Chaman Lal Grover vs Brij Lal Dhamija And Anr.
1986 Latest Caselaw 321 Del

JUDGMENT

Sunnanda Bhandare, J.

(1) The petitioner who is the owner and landlord of premises bearing No XIV/1229 Gali Giarha, Sadar Bazar, Delhi filed petition for eviction against respondent No. I in respect of these premises under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act (herein after referred to as the Act). The petitioner is this petition asserted that the premises were required for his bonafide personal need and the needs of his family members The respondent No. I was served with the summons under Section 25B of the Act on 27th March 1983 and he filed an application for leave to defend under Section 25B(4) of the Act on 3rd May, 1983. An objection was taken by the petitioner that the application for leave to defend was time barred since it was filed beyond 15 days of the service of summons. By order dated lst December 1983 the Rent Controller dismissed the application for leave to defend as being beyond the period of limitation and further passed an order of eviction under Section 14(1)(e) of the Act and granted six months time to respondent No I to vacate the .premises A revision petition was filed by respondent No. I in the High Court being C. R. No. 195 of 1984 This revision petition was dismissed by the High Court on 9th May, 1984. However, further time two months , granted to respondent No I to vacate the premises. Thereafter, on 2nd June, 1984 respondent No. I filed an application before the Rent Controller under Rule 23 of the Delhi Rent Control Rules, 1959 read with Order 37 Rule 4 and Section 151 of the Code of Civil Procedure for setting aside and quashing the order of eviction dated 1st December, 1983 The petitioner contested this application However, the Rent Controller on 12th July 1985 allowed the application and set aside the order of eviction dated 1st December, 1983. It is this order of the Rent Controller Delhi dated 12th July, 1985 which is challenged by the petitioner in this petition under Article 227 of the Constitution of India.

(2) It was contended by the learned counsel for the petitioner that the Additional Rent Controller had no jurisdiction to entertain an application of the respondent under Order 37 Rule 4 read with Section 151 of the Code of Civil 286 Procedure once the revision petition filed by the respondent was dismissed by the High Court. It was submitted that under Section 25B(9) only when no application has been made to the High Court on revision the Controller can exercise the powers of review in accordance with the provisions of Order 37 of the Code of Civil Procedure and since the respondent had already availed of the remedy of a revision petition in the High Court the remedy under Section 25b(9) was not available to him. It was further contended that once the High Court was apprised of the matter and had dismissed the revision petition the order of the Additional Rent Controller got merged with the order of the High Court. Thus if the respondent wanted to seek any further relief the only remedy open to him would be to file a petition for leave in the Supreme Court or a review petition special in the High Court. Learned counsel referred to M/s. Gojer Brothers (P) Ltd. v. Shri Rattan Lal Singh, Air 1974 Sc 1386 in support of this contention. On merits, it was contended that the learned Additional Rent Controller erred in coming to the conclusion that since respondent No. 2 was illiterate he could not read the summons and, therefore, he could not move the application for leave to defend within 15 days as required under the law. It was submitted that respondent No. I in his application had stated that he got the summons read from an advocate who told him about the next date of hearing and thus he could not plead that the notice was misleading.

(3) On the other hand, it was contended by the learned counsel for the respondent that the power of the High Court in a revision under Section 25B(8) the Act is very limited and is not as wide as in appeal thus though he High Court had dismissed the revision petition filed by respondent No. 1 the High Court bad considered only the question of law regarding maintainability of the application of the respondent for leave to defend after the statutory period of 15 days had expired. It was submitted that as per the settled law at the time the original order was passed, the Rent Controller did not have the power to extend the time fixed by the stature and thus the remedy open to the respondent was to either file a revision petition in the High Court or file an application under Section 25-B(9) before the Rent Controller because the final decree was already passed. .Learned counsel submitted that after the High Court dismissed the revision petition the respondent had filed a Special Leave Petition to the Supreme Court which is still pending, however as he and also the choice of moving an application under Section 25B(9) he chose to get the order of the Rent Controller, Delhi dated 1st December 1983 reviewed. It was submitted that the revision was dismissed by the High Court in liming without assigning any reasons mainly because the High Court felt that the Rent Controller was right in dismissing the application for leave to defend since he had no power to condone the delay. It was submitted that since the revisional power to the High Court under Section 25B(8) is restricted an application for review under Order 37 Rule 4 read with the Rule 23 and Section 25B(9) of the Act was maintainable even after the revision petition was dismissed by the High Court It was further submitted that since the High Court had exercised its revisional jurisdiction and not appellate jurisdiction the order did not get merged with that of the High Court. Learned counsel relied on Dr. Mukhtar Ahmed v. Smt. Masha Allah Begum, 1979 (1)R.C.R 284, Gurdittamal v.Bal Sarup, and Onkar Singh v. Shanti Devi, in. support of his contention.

(4) Section 25-BDELHI RENT CONTROL ACT, 1958^ of the Act provided for special procedure for the disposal of application for eviction on the ground of bonafide requirements. Under Sub-section (1) every application by a landlord for the recovery of possession of any premises on the ground specified in Clause (e) of proviso to Sub-section (1) of Section 14 or under Section 14A has to be dealt with in accordance with the procedures specified in this Section. As soon as an application is filed by a landlord for eviction under Section 14(l)(e) or Section 14A of the Act the controller is required to issue summons in relation to this application in a form specified in the IIIrd Schedule. Sub-section (3) provides for the service of such summons on the tenant. Under Sub-section (4) a tenant who is served with such summons cannot context the prayer for eviction unless he files an affidavit stating the grounds on which be seeks to contest the application for eviction and obtains leave from the Controller as provided under Sub-section (5),(6) and (7) of Section 25-B. However if the tenant defaults in his appearance in pursuance of the summons or fails to get leave to defend, the statement made by the landlord in the application for eviction is deemed to be admitted by the tenant and the landlord is entitled to an order for eviction on the ground of bona fide need. The form specified in the IIIrd Schedule gives the period within which the tenant is summoned to appear before the Controller. The time specified is 15 days of the service of the summons. If a tenant is aggrieved by an order of the Rent Controller granting recovery of possession of any premises in accordance with this procedure the only remedy open to his is to file a revision in the High Court. However when no application has been made under Sub-section (8) to the High Court on revision a review petition can be filed before the Rent Controller himself in accordance with the provision of Order 37 of the Code of Civil Procedure. It may be useful to reproduce Sub-section (8) and (9) of Section 25-B of the Act :- "(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section ; Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. (9) Where no application has been made to the High Court on revision, the Controller may exercise the power of review in accordance with the provisions of Order XIvii of the first Schedule to the Code of Civil Procedure, 1908." Rule 23 of the Delhi Rent Control Rule, 1959 provides the in deciding any question relating to procedure not specially provided by the Act and the Rules, the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provision contained in the Code of Civil Procedure,1908.

(5) Construing these provisions of the Act and the Rule this Court in Gurditta Mal v. Bal Sarup. 1980 D.LT. 321 held that on summons being served the tenant must enter appearance and apply for leave to context within 15 days thereafter and since Section 5 of the Limitation Act did not apply and as such the delay in entering, appearance or not filing an application for leave to contest could not be condoned, however the Court can after an order of eviction is passed apply the analogy of Order 37 Rule 4 of the Code of Civil Procedure and set aside the eviction order. This view was again reiterated by this Court in Onkar Singh v. Shanti Devi, 1981 D.L.T. 463. Thus it is clear that even if the application for leave to defend is rejected by the Rent Controller as being beyond time once a decree for eviction is passed the Rent Controller has the power to review his own judgment and set aside the order granting eviction of the tenant and further grant leave to defend and decide the case afresh on merits. However, in both these cases referred to herein above an order of remand was passed by the High Court in its revisional jurisdiction directing the Rent Controller to review the case by exercising its power of review whereas in the present case the High Court had dismissed the revision a petition in liming and it was thereafter that the respondent moved the application for review under Rule 23 of the Delhi Rent Control Rules, 1959 read with Order 37 Rule 4 and Section 151 of the Code of Civil Procedure. Thus the basis question to be decided is whether the order of the Controller got merged with the order of the High Court passed in the revision and if so, could the Rent Controller in that event review the order under Section 25B(9). It is true that the revisional jurisdiction of the High Court under proviso to Subsection (8) of Section 25B is not as wide as in appeal. When a revision is preferred the only thing the High Court due to examine the records in order to satisfy itself that the decision of the Rent Controller is according to law. The High Court may interfere under this sub-section if the order of the Rent Controller is without jurisdiction or contrary to law or to the express provision of the Act and not otherwise. But as held by the Supreme Court in Shankar Ramachandra Abhyankar v. Krishnaji Dattaraya Bapat, this jurisdiction which the High Court exercise is a part of the general appellate jurisdiction of the High Court as a superior court and, therefore, the Principle of merger could apply to orders passed in exercise of revisional jurisdiction also. The doctrine of merger has been considered in detail by the Supreme Court in Mil. Gojer Brothers (P) Limited case, (supra) and it is observed thus:-

"THE juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the (r)ame time, more than one operative order governing the same subject matter. Therefore, the judgment of an inferior court, if subjected to an examination by the superior court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior Court. In other words, the Judgment of the inferior Court loses its identity by its merger with the judgment of the superior court."

"STATED in this form the principle may appear to be unexceptionable but the problem has many facts. What, if the higher court dismisses the proceedings before it summarily without a speaking. order? Does the judgment of the lower court still merge in the unspeaking order of the higher court. What, if the powers of the higher Court are invoked in the exercise of its revisional and. not appellate jurisdiction? Does a judgment or an order passed in the exercise of a severely restricted jurisdiction like that under Section 115 of the Code of Civil Procedure wipe out of existence; a decree or order passed in the exercise of a wider jurisdiction as may be exercised by a Court possessed of a suit? Does it make any difference to the application of the doctrine of merger that the higher Court has not modified or reversed the judgment of the lower Court but has merely affirmed it ? These nuances bad once raised issues on which conflicting views were expressed by the Courts. Over the years, the area of conflict has considerably narrowed down and most of the problems touched by us have been resolved by this Court."

(6) Thus it is clear that once a party onse to challenge the decree of the lower court before a superior court, and the superior court confirms, varies or reverses the decree the decree to be executed is the decree of the superior court. This also seems to be reason why the legislature also in Sub-section (9) of Section 25B of the Act provides that the Controller may exercise the powers of review in accordance with provisions of Order XIvii of the 1st Schedule to the Code of Civil Procedure, 1908 only if no application has been made to the High Court in revision. It is true that the Rent Controller proceeds to decide a petition for eviction refusing leave to defend because the application was time barred he passes the order of eviction only on the available evidence adduced by the landlord However, when such eviction order is challenged in the High Court the High Court considers not only the question of refusal of the application of the tenant for leave to defend but also the final decree of eviction. Thus if the High Court feels that it is in the interest of justice it can remand the case back to the Controller to review its order under Order 37 and Section 25B(9). However if it does not consider it necessary to do so it can finally dispose of the petition on merits. In such a case Where the. High Court instead of remanding the case back to the Controller decides to finally dispose of the case, the order of the Controller docs necessarily get merged with the final order of the High Court. In my opinion, therefore, when a final seal is put by the High Court no application for review can lie to Rent Controller. If the tenant is further aggrieved by the order of the High Court the only remedy open to him is to file a review petition in the High Court or to file a Special Leave Petition to the Supreme Court. Though, it is true that in the present case the Rent Controller and no option but to dismiss the application for leave to defend because it was beyond time, the High Court did not remand the matter back to the Controller but instead dismissed the petition in liming. In order to ascertain whether the respondent had in the revision petition also challenged the order of eviction I called for the record of C.R 195 of 1984. On perusal I find that respondent No. 1 had not only challenged the order refusing to grant leave to defend on the ground of limitation but had challenged the order of eviction on merits and though the High Court dismissed it in liming both the parties were represented and heard. That being the position, in my opinion, the impugned order is clearly without jurisdiction

(7) In the result the petition is allowed. However the respondent if given six months time to vacate the premises. Parties to bear their own. costs.