Rajpal vs Suraj Narain

Harnam Singh, J.—This order disposes of Regular S.A. No. 736 of 1949 and Civil Revision No. 571 of 1949.

The facts, so far as material, are that on 29-11-1947, Shri Suraj Narain instituted the suit out of which these proceedings have arisen for the recovery of Rs. 500 on account of arrears of rent and for the ejectment of Shri Rajpal Defendant from house No. 355, situate in Galli Lodhan, Kucha Pati Ram, Delhi, alleging non-payment of rent and subletting a part of the premises by the Defendant without Plaintiffs consent. In the plaint Plaintiff claims rent for the first three months at the agreed rate of Rs. 26-9-0 per monsom while for the remaining eight months, during which period the Defendant remained in occupation of the premises after notice of ejectment, rent is claimed at Rs. 53-2-0 per mensem. Giving up a sum of Rs. 4-11-0 Plaintiff claims Rs. 500 as arrears of rent and compensation and asks for the ejectment of the Defendant from house No. 355.

Shri Rajpal Defendant resisted the suit pleading inter alia that the standard rent of house No. 355 was Rs. 20-9-0 per mensem and that the Plaintiff could not recover rout at Rs. 26-9-0 per mensem. The Defendant maintained that the sub-tenants had been in a part of house No. 355 for a number of years with the consent of the Plaintiff-landlord. Defendant then deposited in Court a sum of Rs. 405 on the first hearing of the suit on account of arrears of rent.

On the pleadings of the parties the trial Court fixed the following issues:

(1) Whether the grounds of ejectment pleaded by the Plaintiff exist and the Defendant is liable to be ejected?

(2) What is the amount due to the Plaintiffs by way of rent and damages?

(3) What is the standard rent of the property in suit?

(4) Whether a valid notice of ejectment was served on the Defendant, and if not what is the effect?

(5) Relief.

On the first issue the trial Court found that the Defendant having deposited in Court on the first hearing of the case the amount due as arrears of rent and costs of the suit the ground of non-payment of rent did not avail the Plaintiff. The trial Court then found that the Defendant was liable to ejectment on the ground that he had sublet a portion of house No. 355 without the consent of the Plaintiff-landlord. On issue 3 the trial Court found that the standard rent of house No. 355 was Rs. 20-14-0 per mensem and that being so, the Plaintiff landlord could recover rent only at the rate of Rs. 20-14-0 per mensem. In deciding issue 2 the trial Court held that under Punjab Act XIX [19] of 1947 it was not permissible to the Plaintiff landlord to charge in excess of the standard rent either by way of rent or compensation, and that being so, the trial Court found that the Plaintiff was entitled to Rs. 229-10-0 at the rate of Rs. 20-14-0 per mensem on account of rent for the eleven months in suit. On issue 4 he trial Court found that Ex.P. 1 was valid notice of ejectment. On the findings set out above the trial Court decreed Plaintiff''s claim for Rs. 229-10-0 on account of arrears of rent and for the eviction of the Defendant from house No. 355 with proportionate costs.

From the decree passed by the trial Court on 12-7-1948, Shri Rajpal Defendant appealed in the Court of the District Judge, Delhi. The learned District Judge, however, by his order dated 1-10-1948, returned the appeal for presentation in the Court of the Senior Subordinate Judge, Delhi, on the finding that the appeal lay in the Court of the Senior Subordinate Judge.

Now, the Senior Subordinate Judge observing that no application for extension of time u/s 5, Limitation Act, 1908, has been made by the Defendant-Appellant has dismissed the appeal as being time barred.

Defendant now applies to this Court for the revision of the order passed by the District Judge on 1-10-1948, and maintains that the learned District Judge acted illegally and with material irregularity in returning the memorandum of appeal for presentation to the Court of the Senior Subordinate Judge. Defendant has also come up in further appeal to this Court u/s 41, Punjab Courts Act, 1918, from the decree passed by the Senior Subordinate Judge, Delhi, on 19-7-1949. As the points arising in Regular S.A. No. 736 of 1949 and Civil Revision No. 571 of 1949 are intermixed with each other, I propose to dispose of the two cases by one judgment.

Mr. Bishan Narain urges that the second appeal is not competent and that the revision is barred by time.

Prior to the enactment of the Delhi and Ajmer Merwara Rent Control Act, 1947, hereinafter referred to as the Act, the Delhi Rent Control Ordinance, 1944, hereinafter referred to as the Ordinance, was in force in the province of Delhi. Section 11 of the Ordinance provided:

Power of High Court to make rules of Procedure: (1) With the concurrence of the Chief Commissioner of Delhi, the High Court may make rules to determine the classes of Courts which shall have power to hear and decide original cases, appeals and applications for revision and to deal with execution proceedings under the Ordinance and the procedure to be followed by them.

(2) The power conferred by Sub-section (1) shall include a power to determine in what circumstances the parties shall have a right to appeal or apply for review or revision in cases under the Ordinance, and further to determine how and by what authority it shall be decided whether any particular case shall be deemed to be a case under this Ordinance.

(3) All rules made under this section shall be published in the Official Gazette.

In exercise of the powers conferred by Section 11 of the Ordinance, the High Court of Judicature at Lahoro with the concurrence of the Chief Commissioner of Delhi made inter alia the following rules:

A party to an original case shall have a right of appeal as follows:

(i) to the Court of the Senior Subordinate Judge in cases in which the value does not exceed Rs. 2,000;

(ii) to the Court of the District Judge in cases in which the value exceeds Rs. 2000 but does not exceed Rs. 10,000;

(iii) to the High Court in cases in which the value exceeds Rs. 10,000.

There shall be no right of second appeal.

(i) The High Court, for the purposes of satisfying itself that a decision made in any case under the Ordinance was according to law, may call for the case and pass such orders with respect there to as it thinks fit.

(ii) A party shall have a right of review in accordance with the provisions of the Code of Civil Procedure, 1908.

A question whether a case is one under the Ordinance shall be determined by the Court of first instance subject to revision by a Court to which an appeal lies under these rules.

Subject to the provisions of Parts II and III, Limitation Act, 1908, the period of limitation for preferring an appeal or making an application for revision or review in Courts other than the High Court shall be 30 days from the date of the order. In the High Court such period shall be 60 days.

Now, the Act came into force in the Province of Delhi on 24-3-1947, and the suit out of which these proceedings have arisen was instituted in the trial Court on 20-11-1947. The rules u/s 14 of the Act were, however, published in the Gazette of India on 14-2-1948. Clearly, the rules made u/s 14 of the Act have no application to these proceedings.

But as stated above, the Ordinance was in force in the Province of Delhi prior to 24-3-1947. The Act was brought, into force in the Province of Delhi before the Ordinance had lapsed by efflux of time. Indeed, the Ordinance was expressly repealed by Section 15 of the Act. I may here mention that the Ordinance was Central Act within the meaning of Section 24, General Clauses Act, 1897.

Section 84, General Clauses Act, 1897, enacts that where any Central Act is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any rule issued under the repealed Act, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made under the provisions so re-enacted. Section 14 of the Act corresponds to Sections 10 and 11 of the Ordinance. Now, Rules 4, 5, 6, 7, 8 and 9 framed u/s 11 of the Ordinance were in existence at the time the Ordinance was repealed and replaced by the present Act. Clearly the present proceedings are governed by Rules 4, 5, 6, 7, 8 and 9 framed under the Ordinance, and that being so, thoro is no right of second appeal.

In Civil Revision No. 517 of 1949 Shri Rajpal Petitioner seeks revision of the order passed by the District Judge, Delhi, on 1-10-1948. The revision was preferred in this Court on 13-12-1944. An application for a copy of the order returning the appeal for presentation in the Court of the Senior Subordinate Judge, Delhi, was made on 1-10-1949, and the copy was completed for delivery to the applicant on 19-10-1949. As provided in Rule 9 of the rules framed under the Ordinance the period of limitation in such cases is 60 days. Shri Rajpal Defendant Petitioner had, therefore, seventy days to apply for revision in this Court. The revision petition, was actually filed on the 23rd day of the making of the order sought to be revised. Clearly, the petition for revision is barred by time.

Mr. Bhagwat Dayal, however, urges that in the circumstances of the case the appeal may be treated as a petition for revision. The course suggested is permissible in law but as would appear hereinafter the judgment of the Senior Subordinate Judge is not open to challenge in revisional proceedings in this Court. Now, the judgment in C.S. No. 548 of 1947 was given on 12-7-1948. An application for obtaining a copy of the judgment and decree each was made on 15-7-1948, and the copies were completed on 30-7-1948. Thus the last date for presenting the appeal in the Court of the Senior Subordinate Judge was 27-8-1949. In fact the appeal was presented in the Court of the Senior Subordinate Judge on 1-10-1948. The appeal was barred by time and as observed by the Senior Subordinate Judge no application u/s 5, Limitation Act, 1908, was made in that Court for the extension of time for the filing of the appeal. On these facts I find that the judgment of the appellate Court is not open to challenge in revisional proceedings in this Court.

Mr. Bhagwat Dayal then urges that Section 11 of the Ordinance is void, because it amounts to a delegation of legislative power to the High Court and the Chief Commissioner. I am not impressed with the argument raised for I think that the impugned section did not amount to delegation of legislative power but was mere conditional legislation. On this point reference may be made to Emperor v. Burrah 5 I.A. 178 : 4 Cal. 172 P.C. In that case Lord Selborne said:

Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom is places confidence is no uncommon thing; and in many circumstances it may be highly convenient. The British Statute Book abounds with examples of it and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislative contemplate this kind of conditional legislation as within the scope of the legislative powers which is from time to time conferred.

The question to be decided is whether Section 11 of the Ordinance can be regarded as a piece of conditional Legislation within the meaning of the rule laid down in Empress v. Burrah 5 I.A. 178 : 4 Cal. 172 P.C.

In AIR 1949 175 (Federal Court) Mukherjea J., said:

Now, it is one of the settled maxims of constitutional law that the power conferred on legislative authority to make laws cannot be delegated by it to any other body or department. The authority must remain where it is located and the power to which the prerogative has been entrusted cannot relieve itself from the responsibility by choosing other organs upon which it shall be devolved. (Vide Cooley''s Constitutional Limitations, 8th Edn. Vol. 1, p. 227). There are certain well recognised exceptions more apparent than real, which have been engrafted upon this maxim. Thus the legislation itself may be conditional and not absolute and its taking effect may be made to depend upon determination of facts and conditions by an outside authority. (Vide Cooley''s Constitutional Limitations, Vol. 1, p. 227). The Legislature, it is true, cannot delegate its power to make law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. (Vide Lockels Appeal 13 Am. Rep. 716). The inhibition against delegation does not also preclude the Legislature from delegating any power not legislative which it could itself rightfully exercise.

For reasons given in Empress v. Burrah 5 I.A. 178 : 4 Cal. 172 P.C. and Jatindra Nath v. Province of Bihar AIR 1949 P.C. 175 : 50 Cr.L.J. 897, I find that Section 11 of the Ordinance is intra vires of the Legislature and that the present case is governed by rules framed under the Ordinance.

Then, it is said that C.S. No. 510 of 1947 was not a suit within the Act. As provided in Rule 7 made u/s 11 of the Ordinance the question whether a suit is under the Act has to be determined by the Court of first instance subject to revision by a Court to which an appeal lies under the rules. A perusal of the pleadings and the issues fixed in C.S No. 548 of 1947 shows that C.S. No. 548 of 1917 was within the Act. In C.S. No. 548 of 1947 the Plaintiff''s claim for the ejectment of the Defendant proceeds upon Section 9(1)(a) and (b) of the Act and the Defendant claims relief u/s 7 and the proviso to Section 9(1)(a) of the Act. Issue No. 3 deals with the standard rent of property. I feel no doubt that the suit was within the Act.

No other point was raised in these proceedings.

In the result, Regular S.A. No. 736 of 949 and Civil Revision No. 571 of 1949 fail and are dismissed with costs.