Frederick William Gentle, C.J.
1. This is an application for the issue of a writ of certiorari directed to the learned Chief Judge of the Court of Small Causes, Madras, in his capacity as the appellate authority under the Madras Buildings (Lease and Rent Control) Act, 1946 (hereinafter called 'the Control Act').
2. The relevant facts are the following. The applicant is the landlord of No. 87 Thambu Chetty Street, Madras, of which premises the respondent is a tenant of the ground-floor portion, where he resides with his father and some brothers. Prior to June 1946, there appears to have been disputes between the parties regarding rent and its payment. These disputes were terminated in July 1946, by payment of the rent due. It is said that the respondent was in default in regard to the following two months' rent, July and August, 1946 ; but nothing arises regarding those months. In respect of rent for the months of September and October, 1946,, the applicant's case is that the respondent was in default and, in consequence, the applicant applied to the Rent Controller, pursuant to the provisions of the Control Act, for an order of ejectment. The Controller dismissed the application on the ground that it had not been established that there was any default. The applicant preferred an appeal to the learned Chief Judge of the Court of Small Causes in his capacity as the appellate authority under the Control Act. On January 7th, 1947, the learned Chief Judge directed notice of the appeal to the respondent. This was not served owing to some error in the address of the respondent contained in the notice.. Another order was made for the issue of a second notice returnable on February 28th. On February 26th the bailiff certified that he had served this notice on the respondent's brother. It would seem that at that time the respondent was detained in the hospital at Mayavaram, which is about 150 miles distant from Madras. Upon being apprised of the position, the learned Chief Judge directed further notice to the respondent for March 21st. According to his return, the bailiff, on March 17th tendered the notice to the respondent's brother at the premises; it was refused whereupon the bailiff affixed it to the premises. The respondent, in an affidavit, alleges that this brother is a minor. The appeal was adjourned and came on for hearing on April 2nd. No one appeared for the respondent. The learned Judge was satisfied that service had been effected as: required by the rules under the Control Act, to which reference will be made presently. He heard the appeal, allowed it and directed the respondent to give possession of the premises to the applicant. His order allowing the appeal was duly drawn up. Subsequently a copy of the order was filed in the City Civil Court, Madras, in order that execution upon it could be effected. This was pursuant to Section 9(1) of the Control Act. On April 24th, 1947, the respondent applied to the learned Chief Judge to set aside his order allowing the present applicant's appeal. This came on for hearing before the learned Chief Judge and on July 16th the order was set aside and a fresh, hearing of the appeal was directed.
3. This is an application by the applicant-landlord for a writ of certiorari against the learned Chief Judge to remove into this Court the record and to quash the order made by him on July 16th setting aside his order in appeal.
4. The material provisions of the Control Act are the following:
Section 12(1)(a) The Provincial Government may, by general or special order notified in the Fort St. George Gazette, confer on such officers and authorities as they think fit, the powers of appellate authorities for the purposes of this Act, in such areas or in such glasses of cases as may be specified in the order.
* * * * * *(3) The appellate authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as he thinks fit either personally or through the controller, shall decide the appeal.
(4) The decision of the appellate authority and subject only to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any Court of law whether in a suit or other proceeding or by way of appeal or revision.
Section 17. (1) The Provincial Government may make rules to carry out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for
(a) the procedure to be followed by Controllers and appellate authorities in the performance of their functions under this Act,
(b) the manner in which notices and orders under this Act shall be given or served.
The learned Chief Judge of the Court of Small Causes was duly appointed pursuant to Section 12(1)(a). By virtue of these provisions of Section 17, the Provincial Government, on October 10th, 1946, made the Madras Buildings (Lease and Rent Control) Rules of 1946. Rule 9 alone requires reference and it provides as follows:
All notices and orders shall be served on the person concerned-
(a) personally by delivering or tendering to him the notice or order; or
(b) if such person is not found, by leaving the notice or order at his last known place of abode or premises or by giving or tendering the same to some adult member of his family ; or
(c) if such person does not reside in the. area within the Controller's jurisdiction, by sending the same to him by registered post ; or
(d) if hone of the means aforesaid is practicable, by affixing the same in some conspicuous part of his last known place of abode or business.
5. Personal service was not effected in the present instance pursuant to (a) The bailiff reported tendering to, and refusal by the respondent's brother of notice for March 21st on March 17th, with respect to (b), whereupon he affixed the notice, as provided in (d). Since the respondent resides in Madras, (c) has no application.
6. It is beyond doubt that the learned Chief Judge at the hearing of the appeal on April 2nd when no appearance on behalf of the respondent was made, found that notice of the appeal had been served in conformity with Rule 9, above-mentioned; thereupon he heard the appeal and ordered possession of the premises to be given and his order was subsequently drawn up.
7. In his order dated July 16th, setting aside the order in appeal dated April 2nd, the learned Chief Judge observed that on the merits of the application he held that the applicant (respondent before us) was not aware of the appeal on the dates to which it was adjourned from time to time and, later, that he agreed with the contention that service of notice of an appeal is mandatory under the rules and, where it has not in fact been done, there cannot be said to be any effective or valid order against the person concerned. The learned Judge continued that with regard to his powers to set aside any previous order of his under the Rent Control Act he made a distinction between a case like the one then before him and a case where notice of an appeal, having been served on a party, he did not appear for some sufficient reason. It is perfectly clear that the order made in appeal was not set aside on the ground that any fraud had been practised upon the Court by the present applicant with regard to service of notice of appeal. It seems to me that the reason, which operated upon the learned Chief Judge and caused him to set aside the order in appeal was solely that the applicant was not aware of the appeal. In paragraph 7 of the respondent's affidavit in opposition to the present application, he sets out the history regarding notices, which were directed to be issued by the Court and the attempts to serve the notices, including the happenings on March 17th, when the bailiff tendered to the respondent's brother a copy of the notice of appeal and it was refused by the brother and the notice was thereupon affixed to the premises. In that respect the respondent says that the brother in question is a minor. The affidavit then continues that, on the day upon which the bailiff is said to have gone to the respondent's house he (the respondent) was actually in the train going to Masulipatam where he stayed until the evening of March 20th. The paragraph in the affidavit concludes:
I was thus prevented from attending the Court on the day of hearing by sufficient cause.
In the next paragraph, paragraph 8, the respondent says that fraud was practised upon the Court ; but as already pointed out, the learned Chief Judge does not find the existence of any fraud. It has to be noticed that nowhere does the respondent say that he was unaware of the appeal. He states twice that he was pre-vented from attending Court on the date fixed.
8. Learned counsel for the applicant argued that the learned Chief Judge had no authority to set aside his order since it had been passed after argument and it had been drawn up ; and there was no authority by which he could have made, in those circumstances, the subsequent order of July 16th. In this respect reference was made to the decision of the Courts in England, in Hession v. Jones (1914) 2 K.B. 421. By Order 36 Rule 33 of the Rules of the Supreme Court any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court or a Judge upon such terms as may seem fit. In that case an appeal was carried from the County Court to the Divisional Court; the successful party in the County Court did not appear because his solicitor had failed to take action as was required, upon receiving notice of appeal ; the Divisional Court, sitting as a Court of Appeal, heard the appeal and argument and allowed the appeal and the order was drawn up ; it was held that adjudication having taken place and the order having been drawn up, no application lay to have it set aside under Order 36, Rule 33. Learned counsel for the applicant contended that that decision completely covered the present matter and reflected the absence of jurisdiction and authority in the learned Chief Judge of the Court of Small Causes to set aside the previous order made by him as the appellate authority under the Control Act.
9. Learned counsel for the respondent addressed considerable argument to us regarding the service of the notice of appeal. He cited a number of cases in support of the proposition, which has universal acceptance, that no one can be condemned without having been given an opportunity of being heard. He argued that, in the present instance, the respondent had had no opportunity of being heard in the appeal. Therefore, he contended, the learned Chief Judge was correct in setting aside his order made in the appeal. Clearly, the learned Judge had jurisdiction to decide whether notice had been served as required by the rules or whether it had not been. Whether he decided correctly or incorrectly, matters not. We cannot go into the question whether he was right or whether he was wrong. Clearly he held, before he disposed of the appeal on April 2nd, that service had been effected. In my opinion, the sole question which we have to decide here is whether the learned Chief Judge had jurisdiction to set aside the order in appeal. If he had jurisdiction to set aside the order, then he was acting properly in making the order which he did on July 16th ; and, again, in that circumstance, it is not for us to consider whether he was right or whether he was wrong in making the order setting aside his decision in appeal. If, on the other hand, he had no jurisdiction to set aside his previous order, then the present applicant is entitled to come to this Court and to ask for a, writ of certiorari. In my view, it is not material for us to decide whether the service which was purported to have been effected pursuant to Rule 9 of the rules made under the Control Act was proper service or not. The learned Judge held that it was proper. The question is, was he entitled to set aside the order on the ground that the respondent was not aware of the appeal.
10. The argument of learned counsel for the respondent was that his client had been condemned without having been given an opportunity of being heard and consequently the learned Judge was correct in setting aside the order. The ground for that contention is that his client was not properly served. Order 9, Rule 23 of the Code of Civil Procedure provides for setting aside a decree passed ex parte against a defendant if the Court is satisfied that the summons was not duly served or that he was prevented by any sufficient cause from appearing at the hearing. There is a corresponding provision regarding appeals to be found in Order 41, Rule 21 of the Code. In Neelaveni v. Narayana Reddi : (1919)37MLJ599 it was held by a Full Bench of this Court that it has no power, apart from Rule 23 of Order 9, to set aside an ex parte decree ; and it must follow also with regard to setting aside an order in appeal, pursuant to Rule 21 of Order 41. It is, in my view, to be regretted that the provisions of the Code have not been made applicable to proceedings under the Control Act, and that, when the Provincial Government, exercising the power conferred by Section 17 of the Act, made rules of procedure, they did not in those rules do what would have been, I think, desirable ; they did not enable the provisions of the Code, so far as applicable and relevant, to be made use of in proceedings under the Control Act. In the absence of rules, it was argued, nevertheless the principles of them must be applied. I am unable to accept that contention. I cannot think that the appellate authority under the Control Act has wider jurisdiction than this High Court. In Neelaveni's case : (1919)37MLJ599 , it was held that the Court would have had no jurisdiction to set aside an ex parte decree in the absence of Order 9, Rule 23. In those circumstances I cannot see how the appellate authority under the Control Act can exercise jurisdiction which, had the provisions of the Code been made applicable, could have been exercised.
11. In the course of the argument for the respondent reference was made to Aijaz Ahmad v. Nazir-ul-Hasan I.L.R.(1935) All. 249. In that case there was a decree which was transferred, under Section 68 of the Code, to the Collector for execution. After the sale and confirmation of it and the return of the records to the Court, the Collector set aside the sale on the ground of fraud; the fraud being that the decree-holder had intentionally withheld from the judgment-debtor all knowledge of the proceedings for sale so that the judgment-debtor would not be able to take objection to them or to avail himself of any provision of the Code relating to them. At page 256 an observation was made, upon which reliance was placed. It is as follows:
It is well settled that a Court has inherent jurisdiction to recall and cancel its invalid orders, and to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. On principle there is no difference between an order passed by a Court and an order passed by an officer acting judicially.
Whether that observation is wider than what the circumstances and the facts in question required, is not necessary for us to consider; but they clearly were made with regard to an application to set aside an order or proceeding on the ground of fraud. In the present instance the learned Chief Judge did not set aside his order in appeal on the ground of fraud but it would seem, at the highest, he sought to act by way of ex debito justitiae because the respondent was not aware of the appeal; but, again, there was a finding that service had been effected as required by Rule 9 of the rules made under Section 17 of the Control Act. Reference was also made by learned counsel for the respondent to the decision of the Calcutta High Court in Raghmoni Dasi v. Ganada Sundari A.I.R. 1915 Cal. 49. There, a Court exercised power conferred upon it by the Guardians and Wards Act and the provisions of the Code had application. Consequently it is not surprising to find that it was held that the principle: of Section 151 of the Code could be invoked. In my view, that decision is not in point in the present case. Considerable reliance was placed upon some observations made by the Board in Ganeswar Singh v. Ganesh Das that:
Their Lordships entirely agree with the learned Judge of the High Court that it is an elementary-principle, which is binding on all persons, who exercise judicial or quasi judicial powers, that are order should not be made against a man's interest without there being given to him an-opportunity of being heard.
The judgment of their Lordships of the Privy Council then points out that, in that case, the person who was affected by an adverse order was the purchaser of some-property; proceedings were before a commissioner, who expressed that it was unnecessary to hear the purchaser before disposing of the petition and made the order. That is not the position here. Later in the judgment of the Judicial Committee it is pointed out that the purchaser should have applied to the Revenue authorities for a re-hearing, but he did not do so and it was then too late to take that course. It would seem that, so far as the present case is concerned, the decision of the Judicial Committee, to which reference has been made, is an authority for the pro-position that if the learned Chief Judge had refused or failed to direct the issue of notice to the respondent and had heard the appeal without such notice having been given at all, the respondent could have applied to the learned Chief Judge for an opportunity to be afforded to him to be heard.
12. In my opinion, since the rules of procedure made under the Act have been followed and service which those Rules require was effected and as was held by the learned Chief Judge to have been effected, he had no jurisdiction to set aside his order because he was later impressed and accepted that the respondent did not know of the date or of the fact of the hearing of the appeal. If the material provisions of the Code of Civil Procedure had been made applicable to proceedings under the Control Act, or if there had been a rule corresponding to Order 9, Rule 23, or Order 41, Rule 21 contained in the Control Act Rules then the learned Chief Judge would have had jurisdiction and authority to set aside his order. I have already expressed the view that in the absence of incorporation of the pro-visions of the Code of Civil Procedure in the rules of procedure for the tribunals under the Control Act, there is no justification for the application of the principles of those provisions; otherwise it would mean applying those provisions when they are not made applicable. In my opinion, the learned Judge acted without authority or jurisdiction when he purported to set aside his previous order.
13. Before us, some argument was directed on behalf of the respondent with reference to the Indian Soldiers Litigation Act, 1925. It was suggested that since the respondent is a Chief Petty Officer in the Royal Indian Navy, he is entitled to special privileges under that Act. There is no doubt that the provisions of that Act have been made applicable to members of the Royal Indian Navy and also the Royal Indian Air Force. It is not clear whether this contention was raised or not before the learned Judge since it was not dealt with by him. In any event the meagre matters, which have been mentioned before us, which are said to justify the respondent invoking the Act, do not bring him within the purview of its provisions. Whether there are other facts or circumstances which justify the Act being relied upon I do not know ; but so far as the information before us is concerned, there is no justification for it. However, by the observations I have made, I am not to be taken as deciding that the Act cannot be invoked. It is open to the respondent, if he thinks fit, to take such steps before the learned Chief Judge in that behalf as he may be advised.
14. It was further argued that the issue by this Court of a writ of certiorari is a matter purely of discretion and that, although it might be satisfied that the applicant has made out his case, which it is necessary for him to do, for an order for the issue of a writ, nevertheless in the circumstances of this case an order should not be made. In my view there is nothing, which justifies an order for the issue of a writ being withheld. So far as the applicant is concerned, he has certainly shown that he is not disentitled to it. He placed his objection before the learned Chief Judge against setting aside the order in appeal and immediately he came to this Court thereafter. In the present instance, if an order were not made, the effect would be that, whilst this Court considers that the learned Chief Judge had no jurisdiction to set aside his order in appeal and to direct a further hearing, the further hearing before the learned Judge would be held which this Court holds he has no jurisdiction to direct.
15. In my opinion, there is no ground to withhold the issue of the writ. There will be an order directing the records to be removed into this Court and the order of July 16th to be quashed. The applicant is entitled to his costs.
16. I agree.