Kundan Lal Handa Etc. vs Gian Chand Jain, R.C. Tribunal, ...
1971 Latest Caselaw 352 Del

JUDGMENT

V.D. Misra, J.

(1) In this petition under Article 227 of the Constitution of India the petitioner prays for the quashing of the order of the Rent Control Tribunal dated August 19, 1971, in the following circumstances:

(2) Messrs Mussadi Lal & Sons, a Joint Hindu family firm, was the owner of premises bearing Municipal Nos. 170/171 -E, Kamla Nagar, Delhi. An application for eviction of the petitioners under the Delhi Rent Control Act (hereinafter referred to as "the Act") was filed by the landlords and an order of eviction was passed by the Rent Controller on September 21, 1967. The petitioners went in appeal to the Rent Control Tribunal. During the pendency of this appeal, there was a partition of the joint Hindu family firm and the property in dispute fell to the share of Laxmi Narain respondent. An application was made on February 28, 1968, by Laxmi Narain under Order 21, Rule 11, read with Section 146 of the Code of Civil Procedure, and Order 21, Rule 19, read with Section 151 of the Code of Civil Procedure, before the Additional Rent Controller praying that his name be substituted, recorded as a decree-holder and he may be permitted to execute the order of eviction. The petitioners opposed this application and, inter alia, objected to the maintainability of the same and challenged/OCMS standi of Laxmi Narain respondent. The Additional Rent Controller by his order dated April 17, 1970, dismissed the application. Thereafter, Laxmi Narain, respondent, filed an appeal under Section 38 of the Act before the Rent Control Tribunal which was allowed, and the order of the Additional Rent Controller was set aside.

(3) Mr. C.P. Wig, learned counsel for the petitioners contends that no appeal lay to the Rent Control Tribunal under Section 38 of the Act in as much as the order of the Additional Rent Controller was not an order made under the Rent Control Act. He thus submits that the Tribunal acted without jurisdiction in entertaining the appeal and setting aside the order of the Additional Rent Controller.

(4) Mr. Daljit Singh, learned counsel for respondent Laxmi Narain, contends that the petitioners did not raise any objection about jurisdiction or the maintainability of the appeal before the Rent Control Tribunal and he should not be allowed to raise this objection for the first time in the present proceedings. He further contends that the order passed by the Additional Rent Controller was an order under this Act in view of Section 42 of the Act and so the appeal was competent. He also submits that powers under Article 227 resulted from impugned order.

(5) The scope of supervisory powers conferred on the High Court by Ie 227 of the Constitution of India came to be considered by I. D, Dua, (now the Hon'ble Judge of the Supreme Court) in Shri Chander Bhan v. Chatter Singh and another, A.I.R. 1968 Delhi 229, wherein following a Bench decision of the Punjab High Court in Sant Ram Chopra v. Jullundur Improvement Trust, (1966) 68 P.L.D. 988, it was observed :

".........THEsupervisory powers conferred by Article 227 are not greater than the powers under Article 226 and they are meant to be utilised in cases where grave injustice has resulted and are to be used generally, in keeping the subordinate Courts and Tribunals within the bounds of their authority and the High Court would not be Justified in interfering with the findings of those Tribunals unless it comes to the conclusion that the findings recorded are based on no material or where otherwise perverse. Assuming that from one point of view, powers under Article 227 of the Constitution may be cons''dered to be slightly wider than those of Article 226, as the High Court may be empowered in some cases, inter alia, even to remand cases on the superintendence side, and in some respects narrower, as this power is limited only to seeing that the subordinate Tribunal functions within the limits of its authority Nagendra Nath v. Commissioner of Hills Division, the fact, however, remains that interference under Article 227 is intended only for the purpose of promoting the cause of substantial justice. In any event, in common with Article 226, the existence of power under Article 227 is also discretionary, depending as it does on the facts and circumstances of each case."

At this stage the relevant provisions of Sections 38 and 42 of the Delhi Rent Control Act may be reproduced (After doing so, judgment proceeds). Section 42 gives to the Controller all the powers of a civil court for the purpose of executing his order as a decree of civil court. The powers of a civil court while executing the decree are contained in Order 21 of the Code of Civil Procedure. Thus various questions, which may be raised by a party before a civil court under Order 21, can be raised before the Controller since by fiction of law the Controller acts as a civil court.

(6) The contention of Mr. Wig is that when the Controller passes an order while acting as a Court executing a decree under Order 21, then the decision is under the Code of Civil Procedure and not under the Delhi Rent Control Act. I am afraid I cannot agree to this proposition. The controller having been empowered by Section 42 of the Act with all the powers of civil court executing a decree, his orders will be orders under the Delhi Rent Control Act and not under the Code of Civil Procedure. The effect of Section 42 in other words is to extend the relevant provisions of Order 21 of the Code to the proceedings under the Delhi Rent Control Act. In this connection, Section 36 of the Act can be looked at with advantage. Section 36 empowers the Controller with the powers that vest in a civil court under the Code of Civil Procedure when trying a suit in respect of certain matters enumerated therein. While exercising the powers conferred on the Controller by this Section, it cannot be said that the orders passed by the Controller are not passed under the Delhi Rent Control Act and a person aggrieved of those orders has to seek his remedy under the law outside the provisions of the Act.

(7) Their Lordships of the Supreme Court in The Central Bank of India Ltd., v. Gokal Chand, , while considering the ambit of Section 38 of the Act, observed as under :-

"THE object of Section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of Section 38(1), the words 'every order of the Controller- made under this Act,' though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceedings, the Controller may pass many interlocutory orders under Sections 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceedings they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under Section 37(2) is an order passed under the Act and is subject to appeal under Section 38(1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal." These observations show that during the proceedings the Controller is required to pass various interlocutory orders which are passed by the civil court under the provisions of the Code of Civil procedure and these orders can be the subject matter of appeal under Section 38 of the Act provided they affect some right or liability of some party. It is in this context that their Lordships gave the example of the Rent Controller passing an order refusing to set aside an ex parte order which can be the subject of appeal to the Rent Control Tribunal. Now the order in the example can only be passed by the Rent Controller under the provisions of the Code of Civil Procedure. If the contention of Mr. Wig was correct then no appeal lay against that order under Section 38 of the Act and the party affected by that order was required to seek his remedy under the Code of Civil Procedure. In an unreported decision of this Court in Shrimati Gian Wati & Another v. Shri Ranpat Singh and others, (SAO. No. 350 of 1969), decided on March 2, 1971, V.S. Deshpande, J. following the decision in The Central Bank of India Ltd, held that "an order refusing the amendment of the eviction application or joining some strangers as parties to it does not decide in any way the merits of the case or any part of it, "and thus held that the appeal against that order was not maintainable to the Rent Control Tribunal. It does not support the contention of Mr. Wig, who has referred to this decision that the appeal was held not maintainable on the ground that Section 38(1) of the Act was not applicable since the parties had to seek their remedy under some other law like the Code of Civil Procedure."

(8) Mr. Wig has then referred to Messrs Lachhman Das Moti Ram v. Shori Lal, 1960 65 Plr 254, This was a case under the Delhi and Ajmer Rent Control Act, 1952. Section 11 of that Act prescribed the limit for presenting an application for fixation of standard rent. A provide to this Section authorised the Court to entertain the application after the expiry of the limit on period if it was satisfied that the applicant was prevented by sufficient cause filing the application in time. The Controller did not pass an order under this proviso but applied Section 14 of the Limitation Act for holding the application to be with in limitation. It was held by the High Court that the decision of the Controller was not under the proviso of that Rent Act This has no relevancy to the present case since here the Controller has been admittedly given the powers under Section 42 of the Act.

(9) In view of the above discussion, it cannot be said that the order passed by the learned Additional Rent Controller was not an order passed under this Act and was thus not appealable. The petition, therefore, fails and is dismissed with costs.