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Kulwant Kaur Vs. Jiwan Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 91 of 1971
Judge
Reported inILR1972Delhi15
ActsDelhi Rent Control Act, 1958 - Sections 15(1); Limitation Act, 1963 - Sections 5; Punjab High Court Rules
AppellantKulwant Kaur
RespondentJiwan Singh
Advocates: M.C. Anand and; M.M. Singh, Advs
Cases ReferredIn Battoo Mal v. Rameshwar Nath
Excerpt:
(i) tenancy - barred by time - section 5 of limitation act, 1963 - tenant neglected to pursue copy application and failed to file certified copy within limitation - tenant cannot be excused by consideration such as lapse of copying branch - appeal before tribunal rightly held to be barred by time. (ii) jurisdiction - sections 14 (1) and 15 (1) of delhi rent control act, 1958 - controller not bound to try merits of case before passing order under section 15 (1) - failure of landlord to give valid notice to quit not a defect which deprives controller of jurisdiction to entertain application for eviction - failure of controller to decide issue finally before passing order under section 15 (1) does not vitiate order. - - the result is that it cannot be said that the copying branch has..........on it either by law or administrative instructions. the negligence of the tenant in pursuing the copy application and in failing to file the certified copy within limitation is not. thereforee, excused by any other consideration such as any lapse of the copying branch. the appeal before the tribunal was, thereforee, rightly held to have been barred by time. this finding is sufficient to dispose of this second appeal. (5) question no. 2 :- innumerous cases it is found that the controller and the rent control tribunal have taken the view that the order under section 15(1) can be passed against the tenant on a prima facie view of the case. as i have recently pointed out in prem sheel malhan v. kumari shanti sharma, (s.a.o. 363 of 1969 decided on 19-10- 1971) (5) there are two aspects of.....
Judgment:

V.S. Deshpande, J.

(1) On the application of the landlord Jiwan Singh (Respondent No. 1) for the eviction of the alleged tenant Kulwant Kaur (appellant) under section 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) the Controller passed an order under section 15(1) asking the appellant to deposit rent and arrears thereof on what he called a 'prima facie' view. The Controller did not decide finally either the objection to his jurisdiction raised by the tenant, namely, that the relationship between the parties was that of a mortgagee and mortgagor and not that of a landlord and tenant or the objection on merits, namely, that the notice to quit was not served on the tenant. The enquiry into both these objections is still pending with the Controller who has still to give his final findings on them. The appeal by the tenant against the order of the Controller passed under section 15(1) of the Act was dismissed by the Rent Control Tribunal firstly on the ground that the appeal was barred by limitation and secondly on the ground that even on merits the objections of the tenant were not prima facie maintainable.

(2) In this second appeal by the tenant, the following questions arise for decision, namely :--

(1 ) Whether the Tribunal was right in dismissing the appeal before it as barred by limitation and (2) If not, whether the Controller could pass the order under section 15(1) without finally deciding the question whether the petition for eviction was filed by a landlord against a tenant

(3) Both these questions have arisen often enough in this Court to justify a lull consideration.

(4) Question No. 1 :-

The order under section 15(1) was passed by the Controller on 23-4-1969. The appeal against that order was filed by the tenant on 22-5-1969, namely, a day before the expiry of limitation of 30 days for the appeal prescribed by section 38(2) of the Act, without a certified copy of the order appealed against. The first application for a certified copy of the order appealed against was made by the tenant on 30th April 1969. The copy was not prepared by the Copying Branch as the record was said to be in the appellate Court. The Courts, but not the Copying Branch, closed for summer vacation from 12-6-1969 to 14-7-1969. In her application to the Tribunal for condensation of delay, the tenant has stated that believing that the Copying Branch also was closed for summer vacation, she did not visit the Copying Branch till 14-7-1969. She then said that as the copy could not be prepared for want of record it was useless to make any further enquiries and to visit the Copying Branch for that purpose. She then lost the receipt given by the Copying Branch for having received the application for certified copy. The tenant tried to consult the lists displayed by the Copying Branch of certified copies ready for delivery but did not find any reference to the copy applied for by her. She found the receipt on 8th August 1969. 9th and 10th August 1969 were holidays and on 11th August 1969 she was informed that the Copying Branch had ordered the return of the application for the grant of certified copy. on 25-6-1969 on the ground that the record had been sent to the High Court. thereforee, the tenant made a second application for certified copy on 12-8-1969. She was informed that the copy was ready on 4-9-1969 and she took delivery of the copy on that date but filed a copy in the Court on 12-9-1969. The evidence given by the husband of the tenant in support of the application was in some respects contrary to his pleading. The Tribunal held that the husband of the tenant had no regard for truth as a witness and that no satisfactory reason was given by the tenant why she did not go to the Copying Branch to enquire about the copy from 24-6-1969 to 12-8-1969. It could not be said, thereforee, that the presentation of a valid appeal accompanied by a certified copy of the order appealed against within time was prevented by sufficient cause within the meaning of the proviso to section 38(2) of the Act.

Learned counsel for the appellant could not seriously contend that the tenant appellant was not negligent in pursuing, her application for a certified copy. The provisions of sections 5 and 12 of the Limitation Act do not apply to the proceedings before the Controller inasmuch as the provisions of the Limitation Act have. been held by the Supreme Court to apply only to Courts proper (Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli, : (1969)IILLJ651SC , and Nityannanda M. Joshi v. Life Insurance Corporation of India, : (1969)IILLJ711SC . The appellant cannot, thereforee, be said to have been prevented by a sufficient cause from filling the appeal in time within the meaning of the proviso to section 38(2) of the Act.

Learned counsel, thereforee, took his stand on the alternative ground that the Copying Branch had not complied with rules 24 and 25 of Chapter 17 of Volume Iv of the Rules and Orders of the Punjab High Court. The appellant should not be prejudiced by the non-compliance with these rules by the Copying Branch and on this ground alone the delay in filing the certified copy should have been condoned by the Rent Control Tribunal.

Rules 24 and 25 arc reproduced below:-

'24.( 1 ) A copy shall ordinarily be ready by the third working, day of the receipt of application, but an urgent copy shall be ready before the close of the same day. if possible, provided the application is presented with the urgent fee within the first two hours of the same day. If the application is presented later, the copy shall be furnished, if possible, in the forenoon of the following working day. Any case of delay shall be verified and certified by the Examiner, or Copying Agent, before the copy is attested and delivered. (2) Any complaint by Copyist or applicant shall be made in writing to the Officer-in-charge who shall take such action thereon as he may deem proper. 25. The applicant shall be entitled to have his copy furnished to him, as far as possible, on the day appointed for delivery of the copy. If. for any reasons, it is not possible to prepare the copy asked for by the appointed day the Officer-in-charge shall send an intimation by post to the applicant fixing another day for its delivery so that he does not unnecessarily visit the Agency.'

RULE24 lays down that a copy shall ordinarily be ready by the third working day of the receipt of application. Rule 25 requires that the applicant shall be entitled to have his copy furnished to him, as far as possible, on the day appointed for delivery of the copy. If this is not possible, then the Officer-in-charge of the Copying Agency shall send an intimation by post to the applicant fixing another day for its delivery so that the applicant does not unnecessarily visit the Copying Ageny. This procedure was undoubtedly not followed by the Copying Branch. The question is what is the effect of this non-compliance. These rules have been made by the High Court of Punjab under Article 227 of the Constitution with the previous consent of the Punjab State Government for regulating the preparation and supply of copies of records of civil and criminal Courts by the copying agencies under the control of the District and Sessions Judges and the Judge, Small Cause Court, Amritsar. Presumably, thereforee, they applied only to the subordinate Courts in the Punjab State. The subordinate Courts in Delhi were not governed by them For. Delhi was not a part of the Punjab State. The subordinate Courts in Delhi were under the Chief Commissioner and arc now under the Delhi High Court and the Administrator of Delhi, it is not shown that either the Administrator, Delhi, or the Delhi High Court have made these rules applicable to the subordinate Courts in Delhi or that they have framed any such rules themselves for application to the subordinate Courts in Delhi. Rules 24 and 25 have thus never been binding on the subordinate Courts at Delhi including the copying agencies functioning under the subordinate Courts. This was why Hardy, J. doubted the application of these rules to Delhi in Main Chand v. Sumat Prashad, 1969 D.L.T.51, and I had also occasion to point out in Ram Mahar v. Raghbir Singh, 1969 R.C.R. 576(1), that these rules were only administrative instructions so far as Delhi was concerned. But even as administrative instructions neither the High Court of Delhi nor the Administrator, Delhi has made them binding on the subordinate Courts at Delhi or on the copying agencies functioning under them. This explains why the copying agencies at Delhi are blissfully unaware of them and have never followed them. The result is that it cannot be said that the Copying Branch has failed to do any duty imposed on it either by law or administrative instructions. The negligence of the tenant in pursuing the copy application and in failing to file the certified copy within limitation is not. thereforee, excused by any other consideration such as any lapse of the Copying Branch. The appeal before the Tribunal was, thereforee, rightly held to have been barred by time. This finding is sufficient to dispose of this second appeal.

(5) Question No. 2 :-

Innumerous cases it is found that the Controller and the Rent Control Tribunal have taken the view that the order under section 15(1) can be passed against the tenant on a prima facie view of the case. As I have recently pointed out in Prem Sheel Malhan v. Kumari Shanti Sharma, (S.A.O. 363 of 1969 decided on 19-10- 1971) (5) there are two aspects of this question. The order under section 15(1) has to be passed before the defense of the tenant on the merits of the case is finally decided. The very object of section 15(1) is that pending the decision of the petition for eviction, the Controller must see that the tenant continues to pay rent to the landlord at the rate at which, it was last paid. But this pre-supposes that the order under section 15(1) is made in favor of the landlord and against the tenant. Two of the requirements of section 15(1) are, thereforee: ( 1 ) the relationship of landlord and tenant must exist between the parties, and (2) the arrears of rent must either be admitted or must be proved by the landlord before an order under section 15(1) can be made by the Controller against the tenant. In M. M. Chawla v. J. S. Sethi, : [1970]2SCR390 , the Supreme Court has held that if the tenant disputes the arrears of rent, the Controller must decide as to whether and what arrears of rent are payable by the tenant before he can order the tenant under section 15(1) to pay them. The Controller has thus to give a final finding. about the existence of the arrears before passing an order under section 15(1). H cannot pass such an order on a prima facie view. Similarly, the Controller cannot pass an order under section 15(1) on a prima facie view of the relationship of landlord and tenant. The Controller has no jurisdiction to pass the order unless he first definitively finds that the relationship of landlord and tenant exists between the parties. The consequences of the wrong practice followed by the Controller and the Rent Control Tribunal, as in the present case. are serious. A non-compliance with the order under section 15(1) by the tenant would be visited with the penalty of striking off the defense under section 15(7) which would result in the Controller passing an order for eviction against the tenant. If the Controller, thereforee, passes an order under section 15(1) without deciding the relationship between the parties and the non-compliance of this order results in the eviction of the tenant and if ultimately the Controller finds that the relationship did not exist between the parties, irreparable damage would have been caused to the tenant by being evicted from the premises by the Controller who did not have jurisdiction to pass the order under section 15(1).

Further, order passed by the Controller under section 15(1) without first determining whether the relationship of landlord and tenant exists between the parties would be in contravention of the fundamental provisions of section 15(1) itself which requires the existence of the relationship as a jurisdictional condition precedent to the exercise of the power by the Controller under section 15(1), Such an order would, thereforee, be without jurisdiction according, to the reasoning of the Supreme Court in Dhulabhai and others v. Slate of Madhya Pradesh. : [1968]3SCR662 . It is not possible, thereforee, to countenance the present practice followed by the Controllers and the Rent Control Tribunal that the order under section 15(1) can be passed without first determining the jurisdictional condition about the existence of the relationship of landlord and tenant between the parties. It is to be noted that the Controller has only to determine such a jurisdictional condition before passing order under section 15(1). The consideration of other questions relating to the merits of the case must be postponed for decision after passing the order under section 15(1).

(6) The other defense of the tenant that the notice to quit was not validly served on him related to the merits of the case. The Controller was not bound to try the merits of the case before passing an order under section 15(1). In Battoo Mal v. Rameshwar Nath, 2nd (1970) 1 Delhi 748(8'). we have pointed out that the failure of the landlord to give a valid notice to quit is not a defect which deprives the Controller of his jurisdiction to entertain the application for eviction. The failure of the Controller to decide that issue finally before passing the order under section 15(1) did not, thereforee, vitiate the said order.

(7) In view of the finding on the first ground, however, this appeal is dismissed but without any order as to costs.


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