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Sanyukta Uppal Vs. Vidya Parkash - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 107D of 1966
Judge
Reported in7(1971)DLT366
ActsDelhi Rent Control Act, 1958 - Sections 38(1) and 38(2)
AppellantSanyukta Uppal
RespondentVidya Parkash
Advocates: S.N. Chopra,; Vijay Kishan and; F.C. Bedi, Advs
Cases ReferredShri Shikar Chand Jain v. Ravinder Kumar
Excerpt:
.....(2) of section 38 of the act, under which the tribunal has the discretion to entertain the appeal after the expiry of the period of limitation, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. the tribunal in fact, was satisfied that in the special circumstances of this case, the appellant was prevented by sufficient cause from filing the appeal in time......proceedings in the case. the respondent was neither aware of the date. may 31, 1965, nor of the date june, 4, 1965- the application filed on may 31, 1955 prayed for the striking out the respondent's defense. the order was, thereforee, intended to prejudicially affect the respondent. it was thereforee, incumbent on the additional controller to give to the respondent an opportunity of showing cause against the proposed order by serving him with a notice of the said application under the mandatory provisions of section 37 of the act no notice was, however, issued the prayer in this application for striking out the respondent's defense rested on the ground that he had failed to comply with the order of discovery of certain document. notice of this order for discovery served on the.....
Judgment:

P.N. Khanna, J.

(1) Smt. Sanyukta Uppal, appellant, is the landlady while Shri Vidya Parkash, respondent is the tenant. An application under clauses (e), (j) and (k) of the proviso to section 14(1) of the Delhi Kent Control Act. 1958, herein nailed 'the Act', was filed by the appellant for the respondent's eviction.

(2) On June 4, 1965 when the respondent tenant was not present and had not been served with a notice of that date, an order was passed un.der Order 11 Rule 21 of the Code of Civil Procedure, striking out his defense on the pica that he had failed to comply with an order for discovery of documents. The main case already stood adjourned to September 35, 1965, for the appellant's evidence. All the same ex parle evidence was recorded on June 5, 1965 ; and on June 7, 1965 an eviction order was passed against the respondent-tenant Election was taken out and on June 15,1965 when the Courts were closed for summer vacation, attempt was made to execute the said order, but without success. The Courts reopened on July 15, 1965 after the vacation. On August 6,1965, after obtaining necessary certified copies, an 'appeal was filed before the hint Control- Tribunal from the Additional Controller's 'order dated 7th June, 1965 which was based on order dated 4th June, 1&6S. This joint appeal was allowed and setting aside the two impugned orders, the case was remanded to the Additional Controller for decision according to law. In the present appeal, objection has been raised that although the appeal against the eviction order dated June 7, 1965 is within time, the appeal against the order dated June 4 1965 was beyond limitation. The Tribunal. erred; the appellant's learned counsel contended, in allowing it.

(3) The learned counsel for the respondent contended at the outset that the order dated June 4, 1905 striking out the respondent's defense was not an order under section 15 or any other provision of the Act, but was an order in consequence of an application said to be for discovery of documents, which infact was not even for that purpose. It was, thereforee, a purely procedural order and not appealable. It could be challenged in appeal against the final eviction order The question of limitation, thereforee, does not arise, as no appeal is required to be filed against such an order. The appellant's objection, thereforee, said the counsel, was of no consequence.

(4) Section 2 of the Act reads as follows ;- 'Appeal to the Tribunal-(1) An appeal shall lie from every order of the Controller made under this Act to the Rent Control 'Tribunal (hereinafter referred to as the Tribunal) consisting of one 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 tine.

(5) Under section 36 of the Act, the Controller has the powers as were vested in a civil court under the Code of Civil Procedure in respect of the discovery and production of documents, which would include the power of enforcing such orders, under Rule 21 of Order 11 of the Code of Civil Procedure by striking out, if necessary, the defense. Such order would, thereforee, be an order under under section 26 of the Act. Under Section 43 of the Act. every order under the Act made by the Controller is final and cannot be called in question in any original suit, application or execution proceedings. The order striking out the defense of the respondent seriously affects the rights of the respondent and has, thereforee, to be considered as final. It takes away the very right of defense. It is not a mere procedural order, in Central Bank of India Ltd. v. Gokal Chand. the Supreme Court observed :-'The object of Section 38 is to give a right of appeal to a party aggrieved by some order which effects his right or liability. In the text of Section 38(1) the word 'every order of the Controller made under this Act', though very wide, do not include interlocutory orders, which are merely procedural ar,d do not affect the rights or liabilities of the parties. In a pending proceeding' the Controller may pass many interlocutory orders under section 36 and 37 such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceedings they regulate the procedure only and do not affect any right or liability of the pirties. the legislature could not have intended that the parties would be harassed with endless and delay by appeals from Such procedural orders. It is open to any party to set forth the error defect or irregularity, is any, in such an order as a ground of objection in his appeal from the final order in the main proceedings. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by by the Controller under the Act Even an interlocutory order passed under Section 37(2) is an order passed under the Act and is subject to appeal under Section 38(1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside ex-parte order is subject to appeal to the Rent Control Tribunal'. The order striking out the defense, having serious effects on their respondent's rights is final and as was observed in Durga Sarwoop v. Murari Lal, the remedy of the aggrieved party lies in filing an appeal against it. It is thereforee, not an order, where the respondent could omit to file an appeal against it also see L, T. Thandani v Yogeshwar Dayal.

(6) The learned counsel for the appellant submitted that so far as the order dated June 4, 1965 striking out the respondents defense is concerned, the appeal from it could be filed within thirty days, which expired on July 4, 1965. The appeal was filed on August 6, 1965. Certified copy of the order was applied for on July 29, 1965 and received on July 30, 1965. Allowing these three days, the remain- ing thirty days delay in filing the appeal remained unexplained. The appeal to the Tribunal under section 38(2) of the Act has to be ''preferred within thirty days from the date of the order made by the Controller. This date in the present case being June 4, 1965. the limitation started running on that date. Relying on Shri Shikar Chand Jain v. Ravinder Kumar, the counsel urged that each days' d-lay has to be explained.

(7) The respondent's learned counsel, in reply contended that the limitation for the appeal commenced from the date of the knowledge of the order, which was July 15 1955 on the reopening of the Courts, when the file was inspected. The appeal filed on August 6,1965, it was contended, was. thereforee, within time.

(8) The appeal from the order of the Controller to the Rent Control Tribunal pan be preferred under sub-section(2) of Section 38 of the Act, within thirty days 'from the date of the order' made by the Controller, Under section 37 of the Act no order, which prejudicially affects any person can be made by the Controller under the Act without giving him a reasonable opportunity of showing cause against the order proposed to be made until his objections, if any, and any evidence he may produce in support of the same, have been considered by the Controller. A reading of these two sections together, makes it clear that the order can 'can made' by the Controller only after giving the aggrieved party a reasonable opportunity of showing cause against it. In other words such an order can be passed only after notice to the parties concerned. The expression ''from the date of the order' used in section 38(2), thereforee, means from 'the date of the order made after notice to the party concerned.'' The party concerned must have knowledge about the order, before it can be said to have been 'made.' This interpretation is in consonance with the generally accepted practice that the Court pronounces the judgment on a fixed date, of which due notice is given to the parties or to their pleaders (see Order 20 Rule 1 Code of Civil Procedure), where a date is fixed in a case to the knowledge of the party or advocate and on the adjourned date the party and its advocate are absent and the case is adjourned to a future date for judgment on which it is announced the party is still deemed to have notice of the date of the judgment. But if the party is never made without the issue of a notice, the party concerned cannot be said to have knowledge of the order. In order that the statutory right of appeal is not frustrated and rendered illusory, the party must be aware or in a position to be aware of the impugned order. If the party has no means of knowing the order, which prejudicially affects it, and the limitation is to start from the date of the making of the order, then the right of appeal given to the party concerned under a statute may be rendered meaningless, if the party concerned learns about it only after the period of limitation has already expired. The interpretation suggested by the learned counsel for the appellant thereforee, cannot be accepted. The thirty days time for preferring an appeal prescribed under section 38(2) of the Act, thereforee, starts from the date of the knowledge of the order by the aggrieved party concerned.

(9) In the present case the order for striking of d fence was passed on June 4, 1965 on an application filed on behalf of the appellant on May 31, 1965 which was not a date fixed in the proceedings in the case. The respondent was neither aware of the date. May 31, 1965, nor of the date June, 4, 1965- The application filed on May 31, 1955 prayed for the striking out the respondent's defense. The order was, thereforee, intended to prejudicially affect the respondent. It was thereforee, incumbent on the Additional Controller to give to the respondent an opportunity of showing cause against the proposed order by serving him with a notice of the said application under the mandatory provisions of section 37 of the Act No notice was, however, issued The prayer in this application for striking out the respondent's defense rested on the ground that he had failed to comply with the order of discovery of certain document. Notice of this order for discovery served on the respondent on May 25. 1965 was in respect of an application dated April, 30, 1965, copy of which and a list of the document, the discovery of which was sought, were not served on the respondent's counsel who was lying ill and had stated in his endorsement on the notice that he was not in a position to communicate with his client. In fact, there was no application bearing the date April, 31, 1965. The appellant's learned counsel conceded that it was a mistake for April 27, 1965. It is, thereforee, not a case where the respondent could be said to have failed to comply with any order to discover the document as contemplated by order Ii Rule 21. No proper notice of the order lor discovery can be said to have been served. It was, thereforee, necessary that the order striking out defense should have been communicated to the respondent. The right of appeal given to the respondent under section 38 of the Act could come into effect only from the date of his knowledge of the impugned order which in the present case was July 15, 1965, when he inspected the file after the reopening of the Courts. Before that date, the question of exercising the right of appeal against an order, about the existence of which he was not aware, would not arise. Limitation, thus started running only from July 15, 1965. The appeal filed on August 8, 1965 was, thereforee, within time.

(10) It is not necessary to consider the effect of the proviso to subsection (2) of section 38 of the Act, under which the Tribunal has the discretion to entertain the appeal after the expiry of the period of Limitation, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. The Tribunal in fact, was satisfied that in the special circumstances of this case, the appellant was prevented by sufficient cause from filing the appeal in time. The discretion exercised by the Tribunal, to entertain the appeal, after the expiry of the period of limitation in the peculiar circumstances of the case, when the order itself is without any basis, cannot be said to be erroneous. But this matter need not be dealt with in this appeal.

(11) The appeal. thereforee, his no merit and it is accordingly dismissed. There shall however, be no order as to costs.


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