1. Omprakash and his father Gappuram have filed this application under Article 226 of the Constitution of India and Section 28 of the Rajasthan High Court Ordinance, with a prayer that all the proceedings by the Rent Controller, Jaipur, purporting to be taken under Section 10 of the Jaipur Rent Control Order, 1947--hereinafter to be referred to as the Jaipur Order--and orders of the Rent Controller dated the 10th November and 17th November, 1949, and 3rd and 6th June, 1950 as well as the orders of the Collector dated the 4th April, and 2nd May, 1950 in connection with shop No. 231 situated in Chaura Rasta, Jaipur City, be quashed and a writ of prohibition be issued not to hand over the possession of the said shop to Bansidhar, opposite party No. 1, and the seal and lock put by the Rent Controller be removed and the possession of the shop be left to> the petitioners and also a writ of certiorari or any other proper order be issued for the above purposes.
2. This application has been filed against Bansidhar, who is the intending tenant of the shop Nathulal, the owner of the shop, the Rent Controller of Jaipur and the Collector of Jaipur.
3. The allegations of the petitioners are that they are members of a joint Hindu family and carry on a business under the name and style of Omprakash Gappuram for supplying ration and other articles to Sawai Man Guards (a Military Battalion of the former Jaipur State). They had been doing this business since 1939 and rented a shop No. 231 situated in Chaura Rasta, Jaipur City, from the opposite party No. 2 on 6th August 1944 for the said business. This shop contained five apartments. From 6th August, 1944 to April 1948 the shop was used for the purposes of the said business as well as other businesses of the petitioners. In April 1948 Sawai Man Guards left for Kashmir on active service and petitioner No. 2 remained with the said Unit in Kashmir while petitioner No. 1 remained in Jaipur. On the 9th July 1949 Sawai Man Guards returned from Kashmir and the petitioner No. 2 returned along with it. On 15th October 1949 the opposite party No. 1 filed an application before the Rent Controller that he had come back from Calcutta and wanted to carry on business at Jaipur. The shop in question, which was vacant, be therefore allotted to him. The Rent Controller without recording his satisfaction as required by Section 10 of the Jaipur Order and without issuing a notice as required by the said section sealed the shop on the 10th November, 1949 and without giving any proper opportunity to the petitioners allotted it to the opposite party No. 1 on the 17th November, 1949, although the date for hearing was fixed as 10th November 1949, Against this order the petitioners went in appeal to the Court of the Collector Jaipur, but he dismissed the appeal for default. An application was made for restoration of the appeal but it was also dismissed.
4. The contention of the petitioners is that the Rent Controller was not entitled to take any action under Section 10 unless he was satisfied that the premises were vacant either on account of the landlord ceasing to occupy the same or by the termination of a tenancy or by the eviction of the tenant or by the release of the premises from requisition or otherwise, and that the applicant before him had actual necessity for the shop. Only after such satisfaction he was entitled to take action and he was in duty bound to serve a notice on the landlord with the contents required by Sub-clause (i) and (ii) of Clause (1) of Section 10. The Rent Controller was neither satisfied about the facts required by Section 10 (1) nor 'did he issue a notice as required by Section 10 (1) (i) and (ii). The proceedings of the Rent Controller were therefore without jurisdiction and should be quashed. As regards appeal, it has been contended that under Section 12 of the Jaipur Order the only power that the appellate authority had was that of sending for the record of the case from the Controller and after perusing such record and making such enquiry as it thought fit either itself or through the controller of deciding the appeal. The appellate authority has not been given any power to dismiss the appeal for default, even though the appellant be absent.
5. On behalf of the opposite party, it has been asserted that all the provisions of Section 10 of the Jaipur Order were fully complied with. The Rent Controller was perfectly satisfied about the conditions required by the section and issued a notice to the landlord as required by the same. He also fully satisfied himself that the shop was really vacant within the meaning of Section 10 and made the order quite legally. As regards appeal, it was argued that it was within the power of the appellate authority to dismiss the appeal for default when the petitioners who were appellants before the Collector did not appear.
6. We have heard the learned counsel for both the parties. We do not consider it necessary to express any opinion about the legality or illegality of the proceedings before the Rent Controller as. to our mind, this petition succeeds on a short point. Section 12 of the Jaipur Order provides an appeal against the order of the Rent Controller. The Collector, Jaipur, was the appellate authority for the purposes of appeal against such orders. Sub-sections (1) and (2) of Section 12 run as follows:
'(1) Any person aggrieved by an order of the Controller may within fifteen days from the date of such order, appeal therefrom to such authority as the Government may from time to time appoint in that behalf.
(2) The appellate authority shall then send for the record of the case from the Controller, and after perusing such record and making such further enquiry as it thinks fit either itself or through the Controller, shall decide the appeal.'
7. It would thus appear that the only power which has been given to the appellate authority is that of sending for the record of the case from the Controller and after perusing such record and making such further enquiry as it thinks fit either itself or through the Controller, of deciding the appeal. It has not been given any power to dismiss the appeal for default without perusing the record. A somewhat similar provision exists in Section 421 of the Criminal Procedure Code, with respect to criminal appeals. Section 421 says that on receiving the petition of appeal and copy under Section 419 or Section 420 the appellate Court snail peruse the same and, if it considers that there is not sufficient ground for interfering, it may dismiss the appeal summarily. Various High Courts have pronounced the opinion that the wordings of Section 421 do not allow an appellate Court to dismiss the appeal for default of the appellant and that it is duty of the appellate Court to peruse the petition for appeal and the copy, of the judgment of the subordinate Court before deciding the appeal summarily. It would be enough to cite the following four rulings of four different High Courts in support of this view:
1. The first is a ruling of the Allahabad High Court reported in 'RAM CHANDAR v. EMPEROR', AIR 1923 All 175 (2) in which it was held that there was no provision in the Criminal Procedure Code lor the dismissal of an appeal on account of the non-appearance of the appellant or his pleader. The appellate Court is bound to peruse the record and to decide the appeal judicially.
2. The second ruling is that of Patna High Court reported in 'BALDEO DUBE v. EMPEROR', AIR 1924 Pat 376 in which it was held that even though no one may appear in a criminal appeal it is the duty of the Court to examine the matter and to come to some sort of decision on the merits.
3. Lahore High Court in 'ROORA v. EMPEROR', AIR 1930 Lah 659 has held that the Code does not permit the dismissal of an appeal on the ground that the appellant does not appear to support it.
4. The fourth and the last ruling is that of Sind Chief Court reported in 'EMPEROR v. BALUMAL HOTCHAND'. AIR 1938 Sind 171 in which it was held that a Court cannot dismiss an appeal summarily simply because the accused fails to prosecute his appeal. The law requires that the dismissal of the appeal shall depend upon the exercise by the Judge of his independent and impartial judgment after he has read a copy of the judgment and not upon the failure of the accused to prosecute his appeal.
8. The provisions of Section 12 (2) of the Jaipur Order are mandatory and it is the bounden duty of the appellate authority to send for the record of th^ case and to decide the appeal: after perusing such record and making such further enquiry as it thinks fit either itself or through the controller. There is no provision in the Jaipur Order of the dismissal of the appeal for default of the appellant. The learned Collector in dismissing the appeal for default exercised a jurisdiction which was not vested in him.
9. The learned Collector had a duty to decide the appeal in accordance with the provisions of Section 12 (2). This duty was at any rate a quasi-judicial duty. As the learned Collector failed to perform that duty, this Court is entitled to quash his order in appeal by a writ of certiorari. The Court of the Collector is undoubtedly an inferior Court for the purposes of a writ of certiorari and is amenable to the writ of this Court both under Article 226 of the Constitution of India as well as Section 28 of the Rajasthan High Court Ordinance.
10. The application is therefore allowed.The order of the Collector, Jaipur, dated the4th April, 1950 dismissing the petitioners' appeal for default is set aside. The appellateauthority shall hear and decide the appeal inaccordance with law. The petitioners shall getcosts of this application from the oppositeparty No. 1. We assess the counsel's fee atRs. 50/-.