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Aggarwal Hardware Works Private Limited Vs. C.V.S. Vasantha - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 191 of 1981
Judge
Reported in22(1982)DLT230
ActsDelhi Rent Control Act, 1958 - Sections 38; Delhi Rent Control Rules, 1959 - Rule 23
AppellantAggarwal Hardware Works Private Limited
RespondentC.V.S. Vasantha
Advocates: P.N. Lekhi,; K. Sawhney and; M.L. Kapur, Advs
Cases ReferredThe Central Bank of India Ltd. v. Gokal Chand
Excerpt:
it was ruled that the power of review, conferred by the provisions of order 47 of the civil procedure code, 1908, would be applicable to rent control tribunal, even after the disposal of appeal filed under section 38 of the delhi rent control act - further, in view of rule 23 of the delhi rent control rules, the order 47 of the code, had become a part of the act - - the learned tribunal further held that ordinarily he would not have revised his previous order because this fact is being pointed out in the application for review but since the mistake is apparent on the face of the record, there was no ground as to why trial should again go into the same fact, and learned trial court will do nothing better than to simply read original application under section 21 of the act and thus the..........control tribunal shall, as far as possible, be guided by the provisions contained in the code of civil procedure, 1908.'it will be noticed that this provision, where a matter of procedure is not provided for in the act, makes the provisions of the code of civil procedure applicable both to the controller and the rent control tribunal. effect of the aforesaid provisions like rule 23 of the rules in that any matter relating to procedure where the act is silent, the provisions of the code of civil procedure have been written with pen and ink in the act itself. under section 38 of the act, where power is conferred on rent control tribunal to entertain an appeal from every order of the controller, under sub-section (3) of section 38 of the act, it is provided that tribunal shall have all.....
Judgment:

Yogeshwar Dayal, J.

(1) This appeal is directed against the order dated 27th March, 1981 passed by learned Rent Control Tribunal, Delhi reviewing his earlier order dated 4th November, 1980. By the impugned order passed on 27th March, 1981, the learned Rent Control Tribunal reviewed its earlier order of remand to the trial court for recording evidence and determination of the question as to whether the permission under Section 21 of the Rent Control Act was accorded in accordance with law and dismissed the appeal.

(2) The relevant facts of the case are that the respondent had let out the property in dispute to the appellant after obtaining permission of the trial court under Section 21 of the Delhi Rent Control Act, 1958 (hereinafter referred to 'Act') for a period of two years. After the expiry of period of two years, respondent put in application for delivery of possession. On this application, a notice was sent to the appellant who in reply to the said application asserted that the provisions of Section 21 of the Act were not complied with in asmuch as it was not explained in the application under Section 21 of the Act as to why property was not required by the respondent/landlord for a limited period for which it was being let out. The application for delivery of possession was also contested on another plea which is not relevant for the purpose of present appeal.

(3) Learned trial court vide the order dated 25th July, 1980 dismissed the objections holding that Section 21 of the Act was complied with when the initial permission for letting was granted by the court and directed the issue of warrant of possession.

(4) Aggrieved by the said order of the trial court dated 25th July, 1980, the appellant filed an appeal before the Rent Control Tribunal. One of the points urged before the Rent Control Tribunal on behalf of the appellant was that the appellant should have been given an opportunity to lead evidence because the appellant had taken up plea that respondent did not require the property and it was not disclosed as to why the property was being let out to him for a limited period when the application was filed under Section 21 of the Act. In support of his case, the appellant relied upon a decision of Sultan Singh, J. in D.N. Vohra v. Agyawanti, : 18(1980)DLT268 wherein Sultan Singh, J. had taken the view that when a landlord applies for permission to let the property under Section 21 of the Act, he must disclose as to why the property is not required by him for a limited period for which permission is sought for letting out the property. Learned Rent Control Tribunal, in view of this decision of Sultan Singh, J. took the view that this question would certainly require evidence as to whether on that ground the permission was validly granted and whether the respondent did not require the property when permission was granted and with these observations the learned Rent Control Tribunal accepted the appeal and remanded the case to the trial court for granting the parties an opportunity to lead evidence with respect to the facts in dispute referred to earlier.

(5) This order of remand was passed by the Tribunal on 4th November, 1980. On or about 10th November, 1980, respondent filed an application for review of the aforesaid order of the Tribunal dated 4th November, 1980. In this application for review, it was averred on behalf of the respondent that the Rent Controller, Delhi had by order dated 27th July, 1977 granted permission for letting out the premises in dispute for a period of two years from 1st August) 1977 to 31st July, 1979 and it was stated in the application under Section 21 of the Act on behalf of the landlord, that the same were not required for her residence as she had retired from service as professional artist and dancing teacher in Delhi and proposed to take rest for a period of two years at Madras with her sister, and it was thus averred in the review application that even this essential ingredient (even if it is assumed to be essential ingredient) is alleged in the application for grant of permission under Section 21 of the Act and thereforee, no question arose at this stage of leading any evidence and it has escaped attention of the learned Rent Control Tribunal when he did not refer to the original application for grant of permission. It was also pointed out in the review application that this fact was also brought to the notice of the Tribunal but since the original file of the Rent Controller by which the permission was granted to let was not before the court, the court by mistake accepted the plea of the appellant and remanded the case for further inquiry. It was submitted that this was an error apparent on the face of the record and had the original file granting permission under Section 21 of the Act been before the Tribunal, the order of remand would not have been passed. It was in these circumstances that application for review was filed.

(6) On this application filed for review, the Tribunal sent for the original file whereby the permission was granted under Section 21 of the Act and after perusing the application for permission to let out held that the sole ground for remand was that trial court should decide whether the permission granted is valid or not and whether the respondent did not require the premises or in other words did not disclose why the property was let for limited period. The learned Tribunal further held that ordinarily he would not have revised his previous order because this fact is being pointed out in the application for review but since the mistake is apparent on the face of the record, there was no ground as to why trial should again go into the same fact, and learned trial court will do nothing better than to simply read original application under Section 21 of the Act and thus the remand would be an exercise in futility. Learned Rent Control Tribunal further held that since there is a factual mistake in the order passed by him, he should not hesitate in correcting the same for whatever reason the same may have occurred and thereforee, when full facts are on the record, there is full justification for reviewing the order and for these reasons) the Tribunal reviewed its earlier order.

(7) Against the order of accepting review by the impugned order dated 27th March, 1981, the present appeal has been filed.

(8) The only point argued was whether the Tribunal had the power of review. The Tribunal took the view that it had inherent power to review its earlier order. Mr. P.N. Lekhi, Advocate, who appeared on behalf of the appellant, submits that there is no inherent power for review in the circumstances of the case. It was submitted that it was not a case of accidental slip or omission which could be corrected by the Tribunal for limited period, but it was a case for review on merits and no Tribunal of limited jurisdiction has power of review unless it is conferred on the Tribunal specifically by Statute.

(9) There could be no doubt that right of appeal or a power to review an order of Rent Controller can only be exercised if the statutory powers are so conferred on the Tribunal. No such Tribunal, other than the established courts, has power to hear an appeal or to entertain review application for disturbing an order on merits unless such power is specifically conferred on the said Tribunal by statutory provisions. Right of appeal to Tribunal is provided under Section 38 of the Act and power to correct clerical or arithmetical mistakes or errors that arose from any accidental slip or omission is specifically conferred on both the Controller and the Tribunal by Section 40 of the Act. Even though powers to correct clerical or arithmetical mistakes or errors arising from any accidental slip or omission are inherent in such Tribunal, yet the Legislature thought it fit to confer it by the aforesaid Section 40 of the Act.

(10) I am in complete agreement that power of review exercised in the present case is not covered by the aforesaid provisions of Section 40 of the Act nor can such a power be exercised under so called inherent power of the Rent Control Tribunal but the Central Government has framed rules under Section 54 of the Act known as the Delhi Rent Control Rules, 1959 (hereinafter referred to 'Rules') and rule 23 of the Rules reads as under :-

'23.In deciding any question relating to procedure not specially provided by the Act and these rules, the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908.'

It will be noticed that this provision, where a matter of procedure is not provided for in the Act, makes the provisions of the Code of Civil Procedure applicable both to the Controller and the Rent Control Tribunal. Effect of the aforesaid provisions like Rule 23 of the Rules in that any matter relating to procedure where the Act is silent, the provisions of the Code of Civil Procedure have been written with pen and ink in the Act itself. Under Section 38 of the Act, where power is conferred on Rent Control Tribunal to entertain an appeal from every order of the Controller, under Sub-section (3) of Section 38 of the Act, it is provided that Tribunal shall have all the powers vested in a court under the Code of Civil Procedure, 1908 when hearing an appeal. thereforee, so far as of the procedural matter while hearing the appeal is concerned, provisions of Code of Civil Procedure are fully applicable and appellate court has power under the provisions of Order 41 rule 27 of the Code of Civil Procedure to take additional evidence. This it a power conferred by Code of Civil Procedure because this power conferred by provisions of Order 41 Rule 27 of the Code of Civil Procedure is made applicable under Sub-section (3) of Section 38 of the Act. The Tribunal has also the power like taking additional evidence but once the appeal is decided the provisions of Sub-section (3) of Section 38 exaust themselves and the power to review has to be seen if it is conferred on the Tribunal or not.

(11) As I have noticed earlier in view of Rule 23 of the aforesaid rules, the provisions of Code of Civil Procedure have virtually become part and parcel of the Act. thereforee, all the provisions of the Code including the provisions of Order 47 of the Code of Civil Procedure for review also become applicable to a Rent Control Tribunal. Mr. Lekhi however, submitted that the wording of rule 23 is different from the provisions of Section 21 and 21(A) of the Hindu Marriage Act, 1955 and in view of the decision of the Supreme Court in Guda Vijalakshmi v. Guda Ramchandra Sakhara Sastry 1981 (1) D.M.G. 330,it is only the procedural matters mentioned in Code of Civil Procedure which are applicable to the Tribunal. He submitted that by rule 23 of the Rules, it is only matters of procedure by which the Tribunal can take recourse to provisions of Code of Civil Procedure but review is a matter of substantive right which cannot be resorted to. It may be noticed that so far as a party is concerned, right to file review application is substantive right but so far as court is concerned, power of review is a procedural matter. Right to file an appeal is a substantive right but once that right is exercised, how the appeal is to be decided is a procedural matter. In the same way, under provisions of Order 47 of the Code of Civil Procedure, parties are given a right to file review application and Code of Civil Procedure has been applied fully before Tribunal and thus, for Tribunal it is matter of procedure and the Tribunal would thus, have jurisdiction to entertain it under provisions of Order 47 of the Code of Civil Procedure.

(12) Section 21 of the Hindu Marriage Act provides, 'Subject to the other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far a may be, by the Code of Civil Procedure, 1908'. While interpreting this provision Tulzapurkar, J., speaking for the Supreme Court in the aforesaid case of Guda Vijayalakshmi (Supra) observed at page 1145 as under:

'INterms Section 21 does not make any distinction between procedural and substantive provisions of Cpg and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the Phrase 'as far as may be' means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into S. 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act.'

The same reasoning applies fully to the provisions of rule 23 of the Rules. In a different context rule 23 of the Rules came up for consideration before Dulat and Kapur JJ. in The. Central Bank of India Ltd. v. Gokal Chand 1966 D.L.T. 262, where the question arose whether any appeal lies or not against the order of the Rent Controller refusing to issue commission to inspect the premises. The argument in that case was that the rule 23 incorporates the provisions of Code of Civil Procedure in Delhi Rent Control Act and thereforee, an order passed by the Controller for grant or refusal of issue of commission would become an order under the Act within the meaning of Section 38 of the Act. The Division Bench agreed with the submission that in view of the rule 23, the provisions of Code of Civil Procedure became part of the Act. They however, held that that an order to be appealable under Section 38 has to be such an order which substantially affects the rights of the parties, otherwise it will not be termed as order within the contemplation of Section 38 of the Act. But the point to be noted here is that the Division Bench in para 4 of the judgment took the view that, 'If full effect is given to the provisions of Section 37(2), it must be taken as if the procedural provisions of the Code of Civil Procedure as applicable to a court of Small Causes are written with pen and ink in the Delhi Rent Control Act, 1958'. This provision of Order 37 Rule 2 is in pari materia with provisions of Rule 23 of the Rules.

(13) This Judgment of the Division Bench was upheld by the Supreme Court in The Central Bank of India Ltd. v. Gokal Chand : [1967]1SCR310 . In Hariah Chandra Bajpai v.Triloki Singh : [1957]1SCR370 , their Lordships of the Supreme Court were considering the construction of certain provisions of the Representation of the People Act, 1951. One of the provisions, which arose directly for consideration, was Subsection (2) of Section 90, which, when read is as under :-

'SUBJECTto the provisions of this Act and of any rules made there under, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Act V of 1908) to the trial of suits.'

Their Lordships of Supreme Court came to the conclusion that provisions of Order 6 Rule 17 of the Code of Civil Procedure became applicable to the trial of an election petition. Power of amendment is also a poor conferred by Order 6 Rule 17 of the Code of Civil Procedure yet the Supreme Court in the case of Harish Chandra Bajpai (supra) while interpreting the aforesaid Section 90(2) took the view that it was part of the procedure prescribed under the Code of Civil Procedure. In the same way, I am of the firm view that power of review conferred by provisions of Order 47 of the Code of Civil Procedure if also applicable to the Tribunal after disposal of the appeal. Only these provisions of the Code of Civil Procedure are excluded which are inconsistent with the Act or the Rules. The power conferred by Order 47 is in no way inconsistence with the Act.

(14) Since the provisions of Order 47 of the Code of Civil Procedure are applicable to Tribunal, the order passed by the learned Tribunal is within jurisdiction. The order was not challenged before me on merits.

(15) The appeal, thereforee, fails and is dismissed.


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