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Prabhati Vs. Budho Devi Etc. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 101 of 1973
Judge
Reported in1973RLR672
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantPrabhati
RespondentBudho Devi Etc.
Advocates: M.L. Chhibbar and; Mohd. Mian, Advs
Cases ReferredUrmila Rani v. Savitri Devi
Excerpt:
.....of its jurisdiction or otherwise not according to the provisions of the act. (16) the impugned orders of the controller were clearly beyond the scope of his jurisdiction as has been pointed out above and no finality could, thereforee be attached to these orders and the appellant would be entitled to assail these orders in the appeal against the final order notwithstanding the bar of section 43 of the act and the conclusion of the controllerr to the contrary is clearly wrong in law. (19) this case is clearly distinguishable because the order striking off the defense of the appellant in that case was apparently an order which was within the jurisdiction of the controller and no contention was raised on behalf of the appellant that such an order was without jurisdiction or contrary to..........by collateral means. the learned judge noted that there was no contention in that case that the rent controller had no jurisdiction to make an order under section 15(1) of the act. this authority would, thereforee, be clearly distinguishable because such a finality could not be attached to an order which was without jurisdiction or contrary to law. (23) in sanyukta uppal v. shri vidya prakash 1972 r.c.r. 168, a single judge of this court was concerned with a situation in which an unsuccessful tenant had challenged an order of eviction as also an earlier order striking off his defense in a joint appeal before the rent control tribunal which was allowed and the contention raised before the learned judge was that while the appeal against the final order of ejectment was within time, the.....
Judgment:

H.L. Anand, J.

(1) By this Second Appeal the appellant, who was defendant in the proceedings filed by the respondents for his ejectment challenges the order of the Rent Control Tribunal by which the Tribunal has confirmed in appeal the order made by the Controller for the eviction of the appellant from the premises in dispute.

(2) The appellant has been in occupation of the demised premises as a tenant and was served with a notice of February 17, 1969 on behalf of the respondents terminating the tenancy of the appellant and requiring him to pay the arrears of rent due until February 12, 1969. The notice was eventually exhibited as Ex. AW3/1 in the proceedings tiled by the respondents on May 4, 1971 seeking ejectment of the appellant inter alia, on the ground that the appellant had been guilty of non-payment of rent and that a sum of Rs. 208.00 was due from the appellant for the period December 13, 1969 to April 12, 1971. There was, however, no averment in the petition for eviction that the appellant had failed to make the payment of any rent after the notice of demand as envisaged by Section 14(1)(a) of the Delhi Rent Control Act, 1958. With the petition, however, a copy of the notice referred to above was enclosed. The ejectment was also sought on the ground of bonafide need of the respondents who claimed to be the owners of the property in dispute.

(3) By an order made by the Controller on August 24, 1971 under Section 15(1) of the Act, the appellant was required to deposit rent every month, and on the appellant's committing default in that, the defense of the appellant was struck off by an order made by the Controller on June 3,1972. In reply to the application for striking off of the defense, the appellant had set up a plea that the delay in the deposit was on account of the illness of the appellant. The Controller, however, found that there was delay in the deposit which he had no power to condone and the defense of the appellant was accordingly struck off as a result of which by an order made on 13-7-72, the eviction of the appellant was ordered on the ground that the premises in dispute were bonafide required by the respondent. This order of the Controller was challenged in appeal before the Rent Control Tribunal but the order of eviction was upheld. Before the Tribunal the appellant having failed to challenge the order in an appeal against the said order, it had become final and could not be assailed in the appeal against the final order of ejectment and reliance for this proposition was placed on Durga Swaroop vs. Murari Lal 1964 P. L. R. 586, Urmila Rani vs. Shrimati Savitri Devi 1970 (2) R.C.R. 763, L. T. Thadani vs . Yogeshwar Dayal : 7(1971)DLT275 , Sanyukta Uppal vs. Vidya Prakash 1972 R.C.R. 168 and Hukam Chand vs. Smt. Khushalya Devi S.A.O. 131 of 1969 decided on Aug. 25, 72. The plea of appellant that there was sufficient cause for delay in making the deposit because the appellant was ill, was dispelled on the ground that the nature of the illness had not been given in reply to the application under Section 15(7) of the Act nor in the application for condensation of delay and no medical certificate had been filed and that the plea was very vague. The findings of the Controller that the respondent bonafide required the premises for their residence and were owners were upheld.

(4) Aggrieved by the aforesaid orders, the appellant filed the present Second Appeal and the principal contention urged on behalf of the appellant was that the impugned orders for the ejectment of the appellant was liable to be set aside as the orders made by the Controller on August 24, 1971 under Section 15(1) of the Act and on June 3, 1972 under Section 15(7) of the Act were without jurisdiction and that the Rent Control Tribunal erred in his conclusion that the order made on June 3, 1972 could not be assailed in the appeal before him.

(5) Section 14(1)(a) of the Act provides that the Controller may on an application made to him in the prescribed manner make an order for the recovery of possession of the premises 'if the tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882.'

(6) It is thus clear that the cause of action for an application for ejectment on the ground of non-payment of rent is not merely a nonpayment of any rent but non-payment by the tenant of such arrears of rent in respect of which a notice of demand was served on the tenant and a period of two months had expired from the dale on which such notice was served on the tenant, In the present case, there was at no stage any averment in the application that rent which was claimed to be in arrears ever formed subject matter of a notice of demand and no notice was even mentioned in the application and the one that was enclosed with the application claimed rent for the period up to February 12, 1969 which according to the application itself had already been paid when the application was made because the grievance in the application was that the appellant had not paid rent for the period from December 13, 1969 till April 12, 1971 in respect of which no notice of demand had admittedly been given. That being so, the application did not disclose any cause of action for ejectment on the ground of nonpayment of rent as envisaged by clause (a) of proviso to Sub Saction (1) of Section 14 of the Act and the application of the respondents for the ejectment of the appellant on the said ground was, thereforee, liable to be rejected.

(7) If that be the true effect of the allegations in the application for ejectment and the true meaning of the provision of Section 14(1)(a) of the Act, it is difficult to conceive how an order under Section 15(1) of the Act could possibly be made by the Controller and how the Controller got jurisdiction to make such an order in the present case.

(8) Section 15(1) of the Act provides that in every proceeding for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub-section (1) of Section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, the arrears of rent and subsequent rent by the fifteenth of each succeeding month.

(9) The foundation for an order under section 15(1) of the Act is the claim for recovery of possession on the ground specified in clause (a) of the proviso to sub-section (1) of Section 14 of the Act and where the application does not disclose a cause of action for ejectment on the ground set out in clause (a), the Controller would have no jurisdiction to make such an order and any order made by the Controller in the absence of averment which may attract clause (a) would be in excess of jurisdiction.

(10) If the order made under Section 15(1) of the Act is without jurisdiction, it obviously follows that no effect could be given to it nor could the provisions of sub-section (7) of Section 15 be attracted and any order made in that situation under sub-section (7) of Section 15 of the Act would be equally without jurisdiction.

(11) The impugned order directing the ejectment of the appellant was in turn based on the aforesaid two orders and that being so, it would not survive if the aforesaid orders are held to be without jurisdiction because the impugned orders could not nave been mode if the earlier orders had not been in existence because then the appellant would have been entitled to participate in the proceedings to set up his defense and to re-inforce it by such evidence as may be available to the appellant.

(12) Faced with this difficulty, learned counsel for the respondent contended that:

(A)the orders of the Controller under Section 15(1) and 15(7) of the Act having not been challenged in any earlier proceeding had become final and could not be challenged by virtue of the provisions of Section 43 of the Act notwithstanding the provisions of Section 105 of the Code of Civil Procedure ;

(B)the order of the Controller under section 15(1) of the Act could in any event be justified under sub-section (2) of Section 15.

(13) In support of his first contention, learned counsel for the respondent relied on Durga Swaroop v. Murari Lal 1964 P.L.R. 586, Urmila Rani v. Savitri Devi 1970( 2) R.C.R. 763, L.T. Thadani v. Yogeshwar Dayal : 7(1971)DLT275 , Sanyukta Uppal v. Vidya Prakash 1972 R.C.R. 168 and Hukam Chand v. Kaushalya Devi S.A.O. 131 of 1969 decided on August 25, 1972. It appears that respondent's contention must fail.

(14) Section 43 of the Act gives finality to an order made by the Controller or an appeal under the Act and provides that none of the orders could be called in question in any original suit, application or execution proceedings.

(15) It is well settled that the finality provided fur by such provisions gives protection only to such orders as are made in accordance with the Act and within the jurisdiction of the authorities and does not extend to orders which are either ultra virus the powers of the authorities and beyond the scope of its jurisdiction or otherwise not according to the provisions of the Act.

(16) The impugned orders of the Controller were clearly beyond the scope of his jurisdiction as has been pointed out above and no finality could, thereforee be attached to these orders and the appellant would be entitled to assail these orders in the appeal against the final order notwithstanding the bar of Section 43 of the Act and the conclusion of the Controllerr to the contrary is clearly wrong in law.

(17) The cases relied upon on behalf of the respondents and from which the Rent Control Tribunal also sought support do not appear to be of any assistance to the respondents.

(18) In the case of Shri Durga Swaroop v. Murari Lal, 1964 P.L.R. 586, a Single Judge of the Punjab High Court held that where an order striking off the defense of a respondent was made in proceedings under the Delhi Rent Control Act, 1958, the remedy of the aggrieved party lay in filing an appeal against that order and where no such appeal was filed, the order became final and could not be challenged in an appeal against the final order of eviction. The contention of the appellant that in view of the provisions of Section 105 of the Code of Civil Procedure, the illegality or correctness of the order striking off the defense could be made a ground of appeal against the final order of eviction was, however, dispelled on the ground that Section 105 of the Code of Civil Procedure would not be attracted because Section 43 of the Act would appear to be a provision to the contrary.

(19) This case is clearly distinguishable because the order striking off the defense of the appellant in that case was apparently an order which was within the jurisdiction of the Controller and no contention was raised on behalf of the appellant that such an order was without jurisdiction or contrary to the provisions of the Acts and thereforee, beyond the ambit of the provisions of Section 43 of the Act which gives finality to the orders, as appears to be the position in the present case.

(20) In the case of Urmila Rani v. Savitri Devi 1970 R.C.R. 763, a Single Judge of this Court relying on the above decision of the Punjab High Court held that if an order striking off the defense was not challenged in appeal against it, it became final under Section 43 of the Act and could not be made a ground of attack in the appeal against the final order of eviction.

(21) It may, however, be pointed out that in the above case, it was not disputed that the order striking off the defense was an order made in accordance with law and could not be said to be either without jurisdiction or contrary to the provisions of the Act and the decision would to that extent the distinguishable in as much as the finality provided by Section 43 of the Act would not extend to an order which was without jurisdiction or contrary to the provisions of the Act,

(22) In the case of L.T. Thadani V. Yogeshwar Dayal : 7(1971)DLT275 , a Single Judge of this Court held that once an order had been made under Section 15(1) of the Act, the same could be set aside only in an appeal against that order and could not bs challenged by collateral means. The learned Judge noted that there was no contention in that case that the Rent Controller had no jurisdiction to make an order under Section 15(1) of the Act. This authority would, thereforee, be clearly distinguishable because such a finality could not be attached to an order which was without jurisdiction or contrary to law.

(23) In Sanyukta Uppal V. Shri Vidya Prakash 1972 R.C.R. 168, a Single Judge of this Court was concerned with a situation in which an unsuccessful tenant had challenged an order of eviction as also an earlier order striking off his defense in a joint appeal before the Rent Control Tribunal which was allowed and the contention raised before the learned Judge was that while the appeal against the final order of ejectment was within time, the one against the earlier order striking off the defense was beyond limitation and the Tribunal was in error in allowing it. defense of the tenant had been struck off on the plea that he had failed to comply with an order made by the Controller for the discovery of certain documents and a contention was raised before the learned Judge that this was, thereforee, not an order under Section 15 or under any other provision of the Act and was, thereforee, not appealable and could be challenged in appeal against the final order of eviction and the question of limitation would, thereforee, not arise as no appeal against such an order could have been filed. This contention of the tenant was dispelled and it was held that the order striking off the defense had serious repercussions on the tenant's right and was appealable under Section 38 of the Act and that it was 'final and as was observed in Durga Swaroop V. Murari Lal 1964 P.L.R. 586, the remedy of the aggrieved party lies in filing an appeal against it.'

(24) In this case also, the question whether the order striking off the defense under Section 15 of the Act or otherwise was or was not within jurisdiction and contrary to the Act was not involved and this decision is clearly distinguishable.

(25) In Hukam Chand V. Smt. Kaushalya Devi Sao 131/69, decided on August 25, 1972, the Hon'ble Chief Justice of this Court repelled the contention raised on behalf of the appellant that the appellant was entitled to challenge an order made under Section 15(1) of the Act in the appeal against the final order of eviction. The order made under Section 15(1) in that case was claimed on behalf of the appellant to be illegal and no contention was raised that the order was either beyond jurisdiction of the Controller or otherwise, contrary to the provisions of the Act. The decisions referred to hereinbefore were relied upon in support of the conclusion.

(26) It is thus, clear that in none of these cases, there was any question as to the jurisdiction of the Controller to make order which were said to have become final so as to protect them from any challenge in an appeal against the final order of eviction. In the present case, however, no finality could be attached to the orders because they were orders which could not be made under the Act and were, thereforee, beyond the jurisdiction and contrary to the provisions of the Act and the provisions of Section 43 of the Act would, thereforee, not stand in the way of these being assailed in the appeal against the final order of eviction as these orders are clearly beyond the ambit of the protection provided by the section.

(27) Even otherwise it appears to me that the question whether an interlocutory order under Section 15(7) of the Act which had not been challenged in an appeal against it could be legitimately made a ground of attack against the final order of eviction based on it is cot free from difficulty and there is considerable force in the contention that the finality provided in Section 43 of the Act could not operate so as to constitute a bar to such am order being challenged in the proceedings under the Act by way of Appeal or Second Appeal against the final order or otherwise exclude the operation of S. 105 of the Code of Civil Procedure and I say so with great respect to the learned Judges whose decisions have been referred to above.

(28) Ordinarily, in the view that I am inclined to take of the correct interpretation and true scope of the provisions of S. 43 of the Act and its impact on the provisions of S. 105 of the Code of Civil Procedure I would have, having regard to the dictum of the S.C. in that behalf and the requirements of judicial propriety, requested my Lord the Chief Justice to refer the question to a larger Bench but I refrain from pursuing the matter further because it is sufficient for the decision of the present appeal to say that all these decisions are distinguishable for the reasons that I have already indicated and it is unnecessary to consider the larger question for the purpose of the present proceedings.

(29) The second contention of the respondents that the impugned orders of the Controller under Section 15(1) of the Act, though without jurisdiction under the said provisions, could nevertheless be justified with reference to the provisions of sub-section (2) of Section 15, does not appear to be tenable because in the first instance, in making the order, the Controller had clearly invoked the provisions of Section 15(1) of the Act, on the assumption that the application disclosed a cause of action for ejectment on the grounds envisaged by clause (a) of proviso to sub-section (1) of Section 14 of the Act, and in the second instance, there is a two fold distinction between the provisions of Section 15(1) and 15(2) of the Act in as much as an order under Section 15(1) of the Act could be made suo moto while one under Section 15(2) of the Act, could be made only on an application of the petitioner and while there is a mandatory duty to make an order under Section 15(1) of the Act, the order under Section 15(2) of the Act is purely discretionary and this is clear from the phraeology of the two sub-sections, While Section 15(1) uses the phrase 'shall', the corresponding word in Section 15(2) is 'may' and it is difficult to whether if called upon to make the order in the present case under Section 15(2) of the Act, the Controller would have exercised the discretion in favor of the appellant or not and as to what form the order would have taken. It is, thereforee, not possible to substitute in the impugned order the provisions of Section 15(2) for Section 15(1) or to seek a justification for the order under Section 15(2) of the Act or to attempt to validate an order which was clearly in excess of jurisdiction.

(30) In the result, the impugned order of the Tribunal upholding the order of the Controller for the eviction of the appellant as also the orders of the Controller made under Section 15(1) and Section 15(7) of the Act must be set aside and the proceedings remanded to the Controller for trial and decision according to law from the stage before the order under Section 15(1) of the Act was made and 1 direct accordingly. (P. Paul Singh, Adv.)


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