Smt. Urmila Devi vs Davinder Singh

Rajesh Bindal, J.—The petitioner-landlord is in revision before this court against the findings recorded by the Appellate Authority, Yamuna

Nagar at Jagadhri, whereby the order of provisional assessment of rent dated 31.1.2012 as well as subsequent order of ejectment dated

15.2.2012 passed by the Rent Controller were set aside vide impugned order dated 19.5.2012 and the case was remanded back to the Rent

Controller. The petition u/s 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short, ''the Act'') had been filed by the landlord-

petitioner against the respondent for eviction claiming arrears of rent for the period from 1.4.2008 to 30.4.2011 as well as on the ground of

personal necessity of the premises in dispute. The Rent Controller had assessed provisional rent due against the respondent on 31.1.2012. On

account of non-payment of rent by the respondent within 15 days, as fixed by the Rent Controller, ejectment order was passed on 15.2.2012. The

tenant filed appeal against the orders dated 31.1.2012 and 15.2.2012 before the Appellate Authority, who set aside the aforesaid orders and the

case was remanded back to the Rent Controller with the direction to pass fresh order of provisional assessment of rent.

Learned counsel for the petitioner submitted that the Appellate Authority has acted illegally and with material irregularities in exercise of its

jurisdiction while not appreciating the law. It was submitted that a Division Bench of this court has held that it is bounden duty of the tenant to

deposit the provisional rent determined by the Rent Controller, otherwise it will entail ejectment of the tenant from the premises in dispute. Further,

it was argued that if a tenant is dissatisfied with the interim order passed by the Rent Controller, he has an opportunity to challenge the same before

the higher forum well within time.

Learned counsel for the petitioner, while placing reliance upon the judgments of this Court in Smt. Sewati Devi Vs. Tulsi Ram, ; Smt. Satya Wati

Jain Vs. Shiv Kant Ghai and others ; Hari Ram Vs. Firm Ram Parkash Shanti Lal and Others, and Banarsi Dass v. Smt. Jeeto, 1998 (1) RCR

(Rent) 288, submitted that the Appellate Authority has no power to remand the case for decision afresh. The Appellate Authority can only decide

the appeal after making such further enquiry as it thinks fit either personally or through the Rent Controller and appeal should have remained

pending before the Appellate Authority till such time the enquiry was concluded.

Learned counsel for the respondent has placed reliance on a judgment of Hon''ble the Supreme Court in Harjit Singh Uppal Vs. Anup Bansal, ,

wherein it was held that the Appellate Court has right to remand the case to the Rent Controller. Re-determination of rent, interest and cost by the

Rent Controller as directed by the Appellate Authority would sub-serve the ends of justice. Further, in Jegannathan Vs. Raju Sigamani and

Another, , Hon''ble the Supreme Court has made clear that the Appellate Authority by order can remand the case to the trial court even if such suit

has been disposed of on merits.

Heard learned counsel for the parties and perused the paper book.

The relevant provisions of Section 15 of the Act dealing with Appellate and Revisional Authority and the powers thereof are extracted below:

Appellate and revisional authorities: (1) The State Government may, by a general or special order, by notification, confer on such officers and

authorities as it may think fit, the powers of appellate authorities for the purposes of this Act, in such area or in such classes of cases as may be

specified in the order.

(2) Any person aggrieved by an order passed by the Controller may, within thirty days from the date of such order or such longer period as the

appellate authority may allow for reasons to be recorded in writing, prefer an appeal in writing to the appellate authority having jurisdiction. In

computing the period of thirty days the time taken to obtain a certified copy of the order appealed against shall be excluded.

(3) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal.

(4) The appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an

opportunity of being heard and, if necessary, after making such further enquiry as it thinks fit either personally or through the Controller.

(5) The decisions of the appellate authority and subject to such decision, the order of the Controller shall be final and shall not be liable to be called

in question in any court of law except as provided in sub-section (6) of this section.

(6) The High Court, as revisional authority, may, at any time, on its own motion or on the application of any aggrieved party, made within a period

of ninety days, call for and examine the record relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself

as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit. In computing the period

of ninety days the time taken to obtain a certified copy of the order shall be excluded.

The issue as to whether an Appellate Authority under the Act can remand the case back to the Rent Controller for decision afresh was

considered by this Court in Smt. Sewati Devi''s case (supra) and it was opined that Section 15(4) of the Act does not confer any right on the

Appellate Authority to remand the matter for fresh disposal. All what has been provided for is that the Appellate Authority has to decide the

appeal after making such further enquiry, as it thinks fit. It can either be personally or through the Rent Controller. The appeal has to be decided by

the Appellate Authority. In case an enquiry is directed through the Rent Controller, the appeal should remain pending with the Appellate Authority

till the receipt of report. The relevant paragraph thereof is extracted below:

3....... The Appellate Authority is in error in holding that it had power to set aside an order of Rent Controller and remand the case to him for

retrial and re-decision. Section 15 of the Act does not confer any right on the Appellate Authority to remand the matter for fresh disposal. Sub-

section (4) of Section 15 of the Act empowers the Appellate Authority to decide the appeal after making such further enquiry as it thinks fit either

personally or through the Rent Controller. It is specifically provided that the Appellate Authority shall decide the appeal. The only power that is left

with the Appellate Authority is that it may either make further enquiry personally or it may call upon the Rent Controller to make such further

enquiry but the decision can only be given by the Appellate Authority. This means that the appeal could remain pending with the Appellate

Authority till the enquiry is completed and the report is sent by the Rent Controller to the Appellate Authority. The order of remand directing

further enquiry and then decision by the Rent Controller on merits is not warranted by the statute....

The same view was expressed in Hari Ram''s case (supra). The relevant paragraph thereof is extracted below:

The order of remand directing the Rent Controller to decide the ejectment petition afresh on merits, is not permissible under sub-section (6) of

Section 15 of the East Punjab Urban Rent Restriction Act. The Section does not confer any right on the appellate Authority to remand the matter

for fresh disposal. All that the sub-section empowers the appellate Authority to do is to decide the appeal after making such further enquiry as it

thinks fit either personally or through the Rent Controller. It is specifically provided that the Appellate Authority shall decide the appeal. In case it

does not wish to make further enquiry itself, then it may call the Rent Controller for making such further enquiry. This means that the appeal should

remain pending before the appellate Authority till the enquiry is concluded by the Rent Controller and report sent back. For this I am supported by

Division Bench judgment of this Court in Krishan Lal Seth Vs. Pritam Kumari, , wherein in such circumstances, the order of appellate Authority

remanding the case to the Rent Controller for fresh decision was set aside.

To similar effect is the judgment of this Court in Banarsi Dass''s case (supra).

In the judgments cited by learned counsel for the respondent, specific issue under consideration was not whether matter can be remanded back

or not. Considering the aforesaid authoritative enunciation of law by this court, as referred to above, in my opinion, the order passed by the

Appellate Authority remanding the case back to the Rent Controller for decision afresh cannot be sustained and deserves to be set aside. Ordered

accordingly. The appeal filed before the Appellate Authority shall remain pending before it. The issues on which the matter was remanded back

shall be considered by the Rent Controller and a report thereof shall be sent to the Appellate Authority for consideration at the time of decision of

the appeal.

The petition stands disposed of accordingly.