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Pran Nath Kapur Vs. Ram Shiksh Mehta and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 263 of 1979
Judge
Reported in18(1980)DLT300; 1980RLR451
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantPran Nath Kapur
RespondentRam Shiksh Mehta and ors.
Advocates: Arun Kumar and; K.K. Mittal, Advs
Cases ReferredIn Quinn v. Leathem
Excerpt:
.....(e) read with section 25 b - during pendency of case for ejectment respondents made application to rent controller under section 15 (2) for deposit of arrears of rent - rent controller directed tenant to deposit all arrears of rent and future rent month by month in accordance with section 15 (2) - rent controller has no jurisdiction to pass order under section 15 (2) against tenant to deposit arrears of rent if proceedings brought under section 25 b - appeal allowed. - - but the scheme of section 25b clearly shows that the tribunal completely goes out of picture in the new procedure outlined in chapter iii-a. (13) the theory of two procedures, one of appeal to the tribunal in certain cases and the other of revision to the high court in yet other cases- was roundly condemned by the..........(the act). during the pendency of the case for ejectment the landlords made an application to the rent controller under section 15(2) asking him to order the tenant to deposit arrears of rent. the controller made the order on august 29,1979. he directed the tenant, to deposit all arrears of rent and future rent month by month in accordance with section 15(2). (3) from the controller's order the tenant appealed to the rent control tribunal. followingmydccisioninj?.jf. parikh v. uma yerma, : air1979delhi17 and a subsequent decision of ranganathanj. in som nath raina v. kirpa ram, s. a. 0. 295 of 1977 decided on august 10 1979 (1979) 16 d.l.t. 327 the tribunal held that the appeal was incompetent. so the appeal was dismissed and is not maintainable. (4) the tenant brought the present.....
Judgment:

Avadh Behari, J.

(1) This is an appeal from the order of the Rent Control Tribunal dated 11th September, 1979.

(2) The appellant is a tenant. The respondents are the landlords sued the tenant for ejectment on the ground of bona fide requirement under Section 14(I)(e) read with Section 25B of the Delhi Rent Control Act (the Act). During the pendency of the case for ejectment the landlords made an application to the rent controller under Section 15(2) asking him to order the tenant to deposit arrears of rent. The controller made the order on August 29,1979. He directed the tenant, to deposit all arrears of rent and future rent month by month in accordance with Section 15(2).

(3) From the controller's order the tenant appealed to the rent control tribunal. FollowingmydccisioninJ?.Jf. Parikh v. Uma yerma, : AIR1979Delhi17 and a subsequent decision of RanganathanJ. in Som Nath Raina v. Kirpa Ram, S. A. 0. 295 of 1977 decided on August 10 1979 (1979) 16 D.L.T. 327 the tribunal held that the appeal was incompetent. So the appeal was dismissed and is not maintainable.

(4) The tenant brought the present appeal. He asked for a stay of the operation of the order of the controller requiring him to deposit rent. I refused stay. Because till then this question had not been mooted and decided by this court.

(5) On March 19, 1980 I heard the appeal. The tenant's counsel was present. The landlord's counsel was absent. Following mv previous decision in Ram Nath v. 0. P. Khadria l980 Raj. L.R. 36-(1985) 17 D.L.T. 435 I allowed the appeal and set aside the order of the rent controller dated August 29,1979.

(6) On April 18, 1980 the landlords made an application for a rehearing of the appeal. I agree to rehear the appeal.

(7) After hiring elaborate arguments of counsel for the parties I do not think I ought to change my view. I remain of the same opinion. In Ram Nath's case (supra), I have held that the controller has no jurisdiction to pass an order under Section 15(2) of the Act against the tenant to deposit arrears of rent if the proceedings are brought under Section 25B of the Act.

(8) Chapter III-A was introduced by the Amendment Act 18 of 1970 (w. e. f. 1-12-1975). Section 25B of this chapter is one of those 'improvements' that delight draftsmen who make them and tantalise judges who then have to interpret them. It provides for a 'summary trial of certain applications' as the title suggests. Under this newly introduced provision every application by a landlord for recovery of possession on the ground of bona fide requirement specified in Clause (e) of the proviso to Sub-section (1) of Section 14 of the Act has to be dealt with in accordance with the procedure specified in Section 25B. The procedure is compulsory and not optional. The words used are: 'every application.........shall be dealt with.........' This shows that the procedure is mandatory. It is not elective, as was argued.

(9) Now the procedure is indicated in Chapter III-A. The tenant has to obtain leave. On leave being granted the tenant can contest the application. But if leave is refused the controller passes an order for recovery of possession straightway. From the order of possession made by the controller no appeal or second appeal lies. A revision to the High Court is provided. In R. K. Parikh's case I held that no appeal lies to the tribunal from a case heard and decided under Section 25B. The Supreme Court has now expressly approved of Parikh's case : (See Vinod Kumar Chaudhary v. Smt. Narain Devi Tawja : [1980]2SCR746 , 128 per Murtaza Fazal All, Kailasam and Koshal JJ.).

(10) Is it open to the controller to require the tenant to deposit rent under Section 15(2) of the Act when the landlord's case is being tried in accordance with the procedure laid down in Section 25B? This is the real question for decision. The question is one of principle. In my opinion an application for an order under Section 15(2) cannot be made in proceedings under Section 25B for the simple reason that an order under Section 15(2) is made appealable by the Act under Section 38 to the tribunal. But the scheme of Section 25B clearly shows that the tribunal completely goes out of picture In the new procedure outlined in Chapter III-A. The rent tribunal in Section 25B has no role to play. He has no function to perform. The truth is that he has no work to do. Under Section 25B the controller has to deal with the. application for an order for recovery of possession on the ground of bona fide requirement and from his order a revision lies to the High Court. No appeal or second appeal lies.

(11) Now if I were to hold that an application under Section 15(2) can be made an order can be passed by the controller, as is argued by counsel for the landlords, it will mean that an appeal can be preferred under Section 38 to the tribunal by a party aggrieved by the order of the controller. A fortifori a, second appeal will lie to the High Court under Section 39 of the Act. This is entirely inconsistent with the scheme and structure of Section 25B. The legislature has made no provision for recourse to the tribunal under Section 25B by parties who may be aggrieved by such orders.

(12) Counsel for the landlords argued that an order Section 15(2) can be amade even in proceedings for possession on the ground of bona fide requirement under Chapter III-A. He contended that if tenant does not deposit rent as required by Section 15(2) the controller can strike out the defense of the tenant against eviction. He said that rent and tribunal go together and if rent is claimed then appeal to the tribunal will lie. But where no rent is claimed, he submitted there will be no appeal to the tribunal. I am not impressed by the force of this reasoning. As the Supreme Court has said in Vinod Kumar's case (supra) that Sub-section (8) of Section 25B is 'exhaustive of the remedies available to a person aggrieved by an order passed by the controller in applications triable under Chapter III-A' (p. 128). It will be illogical to hold that if rent is claimed the tribunal will reappear on the scene for purposes of appeal. And if no rent is claimed the tribunal vanishes. The legislature has abolished the right of appeal and second appeal by one stroke of pen and has replaced it by a power in the High Court judges to revise the order passed by the controller, thus implifying full confidence in their use of their discretion.

(13) The theory of two procedures, one of appeal to the tribunal in certain cases and the other of revision to the High Court in yet other cases- was roundly condemned by the Supreme Court in Vinod Kumar Chaudhary's case. This is not the legislative habit of Parliament. Nothing in my view could be more dangerous than to assume by inference that Parliament intended That both the appellate and the revisional remedies should beavailable to landlords and tenants in the summary procedure unless it has given a clear mandate. I find no such clear mandate in Chpater III-A. A court of Jaw has Ho right to approach the question of construction with an a priori belief or intuition as to what Parliament is likely to have intended to allow.

(14) The mind of the legislature is manifested in its determination to do away with appeals altogether whether it is to the tribunal under Section 38 or to the High Court under Section 39 of the Act. We cannot say that at one moment the legislature is abolishing appeals to the tribunal for purposes of appeal from the order of the controller under Section 15(2). The truth is that Sub-section (8) of Section 25B and Section 15(2) are not capable of effective co-existence in the new framework. These provisions are not complementary. They are rather conflicting in the scheme of special procedure adumbrated in chapter III-A.

(15) As I said in 0. P. Khadria's case (supra) an application under Section 15(2) will impede and delay the expeditious trial of the case. The object of Section 25B is to 'cut down the time factor drastically,' and to bring the proceedings to a speedy conclusion (Vinod Kumar Choudhary's case, supra at p. 1277). If the tenant does not deposit rent his defense will be struck out under Section 15(7). This will lead to appeal and second appeal. But all appeals have been abolished by Sub-section (8) of Section 25B as the Supreme Court has authoritatively held in Vinod Kumar Chaudhary. Section 25B is based on the conception of leave. Chapter III-A introduces the modern summary procedure of affidavit. The notion of striking off the defense is foreign to it.

(16) I was referred to a recent decision of the Supreme Court in Miss Santosh Mehta v. 0m Prakash, G. A. 1445 of 1978 decided on April 21, 1980 (per Krishna Iyer and A. P. Sen JJ.). But for this decision I would not have thought of restating my views because I had already said in O. P. Khadria's case what I thought on the subject. Now Santosh Mehta's cass is an authority on Section. 15(7) of the Act. It is not an authority on the validity of an order made under Section 15(2) in proceedings under Chapter III-A. The validity and propriety of an order under Section 15(7) of the Act' was the short paint for decision, as the judges themselves say in the opening. It is a misreading of Santosh Mehta to say that the Supreme Court has affirmatively held that the controller can pass an order under Section 15(2) in the special procedure of Section 25B. The question at issue was effectively answered by three judges in Vinod Chaudhary's case. I find nothing in Santosh Mehta's case to militate against the view taken in Vinod Chaudhary on which I take my stand.

(17) In Quinn v. Leathem, (1901) A. C. 495 at p. 506 Lord Halsbury said:

'A case is only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it.'

(18) In Santosh Mehta the Supreme Court held that the controller ought have struck out the defense of the tenant in the facts and circumstances of that case. The question of the power of the controller to pass an order under Section 15(2) itself docs not seem to have been raised or decided.

(19) One other question was raised during arguments. What will happen to the rent which the tenant has deposited? Now the tenant has succeeded in this appeal. He has made an application to the controller to allow him to withdraw the amount of rent deposited by him. The tenant has deposited Rs. 8000.00 with the controller on account of 50 months' rent in which he had fallen in arrears from 1st February 1976 to 31st March 1980. Now he wants withdraw this amount because he says : 'I have succeeded in the appeal.'

(20) Under Sub-section (8) of Section 25B a second appeal to this court is prohibitated. The proviso to Sub-section (8) reads: 'Provided that-the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. These are ample words of conferment. thereforee a revision lies to this court. Counsel concedes that second appeal will not lie. He requests that his appeal may be treated as a revision. In revision court's powers are essentially discretionary. Unlike in appeal where the appellant can claim relief as of right, in revision the jurisdiction is essentially of a discretionary nature. I do not think it will be a sound exercise of discretion to allow the tenant to withdraw the rent which he has deposited. It is true that the controller has no power to pass an order under Section 15(2), 'as I have held. But now that rent has been deposited and that the tenant is admittedly in arrears from 1st February 1976 and the rate of rent is not in dispute I do not think it will be proper to allow the tenant to withdraw the rent to which the landlords are justly entitled though, strictly speaking, in these proceedings they cannot ask for an order for deposit of rent. The right order to make will be this. The tenant will not be required to deposit rent in future, but he will not be allowed to take back what he deposited in the past.

(21) For these reasons the appeal is allowed. But the tenant will not be entitled to withdraw the rent deposited by him. The landlords will be entitled withdraw the same from the rent controller if all of them apply and there is no dispute intense amongst them.

(22) The parties are left to bear their own costs


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