Shanker Dass Naraindass vs Sita Ram Jawala Parshad

Chopra, J.—This is a petition under Article 227 of the Constitution for setting aside the order of District Judge, Patiala in an appeal arising out of an ejectment case under the Pepsu Urban Rent Restriction order nance (No. 8 of 2006).

Shanker Das Petitioner is a tenant of house No. 122, situate in Kasauli, belonging to Sita Ram Respondent. Sita Ram in his application to the Rent Controller alleged that he leased out the house to Shanker Das on 1-4-1952 for one year and that the rent of Rs. 100/- for the year was agreed to be paid on or before 31-7-1952. He prayed for eviction of Shanker Das from the premises because of default in payment of the stipulated rent.

Shanker Das opposed the application and asserted that he was in occupation of the house for several years as tenant on a rent of Rs. 77/- P.A., that for the current year he was - forced to execute a lease-deed on the enhanced rent of Rs. 100/- to which he agreed because he was unwell and no other accommodation was available, and that he was willing and ready to pay Rs. 77/- as rent for the year. The Rent Controller, vide his order dated 28-7-53-accepted the Petitioner''s contention and dismissed the application with the following observation:

I do not find any justification for ejecting the Respondent from the house as the Respondent has been living in this particular house for a number'' of years and the applicant'' wants to take advantage of the situation and collect more rent than it used to be.

The Petitioner was allowed one month''s time, from the date of the order, to pay Rs. 77/- by. way of rent. Sita Ram went in appeal to the District'' Judge against this order. The appeal was accepted and the Petitioner was directed- to vacate the premises within a period of two months.

The only point urged in this petition is that the order of the District Judge is liable to be quashed because the appeal before him was filed beyond the prescribed time of fifteen days. Section Kartar Singh, learned Counsel for the Petitioner,, contends that since the District Judge failed to'', take into consideration and thus to give effect to. the imperative provision of law regulating the period for filing appeals, the impugned order accepting the appeal was without jurisdiction and void."

The order of the Rent Controller is dated 28-7-1953. Shanker Das applied for a copy, of the order on 7-8-1953 & obtained it on 18-8-1953. The appeal was filed on 29-8-1953. Section 16 of the Rent Restric-tion Ordinance provides a period of fifteen days for filing an appeal against an order of the Rent Controller, Section 29, Indian Limitation Act makes the provisions of Section 3 of the Act applicable to these proceedings. .

Section 3, Limitation Act enjoins inter alia. that every appeal preferred after the period of limitation prescribed there for shall be dismissed although limitation has not been set up as a de fence. Counsel, therefore, contends that, not with-'' standing the fact that no objection on the point of; limitation was raised by the Respondent) to the appeal, it was the duty of the appellate Court itself to see that the appeal was presented within the prescribed time and to dismiss it if it was not so presented.

The Court thus ignored an express and mandatory provision of law and the mistake deserves to be corrected by this Court in exercise of the powers of superintendence conferred by Article 227 of the Con-. situation. It is further contended that the effectl of Section 3, Limitation Act is to deprive1 a Court of its jurisdiction to try a suit or other proceeding which has been instituted after the prescribed period of1 limitation, and therefore, the District Judge had assumed jurisdiction which was not vested in him by law the order of ejectment made by him is con and sequently void and liable to be set aside.

As regards the second contention, I am not prepared to accept it as a general proposition that failure to dismiss a proceeding, although time barred, always amounts to the exercise of a juris diction not vested in the Court by law. A court having initial jurisdiction to entertain a proceeding has jurisdiction to decide the question of limitation as well. The Court may decide it rightly or wrong ly; a wrong decision is not vitiated for want of jurisdiction.

In this case particularly, decision by the District Judge of the appeal instituted after the prescribed period of limitation cannot be regarded as void for want of jurisdiction. It is not disputed that an appeal against the order of the Controller lay to the District Judge and he was competent to entertain and hear the appeal. While Section 16(1) (a) of the Rent Restriction Ordinance prescribes a period of fifteen days for an appeal against an order, of the Controller, the same Sub-section authorise the appellate authority to extend the time "to such longer period as the appellate authority may allow for reasons to be recorded in writing".

The District Judge thus had the jurisdiction to entertain and hear the appeal, though it was presented beyond limitation; he was simply to make an order extending the limitation and giving his reasons there for. No such order was made and in fact the District Judge did not advert to the point of limitation at all. The fact that no objection on the ground of limitation was raised by the opposite party is not of much significance. It did not absolve the Court from its duty to dismiss the appeal or to extend the time for reasons to be recorded.

The Court is bound u/s 3, Limitation Act to dismiss a suit or other proceeding which has been instituted after the period of limitation, although limitation has not been set up as a defence. It is not competent to a party even to waive a plea of limitation so as to absolve the Court from this duty.

All the same, the inadvertence of the District Judge to the point of limitation or his failure to make an order extending limitation did not bust the jurisdiction that he initially had. It is, therefore, not a case of total want of jurisdiction, but one of irregular or illegal exercise of it. The decision is surely open to criticism that the District Judge failed to take notice of a clear and mandatory provision of the statute.

It has to be conceded that this Court has ample authority under Article 227 of the Constitution to interfere where the inferior Court or tribunal has passed an illegal order, ignored clear and mandatory provisions of a statute or acted in flagrant violation of law. But, wide as the powers are they are to be used sparingly and only in exceptional cases. The power of superintendence which the High Court has under the article does not devolve upon it the responsibility for correcting every error or illegality committed by an inferior Court or tribunal.

As observed by Das J. (as he then was) in Waryam Singh and Another Vs. Amarnath and Another, this power is to be exercised only in appropriate cases in order to keep the subordinate Courts within bounds of their authority and not for correcting mere; errors. The error may be one of fact or of law; for exercising the discretionary power of superintendence, which cannot be claimed as a matter of right, the error ought to be shown to have resulted in grave miscarriage of justice or flagrant abuse of authority vested in the Court or tribunal, This Court would ordinarily refuse to exercise that power where interference is not called for In the interest of justice. The present, in my opinion is a case of this type

As already observed, the only defence of the Petitioner to the application for ejectment was that the lease-deed enhancing rent from Rs. 77/-to Rs. 100/- P.A. was got executed through fraud and coercion. No evidence, except his own statement, was given in support of the allegation. What he himself stated was that he was not keeping good health for some time when he executed the lease-deed. The application was presented on 19-12-1952. It came up for ''first hearing on 15-1-1953, or at least on 9-3-1953, when the Petitioner submitted his written reply and Sita Ram was directed to lead evidence.

The rent for the year, whatever might: have been the rate, was admittedly in arrears since 31-7-1952. Section 13(2) of the Rent Restriction Ordinance 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 fifteen 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 the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land; 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 six 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.

Not a single pie was paid or tendered by the Petitioner on the first hearing of the application nor at any time later till the application was decided. The Controller gave one month''s time for payment of the rent in his final order dismissing the application. The least that can be said is that the order was arbitrary and in utter disregard of mandatory provisions of the Ordinance. .

Where the landlord proves that the tenant has made a default in payment of rent in the terms of Section 13 (2) (i) of the Ordinance he can demand, as a matter of right, that the tenant should be ejected. The proviso lays down the solitary exception; the landlord''s right can be defeated only if its provisions are strictly complied, with.

In Brijkishore v. Amarnath AIR 1952 Pepsu 174 (AIR v. 39) (B), landlord''s application for ejectment was dismissed by the Controller inter alia on the ground that the tenant had paid up the arrears of rent on the first date of hearing of the application. Landlord''s appeal against this order was also dismissed.

In a petition under Article 227 of the Constitution the orders of the Controller and that of Appel late Authority were quashed for the reason that, besides the rent, nothing on account of interest or costs was paid at the first hearing and the payment therefore fell short of the amount required by the proviso. In the concluding portion of his judgment Teja Singh C. J. observed:

''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." Waryam Singh and Another Vs. Amarnath and Another, is a case that arose out of proceedings instituted u/s 13 (2) (i) East Punjab Urban Rent Restriction Act, 1949, as . extended to Himachal Pradesh. Application ot landlord for eviction of his tenant on the ground pit non-payment of rent. was dismissed by the Rent Controller, in spite of the fact that the rent having been in arrears was admitted.

The reason given was that the tenant was justified to wait for the fixation of fair rent in his application to, the Rent Controller. Landlord''s appeal to the District Judge was also dismissed, but the orders were quashed by the Judicial Com missioner on a petition under Articles. 226 and 227 of the Constitution. The tenant''s appeal to the Supreme Court was dismissed with the following observation:

As rightly pointed out by the Judicial Commissioner in the case before us the lower Courts in refusing to make an order for ejectment acted arbitrarily. The lower Courts realised the legal position but in effct declined to do what was by S. 13 (2) (i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It was, therefore, a case which called for an. interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.

The order of the Controller was thus mani beastly wrong and contrary to the mandatory provisions of law. The wrong was remedied and the error corrected by the learned District Judge, but in doing so he himself committed an error and ignored another provision of the same statute. The power conferred by Article 227. being discretionary, I do not think the Court should interfere to set aside a defective order in order to restore an order which is evens-more defective.

A direction to the District Judge to readied the appeal after determining the question of limitation would result in further prolonging an unnecessary litigation which has already taken several, years. Eviction of the Petitioner was stayed by an interim order of this Court. The Petitioner has remained in possession of the premises for over two years even after the order of his ejectment. I would, therefore, confine myself to the observations that I have already made and need go no further.

The petition is consequently dismissed with costs. Counsel fee shall be Rs. 100/-.