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Sardar Lal and ors. Vs. Umrao Lal Gupta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSpecial Appeal No. 18 of 1981
Judge
Reported inAIR1982Raj39; 1981()WLN233
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 22 and 22(2); Rajasthan High Court Ordinance, 1949 - Sections 18(1); Code of Civil Procedure (CPC) , 1908 - Sections 100
AppellantSardar Lal and ors.
RespondentUmrao Lal Gupta
Appellant Advocate P.C. Jain, Adv.
Respondent Advocate P.N. Dutta, Adv.
DispositionAppeal dismissed
Cases ReferredIn Smt. Asha Devi v. Dokhi Sao.
Excerpt:
.....appellants thus cannot have a right of second appeal against an order passed by the learned single judge in the case of an order passed for striking off the defence against eviction under the rent control act.;appeal dismissed - industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of..........high court ordinance, 1949 is not maintainable against the judgment of the learned single judge passed in an appeal against an order under the rent control act. learned counsel for the respondents submitted that there was a clear bar under section 22 of the act for filing second appeal against any order passed under the act. it is argued that under section 22 of the act only one appeal is permissible against an order striking off defence against evition and thereafter there is a clear bar for filing a second appeal in terms of section 22 of the act. it is further contended that special appeal filed under section 18 of the rajasthan high court ordinance, 1949 against the judgment of the learned single judge is nothing else than a second appeal and when the intention ef the.....
Judgment:

1. This Special Appeal is directed against the judgment of the learned single Judge, dated June 29, 1981.

2. The plaintiff respondent filed a suit for eviction on the ground of reasonable and bona fide necessity as well as on the ground of default in the payment of rent. The plaintiff-landlord filed an application under Section 13 (6) of the Rajasthan, Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) on 1-9-78 for striking off the defence against eviction. The learned District Judge. Alwar by his order dated 23-7-79 allowed the application and struck off the defence against eviction. The defendants filed an appeal under Section 22 of the Act in this Court, which came UD for consideration before the learned Single Judge. The learned Single Judge dismissed the appeal by his judgment, dated June 29, 1981- The defendants have filed the present appeal against the aforesaid judgment of the learned single Judge. A preliminary objection was raised by the learned counsel for the plaintiff respondent that the special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is not maintainable against the Judgment of the learned single Judge passed in an appeal against an order under the Rent Control Act. Learned counsel for the respondents submitted that there was a clear bar under Section 22 of the Act for filing Second appeal against any order passed under the Act. It is argued that under Section 22 of the Act only one appeal is permissible against an order striking off defence against evition and thereafter there is a clear bar for filing a Second Appeal in terms of Section 22 of the Act. It is further contended that special appeal filed under Section 18 of the Rajasthan High Court Ordinance, 1949 against the judgment of the learned Single Judge is nothing else than a second appeal and when the intention ef the legislature is that no second appeal can be filed against an order passed under the Rent Control Act, in that case, special appeal cannot be filed by circumventing the provision of Section 22 of the Rent Control Act. Reliance in this regard is placed on Union of India v. Mohindra Supply Co. AIR 1962 SC 256.

3. Mr. Jain, learned counsel for the appellants contended that Section 18 of the Rajasthan High Court Ordinance permits a special appeal to the Division Bench against the judgment of the learned single Judge and Section 22 of the Rent Control Act cannot be a bar to an appeal filed under the provisions of the High Court Ordinance. It is further contended that in case an order striking off the defence is passed by a Munsiff then one appeal can be filed to the District Judge and thereafter the person aggrieved against the judgment of the District Judge can come to the High Court in exercise of its revisional jurisdiction and in that case a litigant has two chances. But if the contention of the learned counsel for the plaintiff-respondents is accepted, then if the suit is filed initially in the Court of District Judge on account of high valuation, then such plaintiff would have only one right of appeal to a learned Single Judge and thereafter he will have no remedy even if the judgment of the learned Single Judge was wrong or erroneous on merits. According to Mr. Jain, such discrimination is neither permissible nor could have been intended by the legislature. It is further argued that according to Section 28 of the Rent Control Act, the provisions of such Act are in addition to and not derogatory of, any other law. Mr. Jain further contended that the case Union of India v. Mohindra Supply Company (AIR 1962 SC 256) (supra) is distinguishable as under Section 39(2) of the Arbitration Act, there was an express prohibition of a second appeal from an order passed in appeal under Section 39(1) of the Arbitration Act, but in case of the Rent Control Act in Rajasthan, there was no such provision, on the contrary Section 28 clearly laid down that the provisions of the Rent Control Act will be in addition to and not derogatory to any other law.

4. We have given our careful consideration to the arguments advanced bylearned counsel for both the parties.Section 22 reads as under :--

'Appeal & Revision--(1) From every decree or order passed by a Court under this Act, and appeal shall lie to the Court to which appeals ordinarily lie from original decrees and orders passed by such former Court.

(2) No second appeal shall lie from any such decree or order;

Provided that nothing herein contained shall affect the powers of the High Court for Rajasthan in revision.

(3) Any person aggrieved by an order of the Magistrate may within fifteen days from the date of such order, appeal therefrom to the District Magistrate or such authority as the State Government may from time to time appoint in that month.'

The above section expressly prohibits a second appeal from an order passed in appeal under Section 22 of the Act. Section 39(2) of the Arbitration Act also lays down a similar provision expressly prohibiting a second appeal from an order passed in appeal under Section 39(1) except an appeal to the Supreme Court. The expression 'Second Appeal' used under Section 22 of the Act does not mean an appeal under Section 100 of the Civil P. C. In this view of the matter the conclusion is inevitable that the expression 'Second Appeal' used in Section 22 of the Act means a further appeal from an order passed in appeal under Section 22 of the Act and not an appeal under Section 100 of the Civil P. C. Section 18 (1) of the Rajasthan High Court Ordinance, 1949 provides as under;

18 (1) An appeal shall lie to the High 'Court, from the judgment (not being a judgment passed in exercise of appellate Jurisdiction in respect of a decree or order made in the exercise of appellate Jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence tinder Section 43 or in the exercise of Criminal jurisdiction) of one Judge of the High Court.'

Under Sub-section (1) of Section 18, a right to appeal except in the cases specified is allowed from the Judgment of one Judge of the High Court. However, such power under Sub-section (1) of Section 18 is subject to the legislative power and in the present case under Section 22 of the Rent Control Act the legislature has permitted only one right of appeal against an order passed under the Act:

In our opinion the express provision contained in Section 22 restricting a second appeal, will also restrict the right of special appeal to a Division Bench from a Judgment of one Judge of the High Court recognised under Sub-section (1) of Section 18 of the Rajasthan High Court Ordinance. Rent Control Act is a special Act and when the right of second appeal has been expressly restricted against an order passed under the Act, it certainly restricts the power recognised under Sub-section (1) of Section 18 of the High Court Ordinance also. In our view, the case Union of India v. Mohindra Supply Company (AIR 1962 SC 256) (supra) decided by the Supreme Court applies on all fours to this case also. While dealing with the provisions of Section 39 of the Arbitration Act, the Supreme Court in the above case observed as under (at p. 259):--

'The problem to which attention must then be directed is whether the right to appeal under the Letters Patent is at all restricted bv Section 39. Sub-sections (1) and (2). Clause 10 of the Letters Patent of the High Court, in so far as it is material, provides: 'And we do further ordian that an appeal shall He to the said High Court. ... (from the judgment not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in exercise of revisional jurisdiction ......) of one Judge of the High Court. ....'

By this Clause, a right to appeal except in the cases specified, from one Judge of the High Court to a Division Bench is expressly granted. But the Letters Patent are declared by CL 37 subject to the legislative power of the Governor-General-in-Council and also of the Governor-in-Council under the Government of India Act. 1915, and may in all respects be amended or altered in exercise of legislative authority. Under Section 39(1), an appeal lies from the orders specified in that Sub-section and from no others. The Legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right to appeal against other orders is expressly taken away, if by the express provision contained in Section 39(1), a right to appeal from a judgment which may otherwise be available under the Letters Patent is restricted, there is no ground for holding that Clause (2) does not similarly restrict the exercise of appellate power granted by the Letters Patents. If for reasons aforementioned the expression 'second appeal' includes an appeal under the Letters Patent, it would be impossible to hold that notwithstanding the express prohibition, an appeal under the Letters Patent from an order passed in appeal under Sub-section (1) is competent'

Section 28 of the Bent Control Act only lays down that the provisions of the Rent Control Act shall be in addition to and not in derogation to any other law. The above provision cannot 'be read so as to make the provisions of Section 22 nugatory where the second appeal has been restricted in express words. We find no force in the contention of Mr. Jain that where a suit is filed an the Court of Munsiff then a will have one right of appeal and a second aright of revision in the High Court, but a litigant who filed a suit in the Court of District Judge will only have one right of appeal to the High Court before a Single Judge and not further right of revision or appeal before the Division Bench. A right of revision under Section 115 C.P.C is entirely different from the right of second appeal. The scope of Section 115 C.P.C. is a limited right and can 'be invoked only when there is an error of jurisdiction. So far as the right of appeal is concerned, only one right of appeal is available in 'both the cases whether the suit IS FILED IN THE Court of Mansiff or in the Court of District Judge. The appellants thus cannot have a right of second appeal against an order passed by the learned. Single Judge in the case of an order passed for striking off the defence against eviction under the Rent Control Act.

Mr. Jain placed reliance on Gulab Bai v. Puniya. AIR 1966 SC 637, ChunilalVithaldas v. Mohan Lal Motilal Patel,AIR 1967 SC 226, Smt. Asha Devi v.Dukhi Sao, (AIR 1974 SC 2048) and Miss. Santosh Mehta v. Om Prakash, (1980) 3SCC 610: (AIR 1980 SC 1664). In GulabBai v. Puniya, it was held that Section 48of the Guardians and Wards Act (1890) attaches finality to the orders passed by the trial 'Court subject to the provisions of Section 47 of the Act and Section 115 of 'the 'Civil P.C. Section 47 of the Act which, considered by themselves, undoubtedly 'did not create any bar against the competence of an appeal under Section 18(1) of the Rajasthan High Court Ordinance where the appeal permitted by Section 47 is heard by a Single Judge of the High Court. An appeal, therefore, to the Division Bench under Section 18 (1) of the Ordinance is competent from an order of the Single Judge of the Court in an appeal under Section 47 of the Guardians and Wards Act. The aforesaid case is deafly distinguishable as there was no express prosion under the Guardians and Wards Act like Section 22 of the Act, which dearly prohibits a second appeal. That apart Section 48 of the Guardians and Wards Act itself saved the provisions of Section 47 and as such it did not create any bar against the competence of an appeal under Section 18 (1) of the High Court Ordinance. Their Lordships of the Supreme Court had distinguished the decision in Union of India v. Mohindra Supply Company (AIR 1962 SC 256) (suprd) on the ground that by enacting Section 39(2) the .Arbitration Act had prohibited an appeal under the Letters Patent against an order passed under Section 39(1). In our view the case Union of India v. Mohindra Supply Company (supra) applies to the facts of the case before us and Gulab Bai's case distinguishable. In Chunilal Vithaldas v. Mohan Lal Motilal Patel-- the question which calls for determination before us was not at all in controversy. The only point decided by the Supreme Court in the above case is that in case of second appeal filed under the Saurashtra Rent Control Act, the appellate court is bound by same restrictions as are laid down in Section 100 of the Civil P.C Thus this case renders no assistance to the defendant-appellants in the present case. In Smt. Asha Devi v. Dokhi Sao. (AIR 1974 SC 3048) the only question tion decided is that the power of a Division Bench hearing the fetters Patent Appeal under Clause 10 from the lateral of the Single Judge in the first appeal is not limited only to question of law under Section 100 C.P.C. but it has the same power, which the learned single Judge has as a first appellate court in respect of both questions of fact and of law. In our view, the above authority is of no help at all to the appellants on the questionwhich calls for determination in thecase under hand. In Miss, Santosh Mehtav. Om Praksh, (AIR 1980 SC 1664) itwas held that an order passed by thecontroller striking out the tenant's defence,under Section 15(7) of the DelhiRent Control Act, 1958 was appealableunder Section 38 and Section 25-B (8) cannot be applied to negate appeal. Wefail to understand as to how the aforesaid, authority is at all relevant for the purposes of deciding the controversy raised before us in the present case.

5. In the result the preliminary objection raised by the plaintiff-respondent sustains and this appeal is dismissed as not maintainable. The parties shall bear their own costs.


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