AI Structured Summary
Not yet generated for this judgment
Judgment
Syed Qamar Hassan, J.—The petitioner, Khaja Ghulam Chouse Saqalain moved the High Court by way of Writ Petition calling in question the propriety of the order of the Collector of Medak, dated 10-2-1953, upholding on appeal the order of the Rent Controller, who had dismissed the application of the petitioner for eviction of Faqir Baig, the 3rd respondent herein.
After the advent of the Hyderabad House (Rent, Fviction and Lease) Control Act, 1954 (to be hereinafter referred to as the Act) the writ petition was converted into one of revision under S. 21 read with S. 31 or the Act. The petition in the first instance came on for hearing before our brother Manohar Pershad, on 11th October, 1957 and he referred it a Division Bench to consider the quest whether O. 9, R. 13, CPC (sic) applicable to proceeding before the Rent Controller.
The facts necessary for the appre(sic)tion of the question involved are that the petitioner''s application for eviction was allow ex parte on 15th November, 1952 giving days'' time for vacating the disputed house Siddipet.
After the expiry of 15 days the petitioner put in an execution petition in Munsifs Court. The Munsif refused to is execution on the ground that no final order had been passed by the Rent Controller a the expiry of the term fixed in the order. 13th December, 1952, the petitioner app(sic) to the Rent Controller setting out the obligation taken by the Munsif. The Rent Controller on the same date passed the following or(sic).
The period of a fortnight in my deci(sic) dated 15th November, 1952 has now expi(sic) the tenant be ordered to vacate the premi(sic) The respondent, however, filed an application for setting aside the ex parte order on December, 1952. The Rent Controller g(sic) ed the application and in the result of the quiry which he held, he dismissed the a cation for eviction.
The petitioner took the matter in peal to the Collector and contended b(sic) him that the only remedy open to the res(sic) dent was to have appealed against the (sic)tion order of 15th November, 1952. It not open to him to have recourse to the visions of O. 9, R. 13, C. P. C. In support that contention, reliance was placed on Ram Sitaram v. Sheo Shankar, AIR 1953 Nag (A) and Hansari Sabaiah v. Bhalchander AIR 1953 Hyd 243 (B). The Collector ruled the objection preferring to base his (sic)ment on Syed Mohiuddin Ali Khan v. A Talukdar Baghat, 39 Dec LR 440 (C), (sic) was cited by the respondent.
The respondent has preferred t(sic) main ex parte before us. The learned (sic)cate for the petitioner contended that in Rent Control Order, 1353F. under which proceedings were initiated there was no Vision making the provisions of O. 9, P C. P. C. applicable to proceedings before Rent Controller. The Act which super the Rent Control Order, 1353 F. also does provide that the remedy under O. 9, (sic) would be available to the party against an ex parte judgment has been passed.
To fortify his contention he referred the authorities cited before the Collector also to Neelaveni v. Narayana Reddy, 1920 Mad 640 (FB) (D) and N.K. Segu Abdul Khadir Hadjiar Vs. A.K. Murthy, further urged that the case of 39 Dec L (C), was distinguishable since in that case decision proceeded on the assumption the provisions of S. 127, Hyderabad Civil dure Code corresponding to O. 9, R. 13, CPC applied to the proceeding before the Rent Controller and the appellant authority.
After giving careful consideration to (sic) arguments advanced before us, we find (sic)ce in the above contention. As has been (sic)d by Seshagiri Aiyar, J., in the Full Bench (sic)e of AIR 1920 Mad 640 (D), a right to set (sic)e an ex parte decree belongs to the same (sic)gory as an appeal or review. They are matters to be inferred but must be given the statute.
In so far as statutes are concerned, there under the Rent Control Order, 1353F. no (sic)edy against an order of the Rent Controller (sic)pt by way of appeal to the Collector. Then (sic)e the Act. By S. 31 (2) (c) thereof it was (sic)ided that notwithstanding any decision or (sic)r of any Court to the contrary, any application made, appeal preferred or other providing instituted under the Hyderabad Rent control Order and pending at the commence (sic) of the Act shall be deemed to have been (sic), preferred or instituted under the corresponding provisions of the Act and shall be (sic)sed of as if the Act had been in force at time when such application, appeal or proceeding was made, preferred or instituted.
In the result of the deeming provision of above sub-section the law bearing on the (sic)ion involved will have to be found within (sic)our corners of the Act. Now S. 20 of Act provides for an appeal against the (sic) of the Controller with the change of (sic) and in Cl. (4) of the section, it is laid(sic):
Save as provided in S. 21, the decision (sic)e appellate authority and subject only to decision, an order of the Controller shall (sic)al and shall not be liable to be called in (sic)on in any Court of Law whether in a (sic)r other proceedings or by way of appeal." (sic)providing for costs and summoning of (sic)ses in Ss. 17 and 18 respectively, S. 19 (sic)n to say that for making enquiries under (sic)ct, the Controller shall follow as nearly possible, the procedure in the Code of Civil procedure, 1908, for the regular trial of suits. (sic)ld thus appear that so much of the pro(sic) relating to trial of suits as is prescribed CPC is made application to the enquiries under the Act. But it (sic) no reference to other remedies which (sic)en to a litigant under the Code except (sic)y of appeal as provided in S. 20 of the (sic).
It was on these grounds a Bench of Hyderabad High Court held in AIR 1953 243 (B), that the remedy by way view must be specifically provided (sic)d as there was no provision for in the Rent Control Order, no review (sic)inst the order passed by the Additional (sic)or in the exercise or his appellate Similarly it was held in AIR 1948 Mad (sic), that if the material provisions of the of Civil Procedure had been made ap�plicable to proceedings under the Control Act, or if there had been a rule corresponding to O. 9, R. 13, or O. 41, R. 21 contained in the Control Act Rules then the appellate authority would have had jurisdiction and authority to set aside his order. But in the absence of incorporation of the provisions of the CPC in the rules of procedure for the tribunals under the Control Act, there is no jurisdiction for the application of the principles of those provisions, as it would mean applying those provisions when they are not made applicable.
The ratio of this decision has been followed by a Bench of the Nagpur High Court in AIR 1953 Nag 191 (A), wherein it has been held that a Rent Controller has no inherent power to set aside an ex parte order, such power being excluded by reason of statutory finality attached to such orders. The case of 39 Dec LR 440 (C), is of no help in deciding the question canvassed before us, since, as stated by the learned advocate for the petitioner, it proceeds upon the assumption that the provisions analogous to O. 9, R. 13 applied to proceedings under the Rent Control Order, 1353F.
For these reasons, we allow the revision and set aside the orders of the Rent Controller and the Collector, in the result of which the orders of the Rent Controller dated 15th November, 1952 and 13th December, 1952 will stand restored. The petitioner will recover costs of this Court and that of the Courts below from the Respondent, Faqir Baig.