlord aggrieved by an order rejecting his petition is certainly entitled to go to the High Court by way of revision. If this be the correct construction of the proviso as I think it is, then it is obvious that the legislature could not have intended a double remedy to the landlord by way of appeal and second appeal and also by way of revision. This is also one more reason why the proviso as well as the main part of Section 25B should be read together harmoniously and should not be construed as meaning that an order dismissing an eviction petition would be appealable under the Act. That a right of appeal cannot be implied in such circumstances as this is also clear from the decision of the Punjab & Haryana High Court in Ajudhia Pershad Etc. v. Chief Commissioner Delhi Etc. 1960 57 P.L.R. 172. In that case, the statute specifically provided in S. 20 for an appeal by a landlord from an order of the Competent authority refusing to grant permission to him to initiate proceedings to evict his tenant. It was sought to be contended that even a tenant could prefer an appeal where the permission to evict was granted because S. 30 of the Act was widely worded to permit an appeal against any order of the Competent Authority. But such a construction was negatived and it was held that the intention of the legislature was only to provide for an appeal against the order refusing to grant permission. It seems to me, likewise, that S. 38 of the Delhi Rent Control Act cannot be interpreted as permitting an appeal by the landlord from the order dismissing the eviction petition in the face of the provisions contained in Section 25A and 25B of the Act.

(9) Sri Grover next contended that the appeal filed by the present ' tenant before the High Court is not competent because it is directed against an order of eviction passed by the Rent Control Tribunal and according to him such an order of eviction is only liable to be revised under the proviso to Section 25B(8). I am unable to accept this argument. If the appeal to the Rent Control Tribunal was competent under Section 38 of the Act (and it is on this assumption that the Tribunal has disposed it of), the order passed by the Tribunal is under Section 38 of the Act and Section 39 of the Act clearly provides a right of appeal from such an order. The prohibition contained in Section 25B(8) is only where an order of eviction is passed by the Rent Controller. The general principle that an appeal is only a continuation of the original proceedings cannot be so construed as to lead to the result that the order passed by the Rent Control Tribunal can be treated as an order of eviction by the Rent Controller within the meaning of Section 25B(8) of the Act. Moreover the construction contended for by the learned counsel would lead to an anamalous result. It would mean that if in the present case the landlord had failed before the Tribunal then on the language of Section 39 the landlord would have had a right of appeal to the -High Court. To say chat in respect of the same appeal before the Tribunal one party will nave a right of appeal but not the other would be a wrong interpretation of the Statute, unless there is a specific statutory provision to that effect. For the above reasons I am of opinion that the contention of the learned counsel for the appellant that the order of the Rent Control Tribunal was coram non judice has to be upheld. Since the order is a nullity it is formally set aside, and the present appeal is allowed. Since the contest has been on an arguable proposition I award no costs in the second appeal.

(10) In view of the decision on the Second Appeal learned counsel for the petitioner does not find it necessary to urge the contentions in the Civil Revision. The Civil Revision has thereforee become infructuous and is thereforee dismissed. There will be no order as to costs in the C.R. as well.

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