Dr. S.C. Jain vs Shrimati Sushila Devi

R.S. Pathak, C.J.—This is a tenant''s revision petition against an order of the Rent Controller, Simla rejecting his application for setting aside an ex-parte order of eviction.

The Respondent applied for eviction of the Petitioner from the premises occupied by him. The application was made u/s 13 of the East Punjab Urban Rent Restriction Act, 1949. It appears that substituted service was effected on the Petitioner and as he failed to appear the proceedings were taken ex-parte. On October 18, 1968 the Rent Controller made an ex-parte order directing the Petitioner''s eviction. Several months later, in April, 1969, the Petitioner applied for setting-aside the ex-parte order. The Rent Controller rejected the application holding that no sufficient cause has been made out by the Petitioner for setting aside the ex-parte order and there was no ground for condoning the delay.

In this revision petition it is contended on behalf of the Petitioner that the Rent Controller erred in believing that a period of limitation had been prescribed for an application for setting aside an ex-partc order of eviction made under the East Punjab Urban Rent Restriction Act and, it is said, the entire order is vitiated because of that erroneous assumption.

There can be no doubt, in my opinion, that the proceedings taken by the Rent Controller u/s 13 of the Act cannot be described as proceedings under the Code of Criminal Procedure. The Rent Controller is not a Court but a persona designata. The Code of Criminal Procedure as such has not been applied to proceedings taken by him, and there are several indications in the Act itself showing that to be so. Among them are sections 16 and 17 of the Act. They provide proof that where any power of the nature provided by the code was intended to be conferred on an authority constituted under the Act or an order made under the Act was to be executed as a decree of the civil court, express provision had to be made for that purpose. Order 9 Rule 13 of the Code has not been applied to an order of eviction made by the Rent Controller. Clearly, therefore, Article 123 of the Limitation Act, 1963, which is concerned with an application for setting aside an ex-parte decree, does not come into play. The order of eviction is definitely not a decree, although it may be executable as a decree by virtue of Section 17 of the Act.

It is urged for the Petitioner that Article 137 of the Limitation Act will apply, and the period of limitation for an application for setting aside an ex-part order of eviction is, therefore, three years. In my opinion, Article 137 also cannot be invoked. It seems to me that the Limitation Act cannot be applied to proceedings before the Rent Controller under the East Punjab Urban Rent Restriction Act. The Rent Controller is not a Court and, therefore, the Limitation Act cannot be applied to proceedings before him. The Limitation Act applies to proceedings taken in a Court. Charles E. Ring v. Collector of Bombay AIR 1948 Bom 387 ; Gita Mitra Vs. S.P. Ghose and Others, See also Alihusain Abbasbhai v. Collector AIR 1967 Guj. 118. The Rent Controller has erred in proceeding on the assumption that the Limitation Act comes into play.

The question then is whether in the absence of any period of limitation prescribed by statute an application for setting aside an ex-parte order of eviction can be rejected on the ground of delay. An application for setting aside an ex-parte order of eviction is not founded in any right conferred by the statute. The East Punjab Urban Rent Restriction Act is silent in that regard. If such an application can be entertained at all by the Rent Controller, it is because the interest of justice requires him to do so. It is a fundamental principle of natural justice that a party affected by an order should have notice and be heard in the matter before the order is passed. The Rent Controller, as an authority constituted by statute to make an order of eviction, has inherent power to determine whether the order passed by him was passed without notice to the tenant and whether there exists sufficient cause for the tenant not entering appearance in reply to the petition for eviction. In this connection, reference may be made to Manohar Lal v. Mohan Lal. 1957 P.L.R. 38 Now, while on the one hand the Rent Controller enjoys inherent power to set aside an ex-parte order of eviction in the interest of justice, equally is he bound by the interest of justice not to interfere if the application has been made with laches or unexplained delay.

The question whether the Petitioner was guilty of laches and not entitled to relief on the ground of delay has not been examined by the Rent Controller. He proceeded on the view that the application for setting aside the ex-parte order of eviction was barred by limitation. The bar of limitation and the bar of laches are two distinct and different concepts. See Shamsher Singh v. Union of India and Ors. C.W.P. No. 50 of 1972; decided by Hon''ble C.J., Hon''ble U.B. Lal and Hon''ble C.R. Thakur, JJ. on September 25, 1973, I have held that the Limitation Act does not apply and. that the question for consideration is whether the Petitioner was guilty of laches when he filed the application. This is a question which, it seems to me, can be appropriately considered and disposed of by the Rent Controller.

Accordingly the revision petition is allowed, the order of the Rent Controller, Simla is set aside and the ease is remanded to him for fresh decision in accordance with law in the light of the observations made above.

In the circumstances there is no order as to costs.