Appeal No 476 of 1961
Appeal by special leave from judgment and order dated January 5 1955 of the Punjab High Court of Circuit Bench at Delhi in Civil Misc
No 71D of 1954
N C Chatterjee Hardayal Hardy and N N Keswani for the appellant
R section Narula for the respondents Nos 1 to 3 1962
April 18
The Judgment of the Court was delivered by AYYANGAR J
This is an appeal by special leave against a judgment of a learned Single Judge of the Punjab High Court holding that section 7 A of the Delhi and Ajmer Rent Control Act 1947 hereinafter called the Act was unconstitutional as violative of the fundamental right guaranteed by article 14 of the Constitution
The first respondent Ram Nath owns a building in Delhi of which among others the appellant company was a tenant
The appellant moved the Rent Controller
Delhi under section 7A of the Act for fixation of the fair rent of the portion in its occupation
These proceedings have had a chequered history which it is not material to set out but suffice it to say that the Rent Controller 244 Delhi computed the fair rent for the entire building at Rs 565 p m and the fair rent payable by the appellant at Rs 146 per month
It is necessary to mention that under the Act the Rent Controller would have bad jurisdiction to entertain the appellant s application for the fixation of fair rent and for so fixing it only if the construction of the building in question was completed after March 24 1947 but if the construction of the building was completed earlier the ordinary Civil Courts and not the Rent Controller would have had jurisdiction to determine the matter
The date of the completion of the first respondent s building therefore loomed large in the enquiry before the Rent Controller and that authority recorded a finding on this matter adverse to the first respondent in his order
The landlord first respondent preferred an appeal against the order of the Rent Controller to the learned District Judge Delhi but the appeal was dismissed
Thereafter he moved the High Court of the Punjab under article 227 of the Constitution challenging the correctness and propriety of every finding by the Rent Controller and of the District Judge on appeal
This petition came on for hearing before a learned Single Judge of the High Court
A Division Bench of the High Court had sometime previously held in another batch of cases British Medical Stores vs Bhagirath Mal 1 arising under the Act that section 7A was unconstitutional and void and following this decision he allowed the petition of the first respondent and set aside the order of the Rent Controller as without jurisdiction without considering the other matters which would arise if the sect ion was valid and the Rent Controller had jurisdiction
From this decision of the learned Single Judge the appellant preferred an appeal under the Letters Patent to a Division Bench
1 1955 1
L R 8 Punjab 639
245 Mean while the judgement in British Medical Stores vs Bhagirath Mat 1 was brought tip by way of appeal to this Court and as the appeal was getting ready to be heard the appellants applied for and obtained special leave to appeal to this Court even during the pendency in the High Court of the appeal by it under the Letters Patent
The Letters Patent appeal was thereafter withdrawn by the appellant
The appeal in the British Medical Stores case 1 was heard by this Court and the same was allowed by a judgment dated August 2 1961 and this Court held reversing the judgment of the Punjab High Court that section 7 A of the Act was valid It would thus be seen that the only point which the learned Judge considered and on which the revision petition of the landlord first respondent was allowed no longer subsists and hence the appellant is entitled to have the appeal allowed
As the learned Single Judge did not consider the other objections raised by the first respondent to the order of the Controller fixing the standard fair rent payable by the appellant the appeal has to be remanded to the High Court for being dealt with according to law
Before concluding it is necessary to advert to a preliminary objection to the hearing of the appeal raised by learned Counsel for the landlord respondent
His submission was that the special leave which was granted by this Court exparte should be revoked as having been improperly obtained
The facts in relation thereto were these
The judgment of the learned Single Judge to appeal from which the leave was granted was dated January 5 1955 and the application to this Court seeking leave was 1 Punjab 639
2 See Roshan Lal Mehrau Ishwar Dass 1962 2 SCR947
246 made on January 5 1959 ie after a lapse of four years
It is obvious that it was an application which had been filed far beyond the period of limitation prescribed by the rules of this Court
Learned Counsel for the respondent urged that there were no sufficient grounds for condoning that long
delay and that we should therefore revoke the leave
We are not disposed to accede to this request for revoking the leave in the peculiar circumstances of this case
Learned Counsel invited our attention to a few decisions in which leave granted exparte was revoked at the stage of the hearing of the appeal on an objection raised by the respondent but we do not consider that the facts of the present appeal bear any analogy to those in the decisions cited
In the first place there was no by passing the High Court because the appellant had filed an appeal under the Letters Patent and it was during the pendency of that appeal that he moved this Court for leave
Next there was no suppression of any fact which would have relevance to the granting or withholding of the leave and the exact position as it stood at the time the petition was tiled was set out in it
Thirdly it is obvious that if the delay had not been condoned and leave refused when application therefor was made in January 1959 the appellant would have prosecuted his Letters Patent appeal and he could obviously have come up here if the decision went against him
In fact the grant of special leave in the circumstances of this case merely served to shorten the proceedings and this Court acceded to the petition for leave obviously because the appeal in this Court from judgments in the case of the British Medical Stores etc
1 were getting ready for bearing and there was some advantage if the appellant was in a position to intervene in those other appeals
In 1 Punjab 639
247 view of these considerations we are of the opinion that this is not a case in which the leave should be revoked
Nevertheless we consider that we should add that except in very rare cases if not invariably it should be proper that this Court should adopt as a settled rule that the delay in making an application for special leave should not be condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave
Such a course besides being just would be preferable to having to decide applications for revoking leave on the ground that the delay in making the same was improperly condoned years after the grant of the leave when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then revoked when he would be deprived of the opportunity of pursuing other remedies if leave had been refused earlier
We would suggest that the rules of the Court should be amended suitably to achieve  this purpose
The result is that the appeal is allowed and the order of the learned Single Judge accepting the revision petition under article 227 preferred by the landlord first respondent is set aside
The case is remanded to the High Court for considering the  petition of the respondent in accordance with law and on the footing that section 7 A of the Rent Control Act is a valid piece of legislation
It is admitted that the point as regards the constitutionality of section 7 A of the Rent Control Act was not raised by the landlord respondent and in the circumstances of the case we direct the parties to bear their own costs in this Court
The costs in the High Court will be as directed by that Court
Appealed allowed
To be reprinted


Summary:
Against the judgment of the Single judge of the Punjab High Court dated January 5 1953 in which he followed the decision of a Division Bench holding that section 7A of the Delhi and Ajmer Rent Control Act 1947 was unconstitutional and void the appellants preferred an appeal under the Letters Patent
Meanwhile the judgment or the Division Bench was brought up by way of appeal to the Supreme Court and as the appeal was getting ready to be heard the appellants made an application on January 5 1959 for special leave to appeal to the Supreme Court against the judgment of the Single judge
No notice was given to the respondent to the application and special leave was granted ex parte
The Letters Patents appeal was thereafter withdrawn by the appellants
When the appeal came on for hearing in due course the respondent raised an objection to the hearing of the appeal on the grounds that the application for special leave was barred by limitation that there were no sufficient reasons for condoning the long
delay of four years and that the special leave granted ex parte should be revoked
243 Held that in the peculiar circumstances of the case leave should not be revoked
Expect in very rare cases if not invariable the Supreme Court should adopt as a settle rule that the delay in making an application for special leave should not condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave
Desirability of the Rules of the Supreme Court being amended suitably pointed out