Ali Ahmed vs Roshan Das
1972 Latest Caselaw 126 Del

JUDGMENT

S.N. Andley, J.

(1) A preliminary objection has been raised to the maintainability of the regular second appeal which was decided by Khanna J. on March, 22, 1971 and it is, therefore, urged that this letters patent apppeal is also not competent.

(2) The respondent landlord filed a suit for ejectment of the appellant under section 13 of the Delhi and Ajmer Rent Control Act, 1952, hereinafter referred to as "the said Act" on grounds of non-payment of rent ; mis-user of the premises and damage to the property. This suit was filed in the civil Court having jurisdiction. The suit was compromised on May 9, 1958 and a decree for ejectment was passed in favor of the respondent and against the appellant. The condition of the decree was that if the appellant paid Rs. 300.00 in full and final settlement up to July 1, 1958, the decree for ejectment shall be deemed to have been satisfied. The appellant did not make payment in accordance with the compromise or the decree. The respondent took out execution of the decree for ejectment and an application under section 47 of the Code of Civil Procedure was filed by the appellant in the executing Court on the ground that the decree for eviction was passed solely on the basis of and in terms of the compromise without the trial Court having recorded its satisfaction as to the existence of any of the three grounds of ejectment and was, therefore, in contravention of the mandatory requirements of section 13 of the said Act. The objections of the appellant were dismissed by the executing Court as also by the first appellate Court which was the Court of the Senior Subordinate Judge with enhanced appellate powers. Against the judgment of the first appellate Court, the appellant filed regular second appeal No. 17 of 1970 which was dismissed, as stated earlier, by Khanna J. by his order dated March 22, 1971 and, after obtaining a certificate from the learned Single Judge, this letters patent has been filed.

(3) Even though the objection to the maintainability of the second appeal was not raised before the learned Single Judge, we have entertained the objection because it goes to the root of the matter.

(4) All suits, applications and other proceedings contemplated by the said Act were to be tried by the ordinary civil Courts and this jurisdiction was conferred by sub-section (1) of section 33 of the said Act which provides that any civil Court in the State of Delhi or Ajmer which has jurisdiction to hear and decide a suit for recovery of possession of any premises shall have jurisdiction to hear and decide any case under this Act relating to such premises if it has pecuniary jurisdiction and is otherwise competent to hear and decide such a case under any law for the time being in force. It is to be noted that the expression with reference to the proceedings which could be taken under the said Act which has been used in this section is "any case under this Act". Section 33 appears in Chapter V of the said Act which has provisions relating to the jurisdiction of Courts, appeals, review and revision. Sub-section (4) of section 33 provides : "for the purposes of this Chapter, a case under this Act, includes any suit, application or other proceeding under this Act and also includes any claim or question arising out of this Act or any of its provisions Section 34 of the said Act provide for appeals. Sub-section (1) of this section provides for a first appeal against any decree or order of a Court passed under the said Act to the Courts prescribed therein. Sub-section (2) of this section prohibits a second appeal because it provides that "no second appeal shall lie from any decree or order passed in any case under this Act." It is again to be noticed that the expression used in this sub-section is "in any case under this Act".

(5) The appellant wants to meet the objection regarding the maintainability of the second appeal on the ground that the order under appeal is an order in execution of an application under section 47 of the Code of Civil Procedure which order, by reason of sub-section (2) of section 2 of the Code, is itself a decree and, therefore, appealable as the decree of a civil Court under section 96 of the Code for a first appeal and under section 100 of the Code for a second appeal. It is further contended that such an order made on an application under section 47 of the Code is not an order passed in any case under this Act so as to be covered by the prohibition contained in sub-section (2) of section 34 of the said Act.

(6) One principle of law which has been accepted is that if a second appeal is not provided against the decree in a suit, a second appeal against an order in execution of such decree will also not be available by way of a second appeal. This principle was laid down in I.L.R. 43 Allahabad 403 in re: Sant Prasad v. Bhawani Prasad and another following the decisions in I.L.R. Ii Calcutta 169; I.L.R. 27 Calcutta 484; I.L.R. 30 Madras 212 and I.L.R. 30 Bombay 113. The principle as laid down in aforesaid Allahabad decision was followed by Kapur J. in the case reported in (1950) 52 P.L.R. 13 in re : Hari Kishan v. Amar Nath. In this case a compromise had been arrived at in execution proceedings consequent upon a decree for eviction. The terms of the compromise not having been complied with, execution of the decree was taken out and the tenant pleaded a fresh compromise. These objections were dismissed. Later fresh objections were filed under Punjab Act No. Iii of 1949 but these objections were also dismissed by the executing Court as also by the District Judge in appeal. A second appeal was filed to which objection was taken on the ground that since no second appeal lay from the original matter which was under Punjab Act No. Iv of 1947, no second appeal would lie in execution of the order passed under that section. Kapur J. accepted this objection and held the second appeal to be incompetent. This decision, it is contended by the appellant, was overruled by the Punjab High Court in the case in re : HansRaj Sali? Ram v. L. Nurarjan Lal. Discussing the judgment of Kapur J., Weston, C.J., held that under the Punjab Urban Rent Restrictior. Act, 1947, matters arising under section 13 of this Act are to be decided by the Rent Controller as distinguished from a Civil Court and an appeal against his decision also does not lie to the ordinary civil Court but to such appellate authority as may be specified by the Provincial Government which was the District and Sessions Judge of each district. It was further held that the District and Sessions Judge acts as a persons designata and not as a civil Court while the execution of orders made by the Rent Controller or the District and Sessions Judge in appeal is to be in the ordinary civil Courts. The learned Chief Justice observed that when a matter is made disposable by the ordinary civil Courts all the incidents of the ordinary procedure of civil Courts shall attach to the disposal of that matter, and those incidents of ordinary procedure will, if necessary, include rights of appeal. It was for this reason that it was held that a second appeal was competent. As we read this decision, it held, overruling Kapur J., that a second appeal was competent because the authority which decided the original matter different from the civil Courts which dealt with the execution of the order of the Rent Controller. We do not think this decision expresses disagreement with the principle that if a second appeal does not form the original matter, no second appeal would lie in execution of the order passed in the original matter. In our opinion, this principle applies to cases under the Delhi and Ajmer Rent Control Act) 1952 where there is no dichotomy of authorities to decide the original matter or to execute any orders in the original matter. Under the said Act both are in the jurisdiction of the civil Courts which not only pass the order in the original matter but also execute it. On this ground alone, the objection, in our opinion, is well founded.

(7) But the matter may be approached from another point of view.

(8) For the purpose of Chapter V of the said Act which provides for jurisdiction of Courts, appeals, review and revision, "a case under this Act" includes "any claim or question arising out of this Act or any of its provisions . . " as one finds from sub-section (4) of section 33 of the said Act. Now the claim made by the appellant in his application under section 47 of the Code was based upon and, therefore, arose out of the provisions of section 13 of the said Act because it was contended that the Court had not satisfied itself as required by this section about the existence of any of the three grounds which were the basis for the suit for eviction. The claim of the appellant clearly arose out of the provisions of section 13 of the said Act and, therefore, the proceedings dealing with such claim or objection would be a case under the said Act. The moment this conclusion is arrived at, sub section (2) of section 34 of the said Act would be a clear bar to the main- tainability of a second appeal because the order of the executing Court would be an order passed in case under the said Act.

(9) The contention of the appellant that an order upon an application under section 47 of the code of civil Procedure, being a decree gives rise to a right to a first appeal under section 96 of the Code or to a second appeal under section 100 of the Code cannot, therefore, be accepted.

(10) We, therefore, uphold the preliminary objection and hold that the second appeal which was decided by Khanna J. was incompetent being against the provisions of sub-section (2) of section 34 of the said Act and, therefore, this letters patent appeal is also incompetent.

(11) The result is that the second appeal being incompetent, this letters patent appeal is also rendered incompetent and not maintainable. The position, however, is that even if the second appeal was not competent, it would have been open to the appellant to urge before the learned Single Judge either that the second appeal be treated as a revision under section 35 of the said Act or as a petition under Article 227 of the Constitution in view of the fact that the jurisdiction of the trial Court to pass a decree upon compromise was challenged in view of the provisions of section 13 of the said Act. The proper order for us, therefore, to pass would be to direct, and we do so direct, that the second appeal be placed before the learned Single Judge again. It will be open to him, if he is satisfied, either to treat the second appeal .as a revision or as a petition under Article 227 of the Constitution and to dispose it of accordingly. We are making this order because objection to the maintainability of the second appeal was not raised before the learned Single Judge when he was deciding it. If such an objection had been raised, the appellant could have prayed that the second appeal be treated as a revision under section 35 of the said Act or as a petition under Article 227 of the Constitution. We want to give him this opportunity to make this submission to the learned Single Judge. The case is, therefore, remanded to the learned Single Judge for proper orders if a prayer is made to him to treat the second appeal as a revision or as a petition under Article 227 of the Constitution. In view of the fact that the respondent had not taken objection to the maintainability of the second appeal before the learned Single Judge, we make no order as to costs of this appeal.