Brij Kishore vs Dr. Amar Nath and others

Teja Singh, C.J.—This is a petition under Article 227 of the Constitution for setting aside the order of the Deputy Commissioner, Patiala dated 21-9-1951, in an appeal arising out of an ejectment case.

The petitioner''s allegations were that he let out a house belonging to him to Dr. Amar Nath (respondent No. 1) on 1-12-2002 on the monthly rent of Rs. 20/-. Some time later, Dr. Amar Nath went away to England and during his absence his father, who was a member of joint Hindu family with Dr. Amar Nath sub-let the house to Shri Nihal Singh (respondent No. 2) and, in course of time, Dr. Amar Nath and Shri Nihal Singh gave over the house to Shri Dhani Singh respondent No. 3. On 27-6-1950, the petitioner applied to the Rent Controller for ejectment of Dr. Amar Nath and Shri Nihal Singh on the grounds: 1. that the house was no longer in the occupation of Dr. Amar Nath: 2. that the house had been sub-let to Shri Nihal Singh without the written consent of the petitioner and against the provisions of law; and 3. that the rent of the house had not been paid to the petitioner for two months.

It was further alleged by the petitioner that he required the house for residence of his son-in-law and he was therefore, entitled to get it vacated by the said respondent. Only Dr. Amar Nath opposed the petition. Shri Nihal Singh did not appear and the proceedings against him were ''ex parte''. As regards the allegation that the house had been sub-let to Shri Nihal Singh the Assistant Commissioner held that though Shri Nihal Singh was virtually in occupation of the house it had not been established that he was a tenant under Dr. Amar Nath. The question relating to the non-payment of rent was not put in issue nor did the Assistant Commissioner definitely hold that the respondents had made a default in payment of rent for any month but he observed that the matter was not important, because respondent No. 1 had paid up the arrears of rent on the first date of hearing and consequently no action could be taken against him. In the result the petitioner''s application was dismissed. Against this order of the Rent Controller the petitioner filed an appeal before the Deputy Commissioner but failed even there.

The petitioner maintains that the order of the Deputy Commissioner was liable to be set aside under Article 227 for the following reasons: (1) that it was based on mere surmises and conjectures; (2) that he did not apply his judicial mind to the facts of the case and the evidence produced therein; (3) that the reasons given by him were not legally sufficient for dismissing the petitioner''s appeal; and (4) that the respondents had not paid any rent to him after Sawan 2008 and in order to harass him they had put Dhani Singh respondent No. 3 in possession of the house.

Respondent No. 1 alone has come forward to oppose the petition and he admits that the house is in his possession. The other respondents have not cared to contest the petition and the proceedings against them are ''ex- parte''.

First of all the petitioner''s counsel argued that the findings of the Rent Controller as well is the Deputy Commissioner that Shri Nihal Singh rakshak respondent No. 2 never became the subtenant of respondent No. 1, and that respondent So. 1 never sub-let the house to him, were erroneous. He particularly drew my attention to that part of the statement made by Shri Nihal Singh Takshak in which he admitted that his daughters and wife were living in the house and he also occasionally went and lived with them, and urged that this statement taken together with the statement made by respondent No. 1 affirmatively proved that the father of respondent No. 1 sub-let the house to Shri Nihal Singh Takshak.

I am not prepared to hold that these arguments are devoid of all force, and as I read the whole evidence together, the impression that I form is that when respondent No. 1 went to England his father did allow Shri Nihal Singh Takshak to live in the house. But, in view of the fact that it was within the jurisdiction of the Rent Controller and the Deputy Commissioner to decide this point as special tribunals constituted for the purpose of deciding cases arising between landlords and tenants, it is not open to me in exercise of the extraordinary jurisdiction given to the High Court by Article 237 of the Constitution of India to set aside their decision. In addition it may be mentioned that there was no evidence on the record to show that Shri Nihal Singh Takshak paid any rent to respondent No. 1 or his father for the use and occupation of the house. On the other hand, both Shri Takshak and respondent No. 1 stated that no rent was either charged or paid. In the circumstances, I am not clear whether respondent No. 1 or his father can be said to have ''sublet'' the house to Shri Nihal Singh Takshak.

The next point urged by the petitioner''s counsel was that on the showing of respondent No. 1 himself, he had not paid rent of the house to the petitioner for several months and since he did not pay or tender the arrears of rent on the first hearing of the application in the Court of the Rent Controller, the petitioner was entitled to get him ejected for this reason alone. The petitioner''s counsel further argued that his client took up this point before the Rent Controller as well as the Deputy Commissioner and whereas the former decided it against the petitioner on untenable grounds, the latter did not even so much as refer to it in his order. Counsel''s position is that the failure of the Deputy Commissioner to go into this matter amounts to failure to exercise jurisdiction and vitiates his order altogether.

That the question relating to non-payment of arrears of rent was raised by the petitioner before the Rent Controller cannot be denied. The finding of the Rent Controller was that since arrears were paid in Court by respondent No. 1 on 17-8-1950 the question had lost all importance. Evidently, he was thinking of proviso to section 13-but as I shall show hereafter this finding is erroneous. The petitioner agitated the question before the Deputy Commissioner also. See in this connection ground No. 4 of the petition of appeal but the Deputy Commissioner entirely ignored it. As regards the question of fact whether any arrears of rent were due from respondent No. 1 at the time the petitioner first moved the Rent Controller it was mentioned in paragraph 4 of the petition that the respondent had not paid two months'' rent. Taking into consideration the fact that the tenancy had commenced with effect from 1st Chet 2002 and, the petition to the Rent Controller was made on 27-6-1950 which corresponds to 14-3-2007, the allegation contained in the petition came to this that the rent for the months of Besakh and Jeth 2007 was in arrears.

In the written statement that respondent No. 1 put in he asserted that he had been paying rent regularly for the last five years but at the same time added that he had been insisting upon the petitioner to accept rent but he did not do so. This evidently means that he impliedly admitted that no payment had been made for the months of Besakh and Jeth. For reasons which are not clear from the record the Rent Controller did not frame any issue and, consequently, the parties did not produce any evidence. The respondent No. 1 deposited Rs. 80/- in Court on 17-8-1950 which, corresponds to 1-5-2007. It will be remembered that the monthly rent was Rs. 20/-, so the amount paid in court by the respondent No. 1 was for four months rent.

The question that we have now to determine is whether this payment saved the respondent from, the consequences of being in arrears. For this, we must turn to Sub-section (2) of Section 13 which lays down, ''inter alia,'' that if the Controller is satisfied that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following, that for which the rent is payable, he may make an order directing the tenant to put the landlord in possession: provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at 6 per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.

Now, in order, that the proviso should apply the following things are necessary:

(1) that the tenant should pay in court or tender the total amount of rent due from him together with interest thereon at six per cent per annum and the costs of application assessed by the Controller; &

(2) that such payment or tender should be made on the first hearing of the application after due service.

From what I have said above, it will be clear that by 17-8-1950, the day on which the respondent No. 1 paid Rs. 80/- in court rent for four months, namely Besakh, Jeth, Har and Sawan i.e., Rs. 80/- was due from him and he paid that amount but not a single pie on account of interest or costs. It may be urged that since no costs were assessed by the Controller nothing could be paid on that account but it has not been explained why no interest was paid. From this, it is clear that the payment made fell short of the amount required by the proviso.

Then the date on which the payment was made was not the first date of hearing of the application. Mr. Lachhman Das, counsel for the respondent, argued that the term first hearing meant the date on which issues were framed and since the issues in this case were framed on 17-8-1950 the payment was made at the proper time. Mr. Atma Ram, counsel for the petitioner, on the other hand argued that the term first hearing as used in the proviso means the date on which the petition came up before the Rent Controller after notices were issued to the respondent which was 18th July, 1950. Now the term ''hearing'' is not defined in the Ordinance. Mr. Lachhman Das, argued that it was used in the same sense in which it was used in the CPC and so far as the procedure is concerned, an application for ejectment made to the Rent Controller stands on the same footing as an ordinary suit.

In my opinion, this contention is not wholly correct because according to Section 17 of the Ordinance the only power given to the Controller and the appellate authority while hearing applications and appeals which is similar to the authority of the Civil Courts is the power of summoning and enforcing the attendance of parties and witnesses and taking evidence on oath and compel the production of documents. The Ordinance does not lay down that the procedure to be followed by a Rent Controller in other respects would be the same as that followed by a Civil Court for hearing suits etc. On the other hand, the opening words of sub-section (2) of Section 13 indicate that the procedure for hearing applications is somewhat of summary nature and the Controller is not bound either to call for a written statement or to frame issues. The words are:

A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied, etc...., he may make an order directing the tenant to put the landlord in possession.

Then even the CPC does not define the term ''hearing''.

The following are some of the provisions of the Code in which it is used: Order 8, Rule 1; Order 10, Rule 1; Order 13, Rule 1; Order 15, Rule 1, Order 17, Rule 1 and Order 35, Rule 4. Order 9, Rule 3 is to the effect that where neither party appears when the suit is called on for hearing the Court may make an order that the suit be dismissed. The words of order 9, Rule 8 are: where defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, etc. Order 10, Rule 1 says that at the first hearing of the suit, the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party....The Court shall record such admissions and denials.

It is laid down in Order 13, Rule 1 that the parties or their pleader shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, etc. Order 15, Rule 1 also mentions the first hearing of the suit. The words are: where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment. Order 17, Rule 1 enables the Court to adjourn hearing of the suit from time to time. Order 35, Rule 4, relates to the procedure to be followed at the first hearing of an interpleader suit.

Now a comparison of the language of the different rules would go to show that hearing does not mean the same thing everywhere. For example, the hearing contemplated by Order 10, Rule 1, means some date after the defendant had appeared and had put in written statement, or at least, he has had the opportunity of putting in a written statement. The same appears to be the case with Order 13. Rule 1. The hearing to which Order 17, Rule 1, refers would apply to every kind of hearing. It was held in Chidambaram Chettiar Vs. Parvathi Achi, which was a case under Order 13, Rule 1 that the hearing means the day on which the issues are framed. This case was followed in V. Swarnam Aiyar Vs. Veeragu Ammal, but the learned Judge made a distinction between an ordinary suit and a Small Cause suit and observed that though in the case of Ordinary suits first hearing is the hearing for the framing of the issues, in small Cause suits it is the date which the Court appoints for the trial to begin after the pleadings have been completed.

Now if we interpret the term ''hearing'' in the manner as it was done in the above mentioned cases, even as regards Rules 3 and 8 of Order 9, the effect would be that it would be impossible for any Court to dismiss a suit in default, even though the plaintiff does not appear when it is called. In some of the cases cited by the respondent''s counsel it has been held that in order that a date on which a suit comes up before a Court be regarded as a date of hearing it should satisfy two conditions (i) that it should have been fixed either for framing issues or for hearing evidence, etc; and (ii) that some proceedings should in effect be taken, i.e. either the parties'' statement be taken or the issues be framed, or the statements of witnesses should be recorded. In some cases, it has been held that the word" ''hearing'' means the taking of evidence or the hearing of arguments or the consideration of questions relating to the suit which would enable the Judge to finally come to an adjudication upon it and not the consideration of merely interlocutory matters.

If we apply these cases to the interpretation of the term ''hearing'' as used in Rules 3 and 8 of Order 9. it would be impossible for the Court to dismiss a case in default even if the date is fixed for the ''presence of the defendant and either he absents inspite of service or he appears but does not admit the plaintiff''s claim. All that is necessary to attract the application of Order 9, Rule 3 is that when the suit is called the plaintiff should be absent. Similarly, the case comes under Order 9, Rule 8 if when the suit is called the plaintiff is absent and the defendant appears but denies the plaintiff''s claim. It may here be pointed out that if neither party appears, the Court is not bound to dismiss the suit in default under Order 9, Rule 3 but if the defendant appears but the plaintiff does not appear and the defendant does not admit the plaintiff''s claim the Court has no option but to order that the suit be dismissed in default.

In neither case, it is necessary that either issues should be framed or the parties'' statement should be recorded or the witnesses should be examined or even the Court should consider questions relating to the suit which should enable it to finally come to an adjudication upon it. I do not wish to say anything about the cases referred to above, and if I may say so with respect they were correctly decided on their peculiar facts, but all that I wish to point out is that the date of hearing can also mean a date for which the defendant has been summoned but it is not necessary that he should be actually present or put in a written statement. This appears to me to be the sense in which the term is used in Rules 3 and 8 of Order 9.

I am supported in this view by the observations made by Jwala Prasad C.J. in Sheikh Abdul Rahman Vs. Shib Lal Sahu and Others, . This is what his Lordship said;

The word ''hearing'' has not been defined in the Code, but it is obvious that it is used in the different rules with a view to state the different purposes for which a date for hearing of the suit is fixed. Now, in Order 9, Rule 1, read with Rule 3, it would appear that alter the institution of the suit when the summons is issued upon the defendants calling upon them to appear upon a particular date, that date is the first hearing of the suit and if the parties fail to appear when the suit is called on for hearing on that date the plaintiff suit is dismissed for default.

In ''GHULAN HYDER KHAN v. TEKCHAND'', AIR 1919 Sind 89 several adjournments had been granted to the plaintiff to enable him to discover the whereabouts of one of the defendants who had not been served with notice. On the last date of hearing, neither the plaintiff nor his pleader appeared while the pleader for the defendants, except the one who had not been served, was present. The Court dismissed the suit for default and subsequently refused an application to set aside the dismissal. One of the objections raised before the High Court was that the date in question was not the date of hearing and consequently the suit could not be dismissed in default. The contention was rejected and it was held that the suit was rightly dismissed.

Let us now turn to the provisions of the Ordinance. As I have pointed out above, if the landlord is the petitioner before the Rent Controller and he proves that the tenant has made a default in payment of rent in the terms of Section 13, subsection (2) clause (i) he can demand, as a matter of right, that the tenant should be ejected. The proviso to the clause creates a sort of an exception to the general rule & lays down that if the tenant pays or tenders the arrears of rent together with interest or costs, he shall be deemed to have duly paid or tendered the rent within the proper time. The object appears to be that if the tenant not only admits the correctness of the landlord''s allegation that there was a default in payment of the rent but also pays or tenders the amount in Court together with costs, etc. at the earliest possible opportunity, he should. be shown a concession and no order for his ejectment should be made.

In the circumstances, I am inclined to think that the term ''first hearing'' is used, in the same sense in which it is used in Rules 3 and 8 of Order 9, C.P. Code, otherwise, the very object of the proviso would be defeated. That is to say, in order that the tenant be entitled to the benefit of the proviso he must pay or tender the rent on the very first day he appears in Court after notice of the petition had been served upon him. It is not denied that, this, the present respondent, did not do, because though he appeared in Court on 18-7-1950 he did not make the payment till 17-8-1950. It was argued that no payment could be made on the first day because the respondent had not been given any copy of the petition and he did not know what the allegations against him were. But the record shows that a copy of the petition was given to him in Court on 18-7-1950 and the case was adjourned to 8-8-1950 and there is no explanation why no payment was made on that day. It follows from all this, (i) That the respondent had made a default in payment of four month''s rent when the petitioner applied for his ejectment to the Rent Controller; (ii) That he paid the amount of rent in Court but he did not pay any interest as he was required to do under the proviso to clause (i) of Sub-section (2) of Section 13; (iii) that the payment was not made on the first hearing; (iv) That this being the case the Rent Controller as well as the Deputy Commissioner were bound to pass an order for his ejectment.

The next question is whether any relief can be granted to the petitioner by this Court and if so what should be the form of the relief. The position of the petitioner''s counsel is that since the Rent Controller and the Deputy Commissioner acting as appellate authority were both tribunals within the meaning of Article 227 of the Constitution and the Deputy Commissioner while rejecting the petitioner''s appeal did not even take into consideration the proviso to Section 13 (1) of the Ordinance, under the power of superintendence vested in this Court by Article 227, I cannot only quash the orders of the Rent Controller and the Deputy Commissioner but even order that the respondent be ejected from the house. The scope of the Article 227 was considered recently by a Bench of this Court of which I was a member in ''KARTAR SINGH v. CUSTODIAN MUSLIM EVACUEE PROPERTY'', 3 Pepsu L.R. 347. In my order, I also discussed what the term "tribunal" used in the Article means. In that case we were dealing with a Custodian of Muslim Evacuee Property and we held that in matters in which the Custodian performed functions other than administrative and executive, he was a tribunal and as such amenable to the jurisdiction of the High Court under the Article.

In my opinion, the same is the case with the Deputy Commissioner and when he hears appeals from the order of the Rent Controller under the Ordinance, he is without doubt a tribunal. So far as the Controller is concerned, his functions are entirely judicial. I may mention here in fairness to the respondent''s counsel that he did not join issues with the petitioner''s counsel that the Deputy Commissioner while acting as an appellate authority and the Rent Controller were tribunals and this Court had power of superintendence over them by virtue of Article 227 of the Constitution. All that he urged was that this was not a fit case in which the power could be exercised. This aspect of the case was also discussed by me in my order in Kartar Singh''s case. I agree that the power should be exercised in exceptional cases but I have no hesitation in coming to the conclusion that the present is a case of that kind. It will be clear from what I have said above that both the Controller and the Deputy Commissioner ignored the express provisions of Law, which means that they omitted or refused to exercise jurisdiction which the law gave them. In the circumstances, it is my duty to set aside their orders.

At the same time I am not clear whether it is within my power to make an order for the ejectment of the respondent. Had the Controller and the Deputy Commissioner been courts directly subordinate to the High Court and had the matter come up before me either in second appeal or on the revisional side, I would have been within my rights in passing any order which the trial Court could have passed but the matter having come up before me under Article 227 it is doubtful whether, I can do exactly what an appellate Court or a Court of revision can do. Accordingly, I allow the petition to the extent that I quash the Order of the Deputy Commissioner, send back the case to him with the direction that he should accept the petitioner''s appeal from the order of the Rent Controller and order the ejectment of the respondent from the house in question. Respondent No. 1 shall pay the petitioner''s costs. Counsel fee Rs. 100/-. Parties'' counsel have been directed to cause their respective clients to appear before the Deputy Commissioner, Patiala, on 19-5-1952.