The Delhi High Court recently comprising of a bench of Justice Navin Chawla observed that the application of the petitioner, though titled as one filed under Order IX Rule 13 of the Code, was one U/S 25B(9) of the Act and therefore, in terms of Section(s) 25A and 25B of the Act, any order passed thereon shall not be appealable under S.38 of the Act. The only remedy for the petitioner would be under S.25B(8) of the Act to this Court. (Bata India Limited V. Smt. Sarla Sharma (Since Deceased) Through Lrs And Ors)
Facts of the case
An Eviction Petition was filed by the respondent under S.14(1)(e) of the Act which was decided ex parte. Petitioner had filed an application under Order IX Rule 13 of the Code praying for setting aside of the eviction order passed ex parte but was dismissed on the ground of failure to comply with the conditions of deposit in terms of the prior order.
The petitioner filed an appeal under S.38 of the Act before the learned Rent Control Tribunal against the order of dismissal of the application, maintainability of the same is the issue for consideration before this court.
Contention of the Parties
The learned senior counsel for the petitioner has submitted that the application filed by the tenant in such circumstances is not one under Order IX Rule 13 of the Code. This submission also fortifies the conclusion that such an application is to be considered as one filed under Section 25B(9) of the Act and as seeking review of the order of eviction passed ex parte.
Courts Observation & Judgment
The court referred to Section 37 of the Act and also referred to Rule 23 of the Delhi Rent Control Rules, 1959, which provides that in deciding any question relating to the procedure not specifically provided by the Act and the said Rules, the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code.
The court discussed the issue as to whether an appeal was maintainable against an order of the learned Rent Controller refusing to order eviction in a petition under Section 14(1)(e) the same was highlighted by the Supreme Court in the case of Vinod Kumar Chowdhry v. Smt Narain Devi Taneja, the following observations were made, “In the way of the above interpretation of sub-section (8) of Section 25-B, the provisions of sub-section (10) thereof do not pose a hurdle. All that sub-section (10) states is that the procedure for the disposal of an application for eviction covered by sub-section (1) shall be the same as the procedure for disposal of other applications by Controllers, except as provided in Chapter III- A. Sub-section (8) as interpreted by us governs an application covered by sub-section (1) of Section 25-B and expressly takes away the right of appeal or second appeal while providing the remedy of revision instead. As we have held the provisions of sub-section (8) to be exhaustive of the remedies available to a person aggrieved by an order passed by the Controller in applications triable under Chapter III-A, such applications fall outside the category of those which can be disposed of like other applications under sub-section (10) read with the provisions contained in other chapters of the Act.”
The court also referred to the judgment passed by the Supreme Court in the case of Central Bank of India v. Shri Gokal Chand, and made the following observations, “..though the language of Section 38 of the Act may seem to suggest that an appeal lies against all or any order of the learned Rent Controller, however, no appeal would lie against any interlocutory order which are merely procedural and do not affect the rights and liabilities of the parties.”
The bench dismissing the petition noted, “In the present case, the eviction order itself is not appealable in terms of Sub-section (8) of Section 25B of the Act. Therefore, even if the application is treated to be the one under Order IX Rule 13 of the Code, an order dismissing the said application would not be appealable under Section 38 of the Act. To hold otherwise would be to defeat the object of introducing Chapter IIIA to the Act in much as an appeal, which even otherwise is not maintainable under the Code, would be considered as maintainable under Section 38 of the Act, which itself has been held to be restricted in application. [Refer: Central Bank of India (supra)]
The submission of the learned senior counsel for the petitioner that the order passed by the Controller would be appealable under Section 38 of the Act as “every order of the Controller” is appealable, cannot also be accepted. As noted hereinabove, the order passed by the Controller would be one referable to Sub-section (9) of Section 25B of the Act and in terms of Section 25A and Sub-section (8) of 25B, application of Section 38 of the Act would stand excluded.
The judgment in Miss Santosh Mehta (supra) and Madan Lal Bhatia (supra) would also not come to the aid of the petitioner hererin inasmuch as the orders therein were not passed under Section 25B of the Act but under Section 15 of the Act.
In view of the above, the question of law is answered by holding that in an Eviction Petition to which the procedure prescribed under Section 25B of the Act applies, an appeal under Section 38 of the Act is not maintainable against an order dismissing an application under Order IX Rule 13 of the Code/Section 25B(9) of the Act. The only remedy available to the aggrieved tenant is in form of a petition under Subsection (8) of Section 25B of the Act before the High Court.
I, therefore, find no infirmity in the Impugned Order. The petition is dismissed.”
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