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Madan Lal Bhatia Vs. Rattansehgal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 48 of 1980
Judge
Reported in18(1980)DLT513; 1981RLR22
ActsDelhi Rent Control Act, 1953 - Sections 14(1)
AppellantMadan Lal Bhatia
RespondentRattansehgal
Advocates: N.S. Sistani,; M.C. Bhandare and; S.N. Sapra, Advs
Cases ReferredVinod Kumar Chawdhry v. NarainDeni
Excerpt:
- - ) was of the opinion that the law laid down by this court in the three decisions no longer holds good and has referred the case to a larger bench. the scheme of section 25-b clearly shows that the tribunal completely goes out of the picture in the new procedure outlined in chapter iii-a of the act......the constitution, of india, is directed against the order dated 3.3.1980 passed by the 3rd addl. rent controller under section 15(2) of the delhi rent control act, 1958 (hereinafter referred to as 'the act'). the brief facts leading to 'this petition are, as under. (2) the respondent-landlord filed an eviction petition under section 14(1) (e) read with section 25-b of the delhi rent control (amendment) act, 1976 for the recovery of possession. the petitioner-tenant filed anapplication for leave to contest under section 25-b(5) raising various questions of law and fact. the leave to contest was granted by order dated 20.2.1978. during the pendency of the proceedings the respondent-landlord moved an application under section 15(2) of the act on 8.1.1979. the said application was.....
Judgment:

N.N. Goswanai, J.

(1) This petition under article 227 of the Constitution, of India, is directed against the order dated 3.3.1980 passed by the 3rd Addl. Rent Controller under Section 15(2) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act'). The brief facts leading to 'this petition are, as under.

(2) The respondent-landlord filed an eviction petition under Section 14(1) (e) read with Section 25-B of the Delhi Rent Control (Amendment) Act, 1976 for the recovery of possession. The petitioner-tenant filed anapplication for leave to contest under Section 25-B(5) raising various questions of law and fact. The leave to contest was granted by order dated 20.2.1978. During the pendency of the proceedings the respondent-landlord moved an application under Section 15(2) of the Act on 8.1.1979. The said application was contested on various grounds and finally it was allowed by order dated 3.3.1980 and the petitioner herein was directed to deposit the arrears of rent and future rent as indicated in the order. It is against this order that the present petition has been filed.

(3) The only question involved in this case is whether an application under Section 15(2) of the Act is maintainable during the pendency of the proceedings under Section 25-B of the said Act before the Controller on an application being filed by the landlord for eviction of the tenant under Section 14(1)(e) read with Section 25-B of the Act. There are three decisions of this Court which we will refer to later to the effect that such an application is not maintainable. However, in view of the observations of their lordships of the Supreme Court in the case of Santosh Mehta v. 0m Prakash, 1980 Rajdhani Law Reporter 355 the learned Single Judge (Kirpal J.) was of the opinion that the law laid down by this Court in the three decisions no longer holds good and has referred the case to a larger Bench.

(4) The learned Single Judge of this Court Avadh BehariJ. had an occassion to deal with the scope of Section 25-B(3) of the Act in the case of R. K. Pareekh v. Smt. Uma Verma, : AIR1979Delhi17 . It was held in that case that the object of the legislature in incorporating the non-obstante clause both in Section 14(a) and 25-A of the Act is to do away with the first and second appeal contained in Section 38 and Section 39 of the Act because they are inconsistant; and anything inconsistant to be found elsewhere in the Act must give away to the paramount provisions of Section 14(e) and 25-A of the Act. It was further held that the policy and purpose of the Legislature in enacting Sections 25A, 25-B and 25-C is to introduce swift and expeditious procedure for trial where the landlord's application for eviction is founded on the ground of bona fide requirement. . In Ram Nath &. another v. 0. P. Khadria A. I. R.. 1980 Delhi 237, the same learned- Single Judge held that once an application under Section 14(i)(e) read with Section 25-B of the Act has been filed, an application under Section 15(2) cannot be made for the simple reason that an order under Section 15(2) is made appealable by the Act under Section 38 to the Tribunal. The scheme of Section 25-B clearly shows that the Tribunal completely goes out of the picture in the new procedure outlined in Chapter III-A of the Act. The view of the learned Single Judge expressed in the case of .R. K. Pareekh v. Smt. Uma Verma (supra) was approved by the Supreme Court in the case of Vinod Kumar Chawdhry v. NarainDeni, 1980 Rajdhani Law Reporter 159. It was held by their lordships of the Supreme Court that though the proviso to Section 25-B(3) is not happily worded but the same excludes the right of appeal under Sections 38 and 39 and makes it equally applicable to both parties i.e. the landlord and the tenant. The observations in paragraph 6 of the said judgment are pertinent which are, as under :

'IT is in the above background that the question as to whether an appeal to the Tribunal or a revision to the High Court was competent against the order passed in the instant case by the Controller has to be decided, and that brings us directly to the meaning of Sub-section (8) of Section 25-B. The proviso to that Sub-section given power to the High Court to revise 'an order made by the Controller under this Section' which expression is no doubt capable of being construed as any order of whatsoever nature passed by the Controller while acting in accordance with the procedure laid down in Section 25-B. The proviso, however, has to be read as a legislative measure carved out of, the Sub-section to which it is appended and the order mentioned therein has to be regarded as an order of the type which the Sub-section speaks of, i.e. 'an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section.' Thus, the order covered by Sub-section (8) (and thereforee by the proviso also) would be a final order disposing of an application on a conclusion of the proceedings under Sub-section (4) or Sub-section (7) of Section 25-B. This line of reasoning does not present any difficulty.'

(5) Again the Supreme Court had an occasion to deal with the scope of Section 25-B in relation to orders passed under Section 15 of the Act in the case of Miss Santosh Mehta v. 0m Prakash, 1980 Rajdhani Law Reporter 355. In that case an order has been passed requiring the tenant to pay the rent. On the tenant's failing to pay the rent an order under Section 15(7) striking out the defense of the tenant was passed. Against that order an appeal was filed. The matter came to the High Court from the Tribunal and the High Court held that the appeal before the Tribunal was not maintainable in view of Section 25-B. The matter went up to the Supreme Court. After discussing the facts the Supreme Court held, as under :

'ANorder striking out the defense is appealable under Section 38. So this order is appealable. This reliance on Section 25(B)(8) to negative an appeal is inept because this is not an order under that special section but one under Section 15. Moreover Section 25-B(10) preserves the procedure except to the extent contra indicated in Section 25-B. Negation of a right of appeal follows from Section 25-B(8) only if the order for recovery is made in accordance with the procedure specified in this Section (i.e. 25-B). Here the dispossession was not ordered under the special provision in Section 25-B but under Section 15(1). Nor can the theory of merger salvage the order because the legality of the eviction order depends on the legality of the order under Section 5(7). Once that order is found illegal what follows upon that cannot be sustained.'

(6) The aforesaid decision of the Supreme Court was cited before Avadh BehariJ. in Pran Noth v. .Ram Shishak, 1980 R.ajdhani Law Reporter 451. The learned Single Judge distinguished the decision on the ground that Santosh Mehta's case was an authority on Section 15(7) of the Act and not an authority on the validity of an order made under Section 15(2) in proceedings under Chapter III-A. It was held that the validity and proprietory of an order under Section 15(7) of the Act was a short point for decision and thereforee the said case of the Supreme Court did not militate against the view taken in Vinod Kumar's case or in 0. P. Khadria's case.

(7) After giving our careful consideration, we are. of the opinion that in case the order under Section 15(2) can be regarded as being appealable under Section 38 as held by the Supreme Court, there is no reason why an order under Section 15(2) cannot be held to be a similarly appealable under Section 38. The order under Section 15(7) is only a consequential order and it can only be passed after an order under Section 15(1) or 15(2) has already been passed. The Supreme Court in the case of Vinod Kumar Chowdhry (supra) had observed that the proviso under Section 25-B(8) has to be read as a legislative measure carved of the Sub-section to which it is appended and the order mentioned therein has to be regarded as an order of the type which the Sub-section speaks of, i. e., 'and order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section. From these observations also it is clear that the right of revision is only limited to the cases where the proceedings have concluded under Sub-sections (4) and (7) of Section 25-B.

(8) It is no doubt true that Chapter III-A was introduced in the Act by Amendment Act 18 of 1976 to provide for a 'summary trial of certain applications, but the said procedure is confined to the extent indicated in the Chapter itself. Once the leave to defend is granted, it does not mean that the landlord has no remedy against the defaulting tenant even though the proceedings may continue for a long period. The right of appeal is taken away only if the order for recovery is made or declined in accordance with the procedure specified in the said Chapter particularly Section 25-B. The same cannot possibly be extended to other provisions contained in the Act.

(9) In view of the clear pronouncements by their lordships of the Supreme Court in the two decisions referred to above, we are of the opinion that there is no bar to an order under Section 15(2) being passed by the Rent Controller in petitions under Section 25-B of the Act and the view expressed by the learned Single Judge of this Court in the cases referred to above, does not hold s;ood to that extent. Consequently there is no merit in this petition which is dismissed. The learned counsel for the petitioner submitted that in view of the conflict of judicial opinion he may be allowed some further time to comply with the order of the Addl. Rent Controller. Considering the circumstances, we allow time up to 30th November, 1980 for depositing the arrears of rent as directed and for payment of future rent in accordance with the order. There will be no order as to costs.


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