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1980 DIGILAW 311 (DEL)

MADANLAL BHATIA v. RATAN SEHGAL

1980-10-31

D.K.KAPUR, N.N.GOSWAMY

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N. N. Goswami ( 1 ) THIS petitio under Article 227 of the Constitution of India, is directed against the order dated 3. 3. 1980 passed by the 3rd Additional Rent Controller u/s 15 (2) of the Delhi Rent Control Act, 1958 ("the Act" ). ( 2 ) THE respondent- landlord filed an eviction petition u/s 14 (1) (e) read with Section 25 B of the Delhi Rent. Contral (Amendment) Act, 197o for the recovery of possession. The petitioner-tenant filed an application for leave to contest u/s 25b (5) raising various questions of law and fact. Tile leave to contest was granted by order dated 20. 2. 1978. During the pendency of the proceedings the landlord moved an application u/s 15 (2) of the Act on 81 1979. The said application was contested on various grounds and finally it was allowed by order dated. 1. 3. 1980 and the petitioner herein was directed to deposit the arrears of rent and future lent as indicated in the order. It is against this order ,hat the present petition has been filed. ( 3 ) THE only question involved in this case is whether an application u/s 15 (2) of the Act is maintainable during the pendency of the proceedings u/s 25b of the said Act before the Controller on an application being filed by the landlord for eviction of the tenant u/s 14 (l) (e) read with Section 25b of the Act. There are three decisions of this Court which we will refer to later to the effect that such an application is not maintainable. However, in view of the observations of their lordships, of the Supreme Court in Santosh Mehta v. Om Prakash, 1980 Raj. L R. 355, the learned Single Judge (Kirpal J.) was of the opinion that the law laid down by this Court in the three decisions no longer holds good and has REFERRED TO the case to a larger Bench. ( 4 ) T he learned Single Judge of this Court Avadh Behai J. had an occasion to deal with the scope of Section 25b of the Act in the case of RK Pareekh v. Smt. Uma Verma, A. l. R. 1979 Delhi 17. ( 4 ) T he learned Single Judge of this Court Avadh Behai J. had an occasion to deal with the scope of Section 25b of the Act in the case of RK Pareekh v. Smt. Uma Verma, A. l. R. 1979 Delhi 17. It was held in that case that the object of the legislature in incorporating the non-obstante clause both in Section 14 (1 ) (a) and 25a of the Act is to do away with the first and second appeal contained in Sec. . ion 38 und Section 39 of the Act because they are inconsistent ; and anything inconsistant to be found elsewhere in the Act must give away to the paramount provisions of Section 14; 1) and 25a of the Act. It was further held thai the policy and purpose of the Legistature in enacting Sections 25a, 25b and 25c is to introduce swift and expeditious procedure lor trial where the landlord s application for eviction is founded on the ground of bona fide requirement. In Ram Nath v. O. P. Khadria A. l. R. 980 Delhi 237, the same learned Single Judge held that once an application u/s 14 (i) (e) read with Section 25b of the Act has been filed, an application u/s 15 (2) cannot be made for the simple reason that an order u/s 15 (2) is made appealable by the Act u/s 38 to the Tribunal. The scheme of Section 25b clearly shows that the Tribunal completely goes out of the picture in ;he new procedure outlined in Chapter III-A of tile Act. The view of the learned Single Judge expressed in the case of RK Pareekh v. Smt. Uma Verma (supra) was approved by the Supreme Court in the case of Vinod KUmar Chawdhary v. Narain Devi, 1980 Raj. L. R. 159. It was held by their lordships of the Supreme Court that though the proviso to Section 25b (3) is not happily worded but the same excludes the right of appeal u/s 38 and 39 and makes it equally applicable to both parties i. e. , the landlord and the tenant. L. R. 159. It was held by their lordships of the Supreme Court that though the proviso to Section 25b (3) is not happily worded but the same excludes the right of appeal u/s 38 and 39 and makes it equally applicable to both parties i. e. , the landlord and the tenant. The observations in paragraph 6 of the said judgment are pertinent which arc, as under : "it is in the above background that the question as to whether an appeal to the Tribunal or a revision to the High Court was competent against the order passed in the instant case by the Controller has to be decided and that brings us directly to the meaning of Sub section (8) of Section 25-B. The proviso to that Sub-section gives power to the High Court to revise "an order made by the Controller under this Section" which expression is no doubt capable of being construed as any order of whatsoever nature passed by the Controller while acting in accordance with the procedure laid down in Section 25-B. The proviso, however; has to be read as a legislative measure carved out of the Sub-section to which it is appended and the order mentioned therein has to be regarded as an order of the type which the (Sub-section speaks of, i. e. , "an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section. Thus, the order covered by Sub-section (8) (and therefore by the proviso also) would be a final order disposing of an application on a conclusion of the proceedings under Sub-section (4) or Sub-section (7) of Section 25-B. This line of reasoning does not present any difficulty. " ( 5 ) AGAIN the Supreme Court had an occasion to deal with the scope of Section 25-B in relation to orders passed u/s 15 of the Act in the case of Miss Santosh Mehta v. Om Prakash, 1980 Rajdhani Law Reporter 355. In that case an order had been passed requiring the tenant to pay the rent. On the tenant s failing to pay the rent an order u/s 15 (7) striking out the defence of the tenant was passed. Against that order an appeal was filed. In that case an order had been passed requiring the tenant to pay the rent. On the tenant s failing to pay the rent an order u/s 15 (7) striking out the defence of the tenant was passed. Against that order an appeal was filed. The matter came to the High Court from the Tribunal and the High Court held that the appeal before the Tribunal was not maintainable in view of Section 25-B. The matter went upto the Supreme Court. After discussing the facts the Supreme Court held, as under : "an order striking out the defence is appealable under Section 38. So this order is appealable. This reliance on Section 25 (B) (8) to negative an appeal is inept because this is not an order under that special section but one u/s 15. Moreover Section 25-B (10) preserves the procedure except to the extent contra-indicated in Section 25b. Negation of a right of appeal follows from Section 25-B (8) only if the order for recovery is made in accordance with the procedure specified in this Section (i. e. , 25 B ). Here the disposession was not ordered under the special provision in Section 25b but u/s 15 (1 ). Nor can the theory of merger salvage the order because the legality of the eviction order depends on the legality of the order under Section 15 (7 ). Once that order is found illegal what follows upon that cannot be sustained. " ( 6 ) THE aforesaid decision of the Supreme Court was cited before Avadh Behari J. in Pran Nath v. Ram Shishak, 1980 Rajdhani Law Reporter 451. The learned Single Judge distinguished the decision on the ground that Santosh Mehta s case was an authority on Section 15 (7) of the Act and not an authority on the validity of an order made u/s 15 (2) in proceedings under Chapter III A. It was held thai the validity and propriety of an order u/s 15 (7) of the Act was a short point for decision and therefore the said case of the Supreme Court did not militate against the view taken in Vinod Kumar s case or in O. P. Khadria s case. ( 7 ) AFTER giving our careful consideration, we are of the opinion that in case the order u/s 15 (7) can be regarded as being appealable u/s 38 as held by the Supreme Court, there is no reason why an order u s 15 (2) cannot be held to be similarly appealable under Section 38. The order u s 15 (7) is only a consequential order and it can only be passed after an order u/s 15 (1) or 15 (2) has already been passed. The Supreme Court in the case of Vinod Kumar Chowdhry (supra) had observed that the proviso u/s 25b (8) has to be read as a legislative measure carved of the Sub-section to which it is appended and the order mentioned therein has to be regarded as an order of the type which the Sub section speaks of,; e. , "an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section. From these observations also it is clear that the right of revision is only limited to the cases where the proceedings have concluded under Sub-sections (4) and (7) of Section 25 B. ( 8 ) IT is no doubt true that Chapter III A was introduced in the Act by Amendment Act 18 of 1976 to provide for a summary trial of certain applications , but the said procedure is confined to the extent indicated in the Chapter itself. Once the leave to defend is granted, it does not mean that the landlord has no remedy against the defaulting tenant even though the proceedings may continue for a long period. The right of appeal is taken away only if the order for recovery is made or declined in accordance with the procedure specified in the said Chapter particularly Section 25-B. The same cannot possibly be extended to other provisions contained in the Act. ( 9 ) IN view of the clear pronouncements by their lordships of the Supreme Court in the two decisions REFERRED TO to above, we are of the openion that there is no bar to an order U/s15 (2) being passed by the Rent Controller in petitions U/s 25b of the Act and the view expressed by the learned Single Judge of this Court in the cases REFERRED TO to above, does not hold good to that extent. Consequently there is no merit in this petition which is dismissed. The learned counsel for the petitioner submitted that in view of the conflict of judicial opinion he may be allowed some further time to comply with the order of the Additional Rent Controller. Considering the circumstances, we allow time up to 30th November, 1980 for depositing the arrears of rent as directed and for payment of future rent in accordance with the order. There will be no order as to costs.