C.R.No.5454 of 2011 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.5454 of 2011 (O&M) Date of decision:2.11.2011 Sham Sunder and others ...Petitioners vs Ravinder Nath Sharma ....Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Vikas Sagar, Advocate, for the petitioners. Mr.D.C.Mittal, Advocate, for the respondent. -- Rakesh Kumar Garg,J. The brief facts, out of which the present revision petition has arisen, are that respondent filed an ejectment application against one Mohan Lal (predecessor-in-interest of the petitioner) for his eviction from the demised premises. In the said ejectment petition, the tenant-petitioner was proceeded against ex-parte and, therefore, an ex-parte order of eviction dated 4.4.2009, was passed against him. The tenant-petitioner filed an application for setting aside the aforesaid ex-parte order of eviction dated 4.4.2009 before the Rent Controller. The said application was dismissed by the Rent Controller vide order dated 6.5.2010. The tenant-petitioner filed an appeal before the Appellate Authority against the aforesaid order dated 6.5.2010. The said appeal was dismissed by the Appellate Authority vide impugned order dated 1.8.2011 holding that the same was not maintainable. The instant revision petition has been filed by the petitioner, (successor-in-interest of Mohan Lal, who had expired during the C.R.No.5454 of 2011 2 pendency of appeal before the Appellate Authority) challenging the order dated 1.8.2011 of the Appellate Authority and the order dated 6.5.2011 of the Rent Controller whereby their prayer for setting aside ex parte decree dated 4.4.2009 and the order dated 9.9.2008 proceeding ex parte against them, was rejected. Noticing the contentions of the learned counsel for the petitioners, this Court passed the following order on 7.9.2011:- “Relies upon judgment of the Supreme Court in Harjit Singh Uppal v.Anup Bansal, JT 2011(6) SC 236, to contend that the impugned order dated 6.5.2010 dismissing the application of the petitioner-tenant for setting aside the ex parte decree is appealable and, therefore, the Appellate Authority has erred at law non suiting the petitioners on the ground that the appeal against the order dated 6.5.2010 was not competent. Notice of motion. At this stage, Shri D.C.Mittal, Advocate, accepts notice on behalf of the respondent. List on 26.9.2011. Till then dispossession of the petitioners shall remain stayed. ( Rakesh Kumar Garg) Judge September 7, 2011” Shri D.C.Mittal, learned counsel appearing on behalf of the respondent has relied upon a judgment of this Court in the case of Lakhi Ram v. Sagar Chand and another, 1963 PLR,691 and M/s Daya Chand Hardayal v. Bir Chand , 1983 S.L.J. 420, to contend that Appellate Authority cannot entertain an appeal against the order passed by the Rent Controller refusing to set aside an ex parte ejectment order. Mr.D.C.Mittal, learned counsel has further relied upon the case of Mahant Garib Dass C.R.No.5454 of 2011 3 Chela Mahant Uttam Dass v. Smt. Harbans Kaur and others, 1987(1) RCR 121, to contend that refusal to set aside the ex parte order is though appealable order under the provisions of Order 43 Rule(1)(d) of the Code of Civil Procedure but the provisions of the Code of Civil Procedure, are not applicable before the Rent Controller in its strict sense, thus, the impugned order was passed in accordance with law and the instant revision petition is liable to be dismissed. I have heard the learned counsel for the parties and perused the impugned orders and others documents placed on the record of this petition. Section 15 of the East Punjab Urban Rent Restriction Act, 1949, reads thus:- “15. Vesting of appellate authority on officers by State Government:- (1)(a) The State Government may, by a general or special order, by notification confer on such officers and authorities as they think fit, the powers of appellate authorities for the purpose of this Act, in such area in such classes of cases as may be specified in the order. (b) Any person aggrieved by an order passed by the Controller may, within fifteen 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 fifteen days the time taken to obtain a certified copy of the order appealed against shall be excluded. (2)On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal. (3) The appellate authority shall decide the appeal after sending for records of the case from the Controller and after giving the C.R.No.5454 of 2011 4 parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller. (4) The decision of the appellate authority and subject only to such decision, an 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 (5) of this section. (5) The High Court may, at any time on the application of any aggrieved party or on its own motion, call for and examine the records 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.” At this stage, it is useful to refer to the judgment of Hon'ble the Apex Court in the case of Harjit Singh Uppal v.Anup Bansal,JT 2011 (6)SC 236, wherein it has been observed as under:- “25.Section 15(1)(b) of the 1949 rent Act provides, to a person aggrieved by an order passed by the Rent Controller, a remedy of appeal. The Section provides for limitation for filing an appeal from that order and also the forum to which such appeal would lie. The provision, for maintaining the appeal, does not make any difference between the final order and interlocutory order passed by the Rent Controller in the proceedings under the 1949 Rent Act. There is no specific provision in the Section that if a party aggrieved by an interlocutory order passed by the Rent Controller does not challenge that order in appeal immediately, though provided, and waits for the final outcome, whether in the appeal challenging the final order of the Rent Controller, the correctness of the interlocutory order from which an appeal lay could or could not be challenged in the appeal from the final order.” C.R.No.5454 of 2011 5 It may also be relevant to mention here at this stage that the view taken by this Court in Lakhi Ram's case (supra), M/s Daya Chand Hardayal's case (supra) and Mahant Garib Dass Chela Mahant Uttam Dass's case (supra), are based upon a notification passed under the provisions of the Punjab Urban Rent restriction Act, 1947, (which was repealed by section 21 of the East Punjab Urban Rent restriction Act, 1949), whereby the Appellate Authorities were vested with powers to hear appeals against an order passed under sections 4, 10, 12 and 13 of the said Act, and it was held that the said notification continued to be in force. The applicability of said notification came to be interpreted in the above referred judgments. It is relevant to refer to the following observations of the Full Bench of this Court in M/s Daya Chand Hardayal's case (supra), which reads thus:- “ Having construed the basic provisions of section 15, itself, one may now turn to the notifications issued thereunder on which primarily the argument on behalf of the tenant was sought to be rested. Herein it is common ground that the fountain head of the notifications is again the opening part of Section 15 itself. This visualises three distinct matters which may be prescribed by general or special orders by notification by the State Government. These are:- (i)the classes of cases in which appeals would lie, (ii)The forum for filing such appeals i.e. before such officers and authorities as may be prescribed, and (iii) the geographical area with regard to each such form. As these three things are distinct and separate and plainly so prescribed, the matter is too plain to call for any further elaboration. Once that is so, it would follow that the State Government having authority to prescribe C.R.No.5454 of 2011 6 by a notification, the area, the forum and classes of cases, may do so either separately or by a composite notification to the same effect”. “ It is in the aforesaid context that the issuance of the first notification has to be viewed. It is common ground that Notification No.1562-CR47/9228 dated 14.4.1947 was published in the Punjab Gazette in the following terms:- “In exercise of the powers conferred by sub-clause (a) of clause (1) of Section 15 of the Punjab Urban Rent restriction Act, 1947, the Governor of Punjab is pleased to confer on all Distt. And Sessions Judges in the Punjab in respect of the Urban Areas in their respective existing jurisdiction, the powers of Appellate Authorities for the purpose of the said Act with regard to orders made by Rent Controller under Sections 4,10,12 and 13 of the said Act. I would notice straightaway that there is not a hint of challenge to the validity and enforceability of the aforesaid notification and the fact that thereby the only orders of the Controller which were made appealable were the ones issued under Sections 4,10, 12 and 13 of the said Act. Nor is there any dispute that the aforesaid notification continued to have force and validity. Under the later provisions of the East Punjab Urban Rent Restriction Act, 1949, and indeed this is the case of the petitioner-tenant himself in the grounds of revision. This apart, Lakhi Ram v. Sagar Chand and another, 1963 P.L.J.691 is clear authority that the aforesaid notification continued to hold the field under the subsequent statute in view of Section 22 of the Punjab General Clauses Act, 1898. C.R.No.5454 of 2011 7 “Now Section 4 deals with the determination of air rent. Section 10 lays an embargo on the landlord to interfere with the amenities enjoyed by the tenant. Section 12 empowers the Controller to make an order, for necessary repairs on the failure of the landlord to do so, while section 13 deals with the eviction of tenants. Appeals apparently are provided only in these four contingencies. The notification no doubt was passed under the Punjab Urban Rent restriction Act, 1947, which was repealed by section 21 of the East Punjab Urban Rent restriction Act, 1949. It is however, well to observe that sections 4,10,12 and 13 of the repealed Act dealt with identical situations in the corresponding provisions of the Act which are now in force........” The aforesaid judgment undoubtedly has held the field within this jurisdiction and was followed, and reiterated later in Bikramjit Singh Pal v. Jaswant Singh, 1976 P.L.R.16, Consequently, there is no manner of doubt that the 1947 notification remained applicable in terms both in the State of Punjab and in the State of Haryana as well”. There is no dispute with the applicability of the aforesaid notification dated 14.4.1947 till date. However, it may also be useful to refer to the notification dated 29.4.1976 issued under the provisions of the East Punjab Rent Restriction Act, 1949, which reads thus:- “No.4137/2-CII-76/17534 dated the 29th April, 1976:- In supersession of Punjab Government Local Government Department notification No.9319-4CL-69/18997, dated the 15th July, 1969 and No.3738-2CII-75/17408 dated the 28th May, 1975 and in exercise of the powers conferred by C.R.No.5454 of 2011 8 clause (a) of sub-section (1) of section 15 of the East Punjab Urban Rent Restriction Act, 1949 (Act No.III of 1949), the Governor of Punjab is pleased to confer on all the Additional District and Sessions Judges in the State of Punjab, the powers of Appellate Authorities for the purposes of the said Act to be exercised by them in their respective jurisdiction, in respect of such appeals arising from orders passed by the Controllers as may be made over to them by the District and Sessions Judge concerned. J.S.BINDRA,Joint Secy”. Thus, a perusal of the aforesaid notification would show that vide aforesaid notification all the Additional District Judges in the State of Punjab have been empowered to hear appeals arising out of all orders of the Rent Controllers passed in the proceedings under the said Act, whereas, in the notification of 1947 the Appellate Authorities under the said Act were vested with powers of Appellate Authority only with respect to orders passed by the Rent Controllers under sections 4,10,12 and 13 only. In fact, under the aforesaid notification dated 29.4.1976, the Appellate Authorities under the provisions of the East Punjab Urban Rent Restriction Act, 1949, have been vested with much wider powers for the purpose of the said Act to be exercised by them in their respective jurisdiction in respect of such appeals arising from orders passed by the Rent Controllers, whereas, vide earlier notification dated 14.4.1947, the Appellate Authorities were vested with the powers of the Appellate Authority only with respect to the orders passed by the Rent Controllers under sections 4,10,12 and 13 of the Act only. In fact, the notification dated 29.4.1976 was not brought to the notice of the Hon'ble Full Bench of this Court in M/s Daya Chand Hardayal's C.R.No.5454 of 2011 9 case (supra). Not only this, the Hon'ble Supreme Court in the case of Harjit Singh Uppal (supra) has clearly observed that every order of the Rent Controller, which has arisen out of the proceedings under the Act is appealable. Thus, in view of the aforesaid subsequent notification issued under section 15(1) (a) of the Act, and the law as authoritatively laid down by the Hon'ble Supreme Court wherein no distinction has been made in an interlocutory or final order, the argument raised by the learned counsel for the respondent is not tenable, and the same is hereby rejected. Thus, it is held that the order refusing to set aside ex prate order of eviction is appealable before the Appellate Authority as appointed under the provisions the Act. In view of the aforesaid discussion, the revision petition is allowed, the impugned order dated 1.8.2011 of the Appellate Authority is set aside and the matter is remanded back to him for a fresh decision. The parties through their counsel are directed to appear before the Appellate Authority, Chandigarh, on 11.11.2011. The Appellate Authority is directed to decide the appeal pending before it within two months from the date of appearance as aforesaid. ( Rakesh Kumar Garg) Judge November 2, 2011 rk Referred to Reporter.