Rukmani vs Prabhat Kishor'
2023 Latest Caselaw 497 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

        THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI

               WRIT PETITION (M/S) NO. 2539 OF 2021

                          24th FEBRUARY, 2023

Between:

Prabhat Kishor                                ......            Petitioner

and

Smt. Rukmani Devi                              ......           Respondent



Counsel for the petitioner           :   Mr. Sagar Kothari and Ms. Sunayna
                                         Kohli Kothari, learned counsels

Counsel for the respondent       :       Mr.   Siddhartha    Sah,    learned
                                         counsel


The Court made the following:

ORDER:

This petition, under Article 227 of the

Constitution of India, has been preferred to assail the

order dated 22.11.2021, passed by the Prescribed

Authority / learned Civil Judge (Senior Division),

Rishikesh, in P.A. Case No. 05 of 2020, titled 'Smt.

Rukmani Vs Prabhat Kishor'.

2. By the impugned order, the application

preferred by the petitioner, who is the defendant /

tenant in the aforesaid case, under Order 7 Rule 11 CPC

has been rejected on the ground that the same is not

maintainable.

3. Learned counsel for the respondent has

supported the view taken by the Prescribed Authority by

placing reliance on Section 38 of the U.P. Urban

Buildings (Regulation of Letting, Rent and Eviction) Act,

1972, which reads as follows:

"38. Act to override T.P. Act and Civil Procedure

Code. - The provisions of this Act shall have effect

notwithstanding anything inconsistent therewith

contained in the Transfer of Property Act, 1882 (Act No.

IV of 1882), or in the Code of Civil Procedure, 1908

(Act No. V of 1908)."

4. He has also placed reliance on the judgment of

a learned Single Judge of this Court, in Majid Khan Vs

Gopal Krishna Verma, (2016) 116 ALR 281, wherein the

Court after referring to Section 34 of the U.P. Urban

Buildings (Regulation of Letting, Rent and Eviction) Act,

1972, and Rule 22 of the U.P. Urban Buildings

(Regulation of Letting, Rent and Eviction) Rules, 1972,

concluded that an application under, or in the nature of

Order 7 Rule 11 CPC cannot be entertained by the

Prescribed Authority.

5. On the other hand, learned counsel for the

petitioner has placed reliance on Section 34(1)(g), read

with Rule 22(1)(f) of the U.P. Urban Buildings

(Regulation of Letting, Rent and Eviction) Act, 1972, and

the U.P. Urban Buildings (Regulation of Letting, Rent and

Eviction) Rules, 1972 in support of his submission that

the Prescribed Authority had the jurisdiction to deal with

the petitioner's application under, or in the nature of

Order 7 Rule 11 CPC.

6. Section 34 of the U.P. Urban Buildings

(Regulation of Letting, Rent and Eviction) Act, 1972

reads as under:

"34. Powers of various authorities and procedure to be followed by them - (1) The District Magistrate, the Prescribed Authority or any [Appellate or Revising Authority] shall for the purposes of holding any inquiry or hearing [any appeal or revision] under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908), when trying a suit, in respect of the following matters namely,

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) receiving evidence on affidavits;

(c) inspecting a building or its locality or issuing commission for the examination of

witnesses or documents or local investigation;

(d) requiring the discovery and production of documents;

(e) awarding, subject to any rules made in that behalf, costs or special costs to any party or requiring security for costs from any party;

(f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith;

(g) any other matter which may be prescribed.

(2) The District Magistrate, the prescribed authority or [Appellate or Revising Authority], while holding an inquiry or hearing [any appeal or revision] under this Act, shall be deemed to be a Civil Court within the meaning of [Sections 345 and 346 of Code of Criminal Procedure, 1973] and any proceeding before him or it to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (Act No. XLV of 1860).

(3) Where any costs or other sum of money awarded under this Act by the District Magistrate or the Prescribed Authority or [the Appellate or Revisional Authority] remains unpaid, he or it may issue a certificate of recovery in respect thereof in the prescribed form, and any person in whose favour such certificate is issued may apply to the Court of Small Causes having jurisdiction under the Provincial Small Cause Courts Act, 1887 (Act No. IX of 1887) for recovery of the amount specified in the certificate. Such Court shall thereupon execute the

certificate or cause the same to be executed in the same manner and by the same procedure as if it were a decree for payment of money made by itself in a suit.

(4) Where any party to any proceeding for the determination of standard rent of or for eviction from a building dies during the pendency of the proceeding, such proceeding may be continued after bringing on the record:

(a) in the case of the landlord or tenant, his heirs or legal representatives;

(b) in the case of unauthorised occupant, any person claiming under him found in occupation of the building.

(5) Where any person has been evicted from a building in pursuance of any order of the District Magistrate or the Prescribed Authority or made on appeal under this Act, the District Magistrate or the Prescribed Authority, as the case may be, may after service or publication of a notice in that behalf on such persons and in such manner as may be prescribed, remove or cause to be removed or dispose of, in such manner as may be prescribed, any specific property remaining on such building.

(6) Affidavits to be filed in any proceeding under this Act shall be made in the same manner and conform to the same requirements as affidavits filed under the Code of Civil Procedure, 1908 (Act No. V of 1908), and may be verified by any officer or other person appointed by the High Court under clause (b) or by an officer appointed by any other Court under clause (c) of Section 139 of the said Code.

(7) The District Magistrate, the Prescribed Authority or [the Appellate or Revisional Authority] shall record reasons for every order made under this Act.

(8) For the purposes of any proceedings under this Act and for purposes connected therewith the said authorities shall have such other powers and shall follow such procedure, principles of proof, rules of limitation and guiding principles as may be prescribed."

(emphasis supplied)

7. Rule 22 of the U.P. Urban Buildings

(Regulation of Letting, Rent and Eviction) Rules, 1972

reads as under:

"22. Powers under the Code of Civil

Procedure, 1908 [Section 34(1)(g)]. - (1) The District Magistrate, the Prescribed Authority or the Appellate or Revising authority shall, for the purposes of holding any inquiry or hearing any appeal or revision under the Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters namely,

(a) the power to dismiss an application, appeal or revision for default and to restore it for sufficient cause;

(b) the power to proceed ex parte and to set aside, for sufficient cause, an order passed ex parte;

(c) the power to award costs and special costs to any successful party against an unsuccessful party;

(d) the power to allow amendment of an application, memorandum of appeal or revision;

(e) the power to consolidate two or more cases of eviction by the same landlord against different tenants;

(f) the power referred to in Section 151 and 152 of the Code of Civil Procedure, 1908 to make any order for the ends of justice or to prevent the abuse of the process of the authority concerned."

(emphasis supplied)

8. So far as the impugned order is concerned,

there is no reason disclosed by the Prescribed Authority

as to why, according to him, the provisions of Order 7

Rule 11 CPC, are not attracted in eviction proceedings

under Section 21(1) of the U.P. Urban Buildings

(Regulation of Letting, Rent and Eviction) Act, 1972.

9. I have perused the judgment of this Court in

Majid Khan (supra). With due respect, I have difficulty

in accepting the said view, for the reason, that Section

38 merely provides that the provisions of this Act shall

have effect notwithstanding anything inconsistent

therewith contained in, inter alia, the Code of Civil

Procedure. This, to my understanding, only means that

if there is a provision in the U.P. Urban Buildings

(Regulation of Letting, Rent and Eviction) Act, 1972,

which is inconsistent with the provision contained in the

Code of Civil Procedure, the same would prevail over the

provision and the CPC.

10. Clause (g) of Section 34 leaves it open to the

State to frame subordinate legislation by prescribing any

other matter in respect whereof the powers under the

Civil Procedure Code would vest in the various

authorities created under the Act. Rule 22, which has

been taken note of hereinabove, inter alia, vests powers

under Sections 151 and 152 of CPC on the authorities

created under the Act "to make any order for the ends of

justice, or to prevent the abuse of the process of the

authority concerned."

11. There is no provision in the U.P. Urban

Buildings (Regulation of Letting, Rent and Eviction) Act,

1972, which expressly and generally excludes the

application of the CPC, to the proceedings under the said

Act. On the contrary, Section 34 vests the powers in the

District Magistrate, the Prescribed Authority, or any

Authority or Revising Authority, the powers as are

vested in the Civil Code under the Code of Civil

Procedure, 1908, in respect of several enumerated

matters. While holding an enquiry or hearing under the

said Act, the Authorities under the Act are deemed to be

a Civil Court within the meaning of Sections 345 and 346

of the Cr.P.C., and any proceeding before the Authority

is deemed to be a civil proceeding within the meaning of

Sections 195 and 228 of the IPC. For the purpose of any

proceeding under the said Act, and for purposes

connected therewith, the Authorities have such other

powers, and shall follow such procedure, principle of law,

rules of limitations, and guiding principles, as may be

prescribed.

12) On a perusal of the aforesaid Rules, it is found

that these rules are replete with provisions which, again

and again, refer to the Code of Civil Procedure. For

instance, Rule 4(2) deals with the aspect of signature

and verification of the application and the reply, and

states that they would be signed and verified in the

manner provided in Rules 14 and 15 of Order VI of the

First Schedule to the Code of Civil Procedure. The other

Rules, which take us back to the Code of Civil Procedure,

are Rule 6 (address for service to be filed); Rule 13(2)

(application for release of vacant buildings); Rule 15(2)

(application for release of buildings under occupation of

tenant). There are several other rules which are pari

materia with the provisions of the Code of Civil

Procedure. The authorities under the aforesaid Act,

therefore, have the trappings of a Civil Court. Though,

the provisions of the Code of Civil Procedure may not be

applicable in their entirety, the principles in my view,

would continue to apply to proceedings under the

aforesaid Act before the authorities under the Act, unless

their application is either expressly, or by necessary

implication excluded on account of their being an

inconsistency in the provisions of the CPC, and the

provisions incorporated in the Act, or the Rules framed

thereunder. The statutory purpose of Order 7 Rule 11

CPC is also to prevent abuse of the process of the

authority, by seeking to nip in the bud a proceeding

which may not be maintainable before one or the other

of the various authorities under the Act.

13. There is no provision pointed out by learned

counsel for the respondent in the U.P. Urban Buildings

(Regulation of Letting, Rent and Eviction) Act, 1972,

which expressly, or even by necessary implication,

excludes the application of Order 7 Rule 11 CPC to

proceedings before one or the other authorities under

the Act, or which prescribes a procedure inconsistent to

the procedure prescribed in Order 7 Rule 11 CPC.

14. In the light of the aforesaid, I am of the view

that the decision in Majid Khan (supra) may need

reconsideration. Accordingly, I refer the judgment of

this Court in Majid Khan (supra) to a larger Bench for its

consideration.

15. List before the larger Bench on 12.04.2023.

16. Interim orders to continue till further orders.

________________ VIPIN SANGHI, C.J.

Dt: 24th FEBRUARY, 2023 Negi