Shri Durga Swaroop vs Murari Lal

P.C. Pandit, J.—Murari Lal respondent, is the owner of the house in dispute. He had given it on rent to Durga Sarup Bhatnagar, petitioner on a monthly rent of Rs. 125/-. The respondent filed an application for ejectment against the petitioner u/s 14 of the Delhi Rent Contiol Act, 1958 (hereinafter referred to as the Act), on the ground that he bona fide required these premises for himself and the other dependent members of his family and that he had no other reasonably suitable residential accommodation with him.

This application was resisted by the petitioner, who admitted the tenancy, but controverted the grounds of ejectment. It was also pleaded that the rate of rent was Rs. 100/- per mensem and not: Rs. 125/-, as alleged by the respondent.

After hearing the counsel for the parties, on 29th December 1962 the Additional Controller passed an order u/s 15(2) of the Act, directing the tenant to deposit the rent at the rate of Rs. 110/- per mensem with effect from 15th June 1961 up-to-date, after deducting the amount already deposited by him, within one month and future rent at this very rate by the 15th of each following month. The petitioner did not comply with this order and, as a result, the respondent made an application on 25th February 1962.to strike out his defence. In reply, the petitioner submitted that his counsel did not inform him about the order dated 29th December 1962 and that is why the default had occurred. Under these circumstances, he made a prayer for the condonation of the delay. The Additional Controller, however, after hearing the parties, struck off the defence of the petitioner on 28th March 1963. The case was then adjourned to 29th March 1963, on which date after recording the evidence of the respondent, the order of eviction was passed.

The petitioner, being aggrieved by this order, filed an appeal before the Rent Control Tribunal, who came to the conclusion that since the tenant had not filed any appeal against the order dated 28th March 1963, striking out his defence, that order became final u/s 43 of the Act and could not be challenged in appeal against the final order of eviction. On the evidence produced by the landlord, the learned Rent Control Tribunal confirmed the finding of the Additional Controller to the effect that he bona fide required the house for occupation as a residence for himself and the other members of his family. It was also found that the landlord had no other reasonably suitable accommodation with him. As a result, the appeal was dismissed. Against this order, the present second-appeal has been filed by the tenant.

The sole contention raised by the learned counsel for the appellant is that the learned Rent Control Tribunal was wrong in holding that since the tenant did not challenge in appeal the order dated 28th March 1963 striking out his defence, the same had become final and could not be challenged in appeal against the order of eviction. He contended that under the provisions of section 105 of the CPC this order could be made a ground of attack in the appeal against the final order of eviction. In this connection, he relied on a Supreme Court decision in Satyadham Ghosal and others v. Smt. Deorajin Debi AIR 1980 S.C. 941. Learned counsel for the respondent, on the other hand, submitted that u/s 38 of the Act, an appeal lay against every order passed by the Controller and u/s 43 of the Act, every order made by the Controller or an order passed on appeal under the Act would be final and could not be called in question. Since no appeal against the order striking out the defence was filed by the tenant, the same became final u/s 43 of the Act.

Sections 38, 39 and 43 of the Act are in the following terms:-

S. 38. (1) An appeal shall lie from every order of the Controller made under this Act to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette.

(2) An appeal under sub-section (1) shall be preferred within thirty days from the date of the order made by the Controller :Provided that the Tribunal may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(3) The Tribunal shall have all the powers vested in a Court under the Code of Civil Procedure, 1908, when hearing an appeal.

(4) Without prejudice to the provisions of sub-section (3), the Tribunal may, on an application made to it or otherwise, by order transfer any proceeding pending before any Controller or Additional Controller to another Controller or Additional Controller and the Controller or Additional Controller to whom the proceeding is so transferred may, subject to any special directions in the order of transfer, dispose of the proceedings.

(5) A person shall not be qualified for appointment to the Tribunal, unless he is, or has been, a District Judge or has for at least ten years held a judicial office in India.

S. 39. (1) Subject to the provisions of sub-section (2), an appeal shall lie to the High Court from an order made by the Tribunal within sixty days from the date of such order:

Provided that the High Court may entertain the appeal after the. expiry of the said period of sixty days, if it is satisfied that the appellants was prevented by sufficient cause from filing the appeal in time.

(2) No appeal shall lie under sub-section (1), unless the appeal involves some substantial question of law.

S. 43. Save as otherwise expressly provided in this Act, every order made by the Controller or an order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceedings.

A plain reading of section 38 would show that an appeal lies from every order of the Controller made under this Act to the Rent Control Tribunal. According to section 39, a second appeal against the order of the Rent Control Tribunal lies to this Court only in those cases where some substantial question of law is involved. Except as otherwise expressly provided in the Act, section 43 gives finality to every order made by the Controller or an order passed on appeal against the same and it shall not be called in question in any original suit, application or execution proceeding. It is, therefore, clear that section 43 of the Act gives finality to all orders whether passed by the Controller or the Rent Control Tribunal or this Court,if no provision to the contrary is contained in the Act. In the present case, admittedly, there is no such provision. Moreover, Rule 23 of the Delhi Rent Control Rules 1959, lays down that in deciding any question relating to the procedure not specially provided by the Act and the Rules, the Controller and the Rent Control Tribunal, shall as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908. Since it is clearly provided under this Act that every order made by the Controller or an order passed on appeal under the Act shall be final, therefore, the provisions of section 105 of the Code of Civil Procedure, relied upon by the learned counsel for the appellant and which are in the following terms, cannot be attracted in the present case.

S. 105. (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness." Besides, the ''expression save as otherwise expressly provided'' occuring in section 105 of the CPC makes it clear that these provisions would not be applicable if a contrary provision has been made either under this Act or in any other Act. Since the provisions of the Rent Control Act, as mentioned in section 43, on this point are contrary to those contained in section 105 of the Code of Civil Procedure, therefore, the latter cannot be given effect to in the present case. The remedy of the appellant lay in filing an appeal against the order striking out his defence. Since he had failed to do so, therefore, in the present appeal, which is against the final order of eviction, that order, having become final u/s 43 of the Act, cannot be challenged. The decision of the learned Rent Control Tribunal on this point, therefore, was correct. As regards the Supreme Court decision in Satyadhyam Ghosal and others'' case, firstly, it is distinguishable on facts, and, secondly, it is of no help to the appellant because, as I have already held above, the provisions of section 105 of the CPC are not attracted in the present case.

There is, thus, no force in this appeal, which is hereby dismissed. In the circumstances of this case, however, I will make no order as to costs in this court.