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PETITIONER: BANT SINGH GILL

       Vs.

RESPONDENT: SHANTI DEVI & ORS.

DATE OF JUDGMENT: 01/03/1967

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. BHARGAVA, VISHISHTHA

CITATION:  1967 AIR 1360            1967 SCR  (3)  59

ACT: Delhi & Ajmer Rent Control Act, 1952 (38 of 1952) and  Delhi Rent Control Act (59 of 1958)-Suit for ejectment filed under 1952  Act--Tenant’s application under s. 50(2) of  the  1958 Act  claiming that suit had abated-Application dismissed  by trial  court-Appeal filed under s. 34 of 1952  Act-Right  of appeal whether governed by 1952 Act or 1958 Act-Effect of s. 57 of 1958 Act.

HEADNOTE: A suit for ejectment on the ground of failing to pay arrears of  rent  was  instituted  against  the  appellant  by   the respondents  under the provisions of the Delhi & Ajmer  Rent Control Act, 1952 on February 27, 1958.  On February 9, 1959 the Delhi Rent Control Act, 1958 came into force and  became applicable  to the premises in question.  On March 13,  1961 the appellant, relying on the provisions of s. 50(2) of  the Act  of  1958, filed an application before the  trial  court requesting it to hold that the suit had abated on the ground that the suit -related to premises the construction of which had been completed after the 1st day of June 1951 but before the  9th day of June 1955.  The trial court,  not  satisfied that  the premises was constructed during the said  period., rejected the application.  An appeal purporting to be  under s.  34 of the 1952 Act was filed before the  District  Judge who held that the order of the trial court was under the Act of 1958 so that no appeal lay.  The High Court dismissed the appellant’s revision application.  Appeal to this Court  was filed under Art. 136 of the Constitution. HELD : (i) The saving clause of sub-s. (2) of s. 57 makes it clear that the present suit which was pending under the  Act of  1952 was to be continued and disposed of  in  accordance with  the  provisions of that Act though  tinder  the  first proviso  the  court deciding the suit was required  to  have regard to the provisions of the Act of 1958. [62 E] Further  the second proviso to s. 57(2) of the Act  of  1952 laid  down that the provisions for appeal under the  Act  of 1952  were  to  continue in force in respect  of  suits  and proceedings disposed of thereunder.  Consequently the  right of  appeal against the order continued to be governed by  s. 34 of the Act of 1952. [62 G-H]

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However  the  trial Judge had only  decided  a  preliminary issue  and  the  order  not being  a  final  order  was  not appealable under s. 34 of the Act of 1952. [63 H] Central  Bank of India v. Gokal Chand, [1967] 1 S.C.R.  310, relied on Ram Charan Das v. Hira Nand, A.I.R. 1945 Lah. 298,  referred to. (ii) The appellant’s application was not one under s. 33  of the  Act  of 1952 and the order disposing it of  was  not  a final order on that ground either. [64 C-D] It was open to the appellant to challenge the correctness of the  decision of the trial -court in the appeal against  the decree if passed against him. [64 E-F] 60

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2207  of 1966. Appeal  by special leave from the judgment and  order  dated July  21,  1966 of the Punjab High Court  Circuit  Bench  at Delhi in Civil, Revision No. 319-D of 1965. Pritam Singh Safeer, for the appellant. S. P. Mahajan and Lily Thomas, for the respondents. The Judgment of the Court was delivered by Bhargava,  J. A suit for ejectment on the ground of  failing to pay arrears of rent was instituted against the appellant, Bant Singh Gill, by the respondents under the provisions  of the  Delhi  and  Ajmer Rent Control Act,  1952  (No.  38  of 1952)--hereinafter referred to as "the Act of 1952", on  the 27th February, 1958.  On 9th February, 1959, the Delhi  Rent Control  Act, 1958 (No. 59 of 1958)-hereinafter referred  to as "the Act of 1958", came into force and became  applicable to the premises which were the subject-matter of the pending suit.   On 13th March, 1961, the appellant, relying  on  the provisions  of  s.  50(2)  of the  Act  of  1958,  filed  an application  before  the trial Court requesting it  to  hold that the suit had abated on the ground that the suit related to  premises  the construction of which had  been  completed after the 1st day of June, 195 1, but before the 9th day  of June, 1955.  The trial Court, after taking into account  the evidence,  recorded a finding that the appellant had  failed to  prove that the premises had been completed  during  this period  mentioned  in  s. 50(2) of the  Act  of  1958,  and, consequently,  rejected  the application and held  that  the suit  was  to proceed on merits.  Against  that  order,  the appellant  filed an appeal before the District  Court  which was  heard  by the Additional  Senior  Sub-Judge  exercising enhanced appellate powers in Delhi.  The appeal purported to be under s. 34 of the Act of 1952.  The appellate Court held that  the order passed by the trial Court was not  an  order under  the Act of 1952, but an order under the Act of  1958, so  that  no  appeal lay, and dismissed the  appeal  on  the ground  of non-maintainability.  The revision filed  by  the appellant  before  the Circuit Bench of the  High  Court  of Punjab at Delhi failed, and the appellant has now come up to this Court by special leave in this appeal. It appears to us that both the first appellate Court and the High Court committed an error in holding that no appeal lay, as a result of their failure to notice the provisions of  S. 57 of the Act of 1958.   The suit, as originally instituted, was clearly a case under s.   33 of the Act of 1952 which is as follows :               "33. (1) Any civil Court in the State of Delhi

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             or  Ajmer which has jurisdiction to  hear  and               decide  a suit for recovery of  possession  of               any premises shall have               jurisdiction to hear and decide any case under               this  Act relating to such premises if it  has               pecuniary   jurisdiction  and   is   otherwise               competent to hear and decide such a case under               any law for the time being in force.               (2)   The  value of any case under  this  Act,               for the purposes of the pecuniary jurisdiction               of  the  Court,  shall be  determined  by  the               amount  of rent which is or would  be  payable               for a period of twelve months, calculated  ac-               cording  to the highest amount claimed in  the               case:               Provided  that in the case of  any  proceeding               based  on  the certificate of  the  Controller               under   section  28,  such  value   shall   be               determined  by the amount of rent which is  or               would be payable for -a period of one month.               (3)   If any question arises whether any suit,               application  or  other proceeding  is  a  case               under   this  Act,  the  question   shall   be               determined by the Court.               (4)   For the purposes of this Chapter, a case               under this Act, includes any suit, application               or  other proceeding under this Act  and  also               includes any claim or question arising out  of               this  Act or any of its provisions,  but  does               not include any proceeding which a  Controller               is empowered to decide under Chapter IV."               61 Section 34 of that Act, which confers the right of appeal to an  aggrieved person against any decree or order of a  Court under that Act, runs as follows "34.  (1) Any person aggrieved by any decree or order  of  a court  passed under this Act may, in such manner as  may  be prescribed, prefer an appeal-- (a)  to  the court of the senior subordinate judge, if  any, where  the  value of the case does not exceed  two  thousand rupees : Provided  that where there is no senior  subordinate  judge, the appeal shall lie to the district judge; (b)  to the court of the district judge, where the value  of the case exceeds two thousand rupees but does not exceed ten thousand rupees; and. (c)  to the High Court, where the value of the case  exceeds ten thousand rupees. (2)  No  second  appeal shall lie from any decree  or  order passed in any case under this Act." It  is correct that the claim of the appellant was that  the suit abated because of the applicability of section 50(2) of the Act of 1958; 62 but,  in view of the provisions of s. 57 of that Act, it  is clear that an order of abatement will be an order under  the Act  of 1952 and not under the Act of 1958.  Section  57  of the Act of 1958 reads :-               "57. (1) The Delhi and Ajmer Rent Control Act,               1952,  in  so far as it is applicable  to  the               Union territory of Delhi, is hereby repealed.               (2)   Notwithstanding  such repeal, all  suits               and  other  proceedings  under  the  said  Act               pending,  at  the commencement  of  this  Act,               before  any court or other authority shall  be

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             continued  and disposed of in accordance  with               the provisions of the said Act, as if the said               Act  had continued in force and this  Act  had               not been passed :               Provided  that in any such suit or  proceeding               for  the fixation of standard rent or for  the               eviction  of  a tenant from  any  premises  to               which section 54 does not apply, the court  or               other authority shall have regard to the  pro-               visions of this Act:               Provided  further  that  the  provisions   for               appeal  under the said Act shall  continue  in               force  in  respect of  suits  and  proceedings               disposed of thereunder." The saving clause in sub-s. (2) of s. 57 makes it clear that the  present suit, which was pending under the Act of  1952, was  to be continued and disposed of in accordance with  the provisions of that Act, though, under the first proviso, the court  deciding the suit was required to have regard to  the provisions of the Act of 1958.  Consequently, when  deciding the  question whether that pending suit had abated  or  not, the  Court  was  still  functioning as  a  court  seized  of jurisdiction  under the Act of 1952 over the  pending  suit, though, in deciding that suit, the court had to have  regard to  the provision contained in s. 50(2) of the Act of  1958. In  thus  applying the provision of s. 50(2) of the  Act  of 1958  to  the suit pending before it, the  Court  was  still acting  under  the  Act of 1952, and the  order  passed  for abatement or refusing to abate the suit and to continue  its trial  was  an order under the Act of 1952 under  which  the Court  was  still continuing to exercise  its  jurisdiction. Further,  the second provide to s. 57(2) of the Act of  1958 laid  down that the provisions for appeal under the  Act  of 1952  were  to  continue-in force in respect  of  suits  and proceedings disposed of thereunder.  Consequently, the right of  appeal against the order continued to be governed by  s. 34 of the Act of 1952, and the appeal was wrongly  dismissed by  the  Additional Senior Sub-Judge on the ground  that  no appeal  lay.   The  order  of that  Court  as  well  as  the revisional   order  of  the  High  Court  were,   therefore, incorrect. 63 However,  when  this appeal came up for hearing  before  us, learned counsel for the respondents raised another point for challenging  the  competency of the appeal  that  was  filed against the order of the trial Court.  It was urged that the order, rejecting the application of the appellant to  record the  abatement of the suit and directing continuance of  the suit,  was  not an order of such a nature against  which  an appeal  could be filed under s. 34 of the Act of 1952.   The word "order" is used in S. 34 without any limitations,  with the  exception  that it must be an order of a  court  passed under  the Act of 1952; but it is contended that  this  word cannot   be  interpreted  so  widely  as  to   include   all interlocutory  orders or other similar orders passed in  the course  of  the trial of a suit.  This aspect  came  up  for consideration  before this Court when interpreting S.  38(1) of the Act of 1958 in which also a provision for appeals has been made, and the language used is very wide inasmuch as it is  laid down that "an appeal shall lie from every order  of the  Controller  made under this Act........ The  extent  of this  right of appeal under S. 38(1) was considered by  this Court  in the Central Bank of India Ltd. v.  Gokal  Chand(1) and  it was held that "the object of S. 38(1) is to  give  a right  of  appeal to a party aggrieved by some  order  which

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affects his right or liability.  In the context of S. 38(1), the  words  "every order of the Controller made  under  this Act, though very wide, do not include interlocutory  orders, which are merely procedural and do not affect the rights  or liabilities   of  the  parties."  The  principle  was   thus recognised that the word "order" used in such context is not wide enough to include every order, whatever be its  nature, and particularly orders which only dispose of  interlocutory matters.   In the case before us also, all that was done  by the  application  presented  by the appellant  on  the  13th March,  1961,  was to raise a preliminary  issue  about  the maintainability of the suit on the ground that the suit  had abated by virtue of s. 50(2) of the Act of 1958.  The  Court went  into that issue and decided it against the  appellant. If the decision had been in favour of the appellant and  the suit  had been dismissed, no doubt there would have  been  a final  order in the suit having the effect of a decree  (see the  decision of the Full Bench of the Lahore High Court  in Ram  Charan Das v. Hira Nand(2).  On the other hand, if,  as in the present case, it is held that the suit has not abated and  its  trial  is to continue, there  is  no  final  order deciding  the  rights or liabilities of the parties  to  the suit.   The  rights and liabilities have yet to  be  decided after full trial has been gone through.  The decision by the court  is only in the nature of a finding on  a  preliminary issue on which would depend the maintainability of the suit. Such a finding cannot be held to be an order for purposes of s. 34 of the Act of 1952, and, consequently, (1) (1967] 1 S.C.R. 310. (2) A.I.R. 1945 Lah, 298. 64 no  appeal against such an order would be maintainable.   It was indicated by this Court in the case of the Central  Bank of  India Ltd. (1) that, in such a case, it is open  to  the appellant to canvass the error, defect, or irregularity,  if any,  in the order in an appeal from the final order  passed in the proceedings for eviction.  In the present case  also, therefore, it is clearly open to the appellant to raise this plea  of  abatement  of the suit, if and when  he  files  an appeal  against  a decree for eviction passed by  the  trial Court. Learned counsel for the appellant relied on the language  of sub-s.  (4)  of s. 33 of the Act of 1952 to  urge  that  the appellant’s  application,  requesting  the  trial  Court  to record  abatement of the suit, should be held to be  a  case under s. 3 3 (1) of that Act, and the order, rejecting  that application,  should  be  held to be,  therefore,  an  order finally  disposing  of that case.  This submission  made  by learned  counsel ignores the nature of the  application  and the  effect of the order made on it by the trial Court.   As we have indicated earlier, the application was in the nature of  a  request to the court to decide  a  preliminary  issue whether  the suit had abated or was still maintainable,  and to  dismiss  the suit on recording the finding that  it  had abated.   The  application  was, therefore,  one  raising  a preliminary  issue  as to the maintainability of  the  suit; and, in fact, the request for raising the issue was  allowed by the trial Court by going into that issue and recording  a finding.    On   that   finding,  the   suit   was   clearly maintainable.  Such a finding on a preliminary issue,  which relates to the maintainability of a suit, is not an order of a  nature  against  which an appeal can  lie.   As  we  have indicated above, the only remedy available to the  appellant was,  and  still  is, to challenge the  correctness  of  the decision  of  the  trial Court in  the  appeal  against  the

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decree, if passed against him. The appeal, consequently, fails and is dismissed with costs. G.C                               Appeal dismissed (1) [1967] 1 S.C.R. 310. 65