Meher Singh vs Keshardeo Chamaria

P.N. Mookerjee, J.—This Rule arises out of a proceeding u/s 14(4) of the Rent Control Act of 1950. The ejectment suit was brought only on the ground of default. The suit was filed on July 7, 1953. It appears that on July 6, 1953, the rents of June, July and August, 1953, were deposited by the Defendant with the Rent Controller and there was actually no arrear, outstanding on the date of the suit although the Defendant had certainly committed certain technical defaults of two months'' rent by making the relative deposits of rent with the Rent Controller beyond the prescribed time. On the date, when the learned Munsif passed his final order u/s 14(4) it appeared that the tenant had no arrears outstanding and, accordingly, he directed the tenant to deposit only current rents month by month within the fifteenth of the next succeeding month as required by Section 14(4) with the usual rider that, in case of default, the defence against ejectment will be struck off. Subsequently, there was default in complying with the above order for deposit of current rents and, upon the Plaintiff''s prayer, the defence against ejectment was struck off. The tenant-Defendant then obtained the present Rule and his contentions are:

(1) that there being no arrears outstanding on the date of the Section 14(4), order, no order of deposit under that section merely for current rents only was permissible under the law, or, in other words, that, under that section, the order must be a composite order for arrears and current rents and, in the absence of arrears, the section would have no application, and (2) that in any event, there being no arrears of rent outstanding on the date of the suit, Section 14(1) or for the matter of that, Section 14 as a whole would have no application and, accordingly, no order could be passed in this case under Sub-section (4) of that section.

After giving the matter my best consideration I have been unable to accept any of the above contentions. As to the first it is enough to point out that Section 14(4) contains the significant phrase "if any" in relation to "the arrears of rent" thus contemplating cases where there may be no arrears outstanding. In such cases, the order u/s 14(4) must necessarily be for deposit of current rents only, month by month, within the fifteenth of the next succeeding month.

I, accordingly, reject the first submission of Mr. Biswas. As to the second also, it seems to me that the answer must be against the the tenant-Petitioner in view of the decision of this Court, in Dwarkin and Son, Ltd. v. Hari Singh (1954) 58 C.W.N. 1012 (vide T.S.R. Sarma Vs. Nagendra Bala Debi, ), where it was held that past technical defects would be sufficient for purposes of Section 12(1)(i) and thus for purpose of Section 14 also.

The present case would, therefore, clearly come u/s 14 and the order of the learned Munsif being otherwise right, the present Rule must fail.

Although the Rule is failing on the merits, I may here add a word on the recent decision of this Court, in Sunil Baran Roy Choudhury v. Puma Chandra Chandra C.L.J (1952) 316, which was cited as an authority to show that, as, in the present case, the defence against ejectment had been struck off prior to the issue of the Rule, the matter was one of appeal and the present Rule was incompetent. I do not think, however that, in the decision cited, their Lordships really meant to lay down such a proposition. There is no provisions under which an order striking out a defence against ejectment u/s 14(4) of the Rent Control Act of 1950, would be appealable. It is certainly not a decree. It cannot be so termed on any conceivable principle or process of reasoning. Adaikappa''s case (1947) L.R. 74 I.A. 264, would not have the remotest bearing on this particular question or any application to such an order. It is not an "open sesame" with which to unlock the closed door of the appellate tribunal in each and every case. The authority, however, high, cannot be substituted for statute which holds the key, and which indeed, is its sole repository,- to the appellate forum. It cannot also add to a statutory definition and without such addition it is impossible to regard the present impugned order as a "decree" under the Code of Civil Procedure. The Privy Council decision may be justified on reasons which I have tried to set out and explain in two decisions under the Rent Control Law but even those reasons would be unavailing and certainly insufficient in the present case.

The present order is also not appealable under Order XLIII, Rule 1 of the Code of Civil Procedure, which, no doubt, includes an order, striking out a defence, but only under Order XI, Rule 21 of the Code (vide Clause (f) of Order XLIII, Rule 1) which deals with non-compliance with orders of discovery, inspection and interrogatories. There is no other provision under which an appeal would lie from an order, striking out the defence against ejectment u/s 14(4) of the Rent Control Act of 1950, and, as appeal is indisputably a creature of statute, I must hold that the order in the present case was not appealable and the revision application would be quite competent. This is also clearly supported by the Bench Decision of this Court, reported in Maulvi Miah (Maulavi and Co.) Vs. Sashanko Mohan Guha, . I may add further that, even if the order was appealable, Article 227 of the Constitution would not necessarily have been excluded (vide in this connection 37 C.W.N. 201 at p. 208), though, undoubtedly, interference under that Article would be restricted to extreme cases.

In the present case, however, the Rule fails on the merits. Further discussion is, therefore, unnecessary.

The Rule is discharged, but there will be no order for costs.