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2001 DIGILAW 748 (PNJ)

Madan Lal v. Sumitra Devi

2001-07-24

R.L.ANAND

body2001
Judgment R.L.Anand, J. 1. Shri Madan Lal has filed the present revision and it has been directed against the judgment dated 3.10.1980 passed by the Court of learned Rent Controller, Bhiwani, who dismissed the application of the petitioner under Order 9, Rule 13, Civil Procedure Code by holding that the order of ejectment passed by the learned Rent Controller on 14th March, 1978 has merged with the order of appellate authority passed on 14th February, 1979. 2. Some facts can be noticed in the following manner : Smt. Sumitra Devi respondent filed an ejectment petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act) against Shri Madan Lal. The petitioner herein was proceeded ex parte and after recording the ex-parte proof, the learned Rent Controller vide order dated 14th March, 1978 passed the ejectment order directing the tenant to filed vacate the demised premises. Against this order, the tenant-petitioner filed at the first instance, an application under Order 9 Rule 13 C.P.C. before the Court of the Rent Controller. This application was filed by him on 15th June, 1978. He also filed a statutory appeal under Section 15 of the Act before the appellate authority on 22nd June, 1978. On 14th February, 1979 when the rent appeal came up for hearing before the appellate-authority, the petitioner made a statement to the following effect : "My application for setting aside ex parte proceedings is pending before the trial Court. I shall press that application there. I do not want to press this rent appeal which may be dismissed as withdrawn." 3. On this statement of the petitioner, the learned appellate Authority, Bhiwani, passed the following order on 14.2.1979 : "As per statement made today by the learned counsel for the appellant, this appeal is dismissed as withdrawn." 4. The proceedings before the Rent Controller in the application under Order 9 Rule 13 CPC proceeded and the Rent Controller framed the following issues for the disposal of the application under Order 9, Rule 13 CPC : 1. Whether there are sufficient and good grounds for setting aside the ex parte ejectment order dated 14.3.1978 ? OPA 2. Whether the application is within time ? OPA 3. Whether the application is not tenable and has already become infructuous as alleged in the reply ? OPR. 4. Relief. 5. Whether there are sufficient and good grounds for setting aside the ex parte ejectment order dated 14.3.1978 ? OPA 2. Whether the application is within time ? OPA 3. Whether the application is not tenable and has already become infructuous as alleged in the reply ? OPR. 4. Relief. 5. The learned Rent Controller vide impugned order dated 3.10.1980 dismissed the application under Order 9, Rule 13 C.P.C. for the reasons given in paragraphs 5 to 7 of the impugned order which are reproduced below : "5- No question of fact is to be adjudicated upon for the decision of this application as the parties are agreed in their pleadings that an appeal was preferred by the applicant Madan Lal against the ex parte order for ejectment dated 14.3.1978 before the learned appellate Authority, Bhiwani and that the said appeal was withdrawn by the applicant Madan Lal and was dismissed as such by the learned appellate Authority vide his order dated 14.2.1979 copy of which is available on the record. The respondent Sumitra Devi also filed a certified copy of the grounds of appeal dated 22.6.1979 preferred by Madan Lal before the learned appellate Court authority. Sh. P.C. Sharma arguing for the applicant Madan Lal submitted that unless the respondent amends her reply she cannot be allowed to file this application and seek adjudication thereon before the evidence on the merits of the case is concluded. He also submitted that because of the weakness of the case, this application has been moved by her with a view to defeat the ends of justice. On behalf of Sumitra Devi Shri O.P. Luhariwala submitted that there is no bar in her filing such at application during the pendency of the main petition and seeking its adjudication earlier. After going through the respective submissions from both the sides, I am of the opinion, that this petition dated 18.5.1979 moved by Sumitra Devi can be heard without requiring her to amend her reply firstly because only a legal point is involved for decision and secondly because the appeal was dismissed as withdrawn by the learned appellate Authority on 14.2.1979, much after the petitioner Madan Lal filed the petition on 15.6.1978 for setting aside the ex parte ejectment order and also much after 25.7.1978 when Sumitra Devi filed her reply through her attorney Ashok Kumar Joshi. 6- Shri O.P. Luhariwala submitted that the applicant Madan Lal had initiated these proceedings presumably under Order 8 Rule 13 C.P.C. for getting the ex parte ejectment order dated 14.3.1978 set aside on 15.6.1978. These proceedings were, therefore, pending in the Court when he filed the appeal before the learned appellate Authority on 22.6.1978 whereunder the impugned order dated 14.3.1978 passed by the Rent Controller, Charkhi Dadri was sought to be set aside. He argued that the appeal having been filed subsequent to the initiation of these proceedings and having dismissed the present application, is not maintainable and should be dismissed as such. He submitted that it is immaterial whether the appeal was decided by the learned appellate authority on its own merits or that it was dismissed as withdrawn. In any case the effect was dismissal of the application. Continuing his arguments, he asserted that the ex parte order dated 14.3.1978; passed by the Rent Controller, Charkhi Dadri stood merged with the order dated 14.2.1979 passed by the learned appellate Authority, Bhiwani and therefore, the Court of Rent Controller had no jurisdiction to continue with the application moved by the Madan Lal for setting aside the ex parte impugned order dated 14.3.1978. In support of his argument, he referred to 1971 PLJ 348, Kartar Singh v. Jagat Singh, whereunder a Full Bench of our own High Court held : "As soon as the ex parte decree merged in the decree of the appellate Court, the trial court had no jurisdiction to entertain the application under Order 9, Rule 13 CPC. It would not matter whether the appellate Court has or has not adjudicated on the rights and liabilities of the person who moves for setting aside the ex parte decree against him provided that the person has been served in the appellate Court and had the opportunity to agitate his right in appellate Court." 7. In the present case, Madan Lal was the sole appellant before the learned appellate authority and similarly Sumitra Devi was the sole respondent in the appeal preferred by Madan Lal. He also referred to 1977 RCJ 108, Majja Chaudhary and others v. Sohan Lal and others. In that case, a suit for ejectment had been filed against five defendants. One of them was the chief tenant and the others were sub-tenants. He also referred to 1977 RCJ 108, Majja Chaudhary and others v. Sohan Lal and others. In that case, a suit for ejectment had been filed against five defendants. One of them was the chief tenant and the others were sub-tenants. An ex parte decree for ejectment was passed in the suit against the four sub-tenants. An appeal was filed against the judgment of the lower Court and an application was also filed for setting aside the ex parte decree. No steps were taken to have the proceedings of the appeal stayed till the disposal of the application and as a result thereof, the appeal was dismissed. Thereafter the application for setting aside the ex parte decree came up for hearing and in these circumstances, it was held that the decree of the trial Court merged in the decree of the appellate Court and the trial Court had no jurisdiction to restore. He also cited AIR 1954 M.B. 4, B.R. Bala Saheb v. Alakh Murari Lal the facts of which are almost on all fours with the case present in hand. In that case an application for setting aside the ex parte decree was filed and thereafter appeal against the ex parte decree was also filed. The appeal was dismissed. It was held that the trial Court had no jurisdiction to set aside the ex parte decree. AIR 1970 S.C. 1 (S.R. Abhyanker v. K.D. Bapat) was also relied by the learned counsel for Sumitra Devi in support of her contention. On behalf of Madan Lal Sh. P.C. Sharma argued vehemently that the ejectment order was passed by the Rent Controller, Charkhi Dadri which was a tribunal specially empowered under the Haryana Urban (Control of Rent and Eviction) Act, 1973 and before such a tribunal, the technical provisions of CPC do not apply and such an authority is well within its rights to prescribe its own procedure. In support of his argument he referred to 1970 R.C.R. 895, Buta Singh and others v. Roshan Lal and others wherein Honble Mr. Justice Narula held that certain specific provisions of CPC having been made applicable to the proceedings under the Rent Act, in all other matters, the procedure to be followed is left to the authority concerned. He also referred to 1957 PLR 55, Mathra Dass v. Om Parkash and others. Justice Narula held that certain specific provisions of CPC having been made applicable to the proceedings under the Rent Act, in all other matters, the procedure to be followed is left to the authority concerned. He also referred to 1957 PLR 55, Mathra Dass v. Om Parkash and others. He submitted that since the appeal preferred by Madan Lal has not been decided by the learned appellate Authority, it would not act as a bar in his maintaining the present application for getting ex parte ejectment order dated 14.3.1978 set aside. He submitted that principle of merger is not applicable in the case and in this connection he referred to AIR 1930 Lahore 599, Mangi Lal and others v. Radha Mohan and another. The argument of the learned counsel for Madan Lal is without substance. As already indicated above, it is immaterial whether the appeal is decided on merits or is dismissed otherwise. The effect is of the dismissal of the appeal and in such a situation the decree passed by the lower Court stands merged with the decree/order passed by the appellate Court and in such a situation, the trial Court cannot have jurisdiction to set aside the ex-parte ejectment order. Sh. P.C. Sharma also referred to AIR 1977 Calcutta 372, M.R. Dey v. Namita Goswami and others. This authority is not applicable to the facts of the present case. That was a case where the decree was ex parte against one defendant but not against another who was present. Appeal preferred was dismissed for non- prosecution and therefore, the person against when the decree was ex parte was not barred from proceeding with the application under Order 9 Rule 13 CPC. In the present case there is only one applicant who was the applicant before the learned appellate authority and there is only one respondent who was so arrayed before the learned appellate Authority also. The learned counsel for Madan Lal also referred to AIR 1974 SC 1380, Messrs Gojer and Brothers Private Limited v. Shri Rattan Lal to explain the principle of merger. Para No. 12 on which much reliance was placed by the learned counsel, and is reproduced below also does not come to his help :- It is only proper that we keep ourselves within the bounds of the issue arising in the case. Para No. 12 on which much reliance was placed by the learned counsel, and is reproduced below also does not come to his help :- It is only proper that we keep ourselves within the bounds of the issue arising in the case. We are not concerned to determine whether a decree passed in a suit can merge with an order passed in the exercise of revisional jurisdiction because the decree of the trial Court in the instant case was challenged first by an appeal filed in the District Court and then in a second appeal filed in the High Court. We are also not concerned to determine whether the decree passed by a trial Court can merge in an unspeaking order passed by the higher Court while summarily dismissing the proceedings because the High Court has given a considered judgment after a contested hearing. The principle, therefore, that there is no decree as such of the appellate Court if it dismisses the appeal for fault of appearance or for want of prosecution on the ground that the appeal has abated or is withdrawn or that the appellant has failed to furnish security for costs as provided in Order 41, Rule 10 C.P.C. can have no application to the instant case. Nor indeed are we concerned with the class of cases in which the suit covers a horizon wider than the appeal, which happens when only a part of the decree passed in the suit is carried in appeal to the higher Court. Here, the decree in its entirety was challenged before the appellate Court." 6 Regarding 1971 PLJ 348 (supra) the learned counsel for the Madan Lal tried to draw a distinction. He submitted that the following two questions of law were formulated :- "(1) Whether the trial court has jurisdiction to entertain and allow an application under Order 9, Rule 13 CPC for setting aside an ex parte decree subsequent to the decision of an appeal preferred against in such a decree after due service of the parties to the appeal ? (2) Whether the answer to question No. (1) would be affected by the fact that the appellate Court has or has not adjudicated on the rights and liabilities of the person who moves for the setting aside of the ex parte decree against him ?" And their Lordships of the Full Bench answered them as under : "1. So far as the first question is concerned, the answer is that as soon as the ex parte decree merged in the decree of the appellate Court, the trial Court had no jurisdiction to entertain the application under Order 9, Rule 13 Code of Civil Procedure. 2. The answer to the second question would be that it would not matter whether the appellate Court has or has not adjudicated on the rights and liabilities of the person who moves for the setting aside of the ex parte decree against him provided that the person has been served in the appellate Court and has the opportunity to agitate his rights in the appellate Court." He submitted that as per the Full Bench, the trial Court has no jurisdiction to entertain the application under Order 9 Rule 13 C.P.C. but there is nothing in this judgment to allow such an application if one has already been filed. He submitted that in the present case, the application for setting aside the ex parte decree dated 14.3.1978 had already been filed on 15.6.1978 and that appeal was preferred by Madan Lal on 22.6.1978 and therefore, once this petition had been entertained, it has to be decided on its own merits. The argument is devoid of any merit. When the Court cannot entertain an application under Order 9 Rule 13 CPC after the decision of the appeal preferred against the ex parte order, there is no question of allowing such an application if one has already been filed. The principle of merger aptly applies in this case because once the matter has been decided by the appellate Court the trial Court ceases to have jurisdiction. 7. The principle of merger aptly applies in this case because once the matter has been decided by the appellate Court the trial Court ceases to have jurisdiction. 7. In the face of the above, the petition dated 18.5.1979 moved by Sumitra Devi through her attorney Ashok Kumar Joshi is accepted and as a result of the acceptance of this petition, the petition dated 15.6.1978 moved by the Madan Lal seeking setting aside the ex parte order dated 14.3.1978 passed by the Rent Controller, Charkhi Dadri becomes infructuous and is dismissed as such. I shall, in the circumstances of this case, leave the parties to bear their own costs." 8. Not satisfied with the order dated 3.10.1980 the present revision has been filed by Shri Madan Lal. 9. It may be mentioned here before I deal with the submissions of the learned counsel for the parties, that in pursuance of the ejectment order dated 14th March, 1978 the landlord had already taken possession of the demised premises. 10. I have heard Miss Harsh Rekha on behalf of the petitioner and Shri Aakash Jain on behalf of the respondent and with their assistance, have gone through the record of the case. 11. Learned counsel appearing on behalf of the petitioner while relying upon the 2nd Explanation attached to Order 9, Rule 13 CPC, submits that the dismissal of the rent appeal by the appellate authority as withdrawn on 14th February, 1979 does not effect the rights of the petitioner for adjudication in the application under Order 9, Rule 13 CPC. She says that since the appeal of the petitioner under Section 15 of the Act was dismissed as withdrawn, it was not dismissed on merits, rather it was dismissed in the light of the statement made by the counsel for the petitioner. In these circumstances, it is always open to the petitioner to get adjudication on merits whether he was duly served in the main petition under Section 13 of the Act. On the contrary, the learned counsel appearing on behalf of the respondent submits that with the passing of the order dated 14th February, 1979, the order dated 14th March, 1978 does not survive as it had merged with the order of the appellate authority and there is no application under Order 9, Rule 13 CPC for setting aside the order dated 14th February, 1979 nor possibly there could be. Moreover, the order dated 14th February, 1979 has never been challenged by the petitioner before the High Court by way of revision. Therefore, the application under Order 9, Rule 13 CPC could not survive before the Rent Controller and it has been rightly dismissed by the Rent Controller. 12. I have considered the rival contentions of the learned counsel for the parties and I must say that the submissions raised by the learned counsel for the petitioner though look alluring, but on my deeper scrutiny it has no merit. It is the conceded case of both the parties that against the order dated 14th March, 1978, two remedies were available to the tenant - either he could file an appeal under Section 15 of the Act or he could go under Order 9, Rule 18 CPC for challenging the ex parte order. The petitioner adopted the second remedy at the first instance when he filed the application under Order 9 Rule 13 C.P.C. for the reasons best known to the petitioner. He also adopted the legal remedy under Section 15 of the Act. The moment the appeal has been dismissed as withdrawn, the order dated 14th March, 1978 attains the finality and it merges with the order dated 14th February, 1979 and in these circumstances, the order dated 14th March, 1978 does not exist or survive in the eyes of law. 13. Now to reject the arguments of the learned counsel for the petitioner let us examine this case from a converse angle. As I stated above, the application under Order 9, Rule 13 CPC was filed by the petitioner at the first instance and the order of the appellate authority was passed on 14th February, 1979. If that application was allowed prior to the passing of the order dated 14th February, 1979, can it can be said by any stretch of imagination, that the appeal of the appellant would have survived. The answer is in the negative because with the allowing of the application under Order 9, Rule 13, the order dated 14th March, 1978 goes into the wind and since there was no order of ejectment, the rent appeal of the petitioner also met the same fate. The answer is in the negative because with the allowing of the application under Order 9, Rule 13, the order dated 14th March, 1978 goes into the wind and since there was no order of ejectment, the rent appeal of the petitioner also met the same fate. The 2nd Explanation of Order 9, rule 13 C.P.C. lays down as follows : "Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree." 14. We all know that the ejectment order passed by the Rent Controller has the force of decree. The grounds of appeal filed under Section 15 of the Act are not with us so as to adjudicate what were the grounds taken up by the petitioner while filing the appeal and what were the grounds taken by him while filing the application under Order 9 Rule 13 CPC. If the grounds in both the appeal as well as the application are common, it is not open to the petitioner to say that he has not been duly served in the main rent petition. In Kartar Singh v. Jagat Singh and others, 1971 P.L.J. 348, the Full Bench of this High Court has observed that when ex parte decree has been passed by a trial Court and appeal has been filed against that decree, with the dismissal of the appeal the ex parte decree merges with the appellate Court irrespective of the fact whether the appellate Court has or has not adjudicated upon the rights and liability of the parties on merits who makes an application under Order 9, Rule 13 C.P.C. for setting aside ex parte decree. The ratio of the Full Bench is fully applicable to the facts in hand that, the dismissal of the appeal, even dismissed as withdrawn on 14th February, 1979, the order dated 14th March, 1978 does not survive and in these circumstances, the application under Order 9, Rule 13 CPC also did not survive. The order dated 14th February, 1979 till today has not been challenged in any court of competent jurisdiction. Therefore, the defendants revision is hereby dismissed with no order as to costs.