Case: M/S. A. C. Estates Vs. M/S. Serajuddin &amp; Co. And Another

Act. 10. This takes us to the order of August 9, 1956. We have already set out S. 16(3) and there is no doubt that it consists of two parts. Under the first part, the Controller has to declare by order that the tenants interest in so much of the premises as has been sublet has ceased and the sub-tenant has become a tenant directly under the landlord from the date of the order. The second part gives power to the Controller to fix rents payable by the tenant and such sub-tenant to the landlord from the date of the order. It may be that both orders under the two parts may be passed on the same date; but it appears what usually happens is that the Controller first declares that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord, and thereafter proceeds to fix rent under the second part after taking such further evidence as he considers necessary. Even so, the order under the first part declaring that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord must be treated as final so far as the Controller is concerned and it cannot be a mere interlocutory order, which could be rescinded by the Controller while he is taking steps to fix the rent as provided in the second part of S. 16(3). In this connection our attention is drawn to the decision of the Calcutta High Court in Anil Kumar Mukherjee v. Malin Kumar Mazumdar, (1960) 64 Cal WN 938, where it was held with reference to S. 29 of the Act that the words "final order" there mean the order making the declaration and fixing the rent under S. 16(3) or the order dismissing the application under S. 16(3). We do not propose to consider whether Mukherjees case, (1960) 64 Cal WN 938 is correctly decided. Assuming it to be correct, what it lays down inter alia is that an order under the first part of S. 16(3) merely making a declaration without the further order fixing rent under the second part thereof is not appealable as a final order under S. 29. But what we are concerned with here is whether it was open to the Controller after he had made the order declaring the sub-tenant a direct tenant under the landlord to set aside that order subsequently while proceeding to fix rent on the basis of something which transpired after that order had been passed. We are of opinion that an order like that passed on August 9, 1956, must be taken to be final insofar as it declares the tenancy of the tenant of the first degree to have ceased and declares the sub-tenant to be the direct tenant of the landlord, so far as the Controller is concerned. After having made such a declaration it is not open to the Controller (while proceeding to fix rent under the second part of that section) on some ground which supervenes after the date of the order to rescind it. Our attention in this connection is drawn to S. 29(5) of the Act which gives power to the Controller to review his orders on the conditions laid down under Order XLVII of the Code of Civil Procedure. But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which existed at the date of the order and there can be no review of an order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event (see Rajah Kotagiri Venkata Subbamma Rao v. Raja Vellanki Venkatarama Rao, (1900) ILR 24 Mad 1 (PC)) Section 29(5) further gives power to the Controller to act under S. 151 or S. 152 of the Code of Civil Procedure. Section 152 has no application in the present case for there is no clerical or arithmetical mistake here. Nor can the Controller in our opinion set aside an order which was right when it was made, under S. 151 of the Code of Civil Procedure as there is no question in such circumstances of subserving the ends of justice or preventing the abuse of the process of the Court. We are therefore of opinion that the Controller had no power to set aside the order that had been made on August 9, 1956 for it was right when it was made. The view taken by the High Court in this connection is correct. 11. It is equally clear that when the Controller passed the order on February 11, 1957, dismissing the application under S. 16(3) that order was appealable under S. 29(1), for it was undoubtedly a final order within the meaning of S. 29(1) and the respondent would be entitled to appeal there-from. 12. Finally there is nothing in the contention of the appellant that S. 16(3) would not apply because the tenant had been ejected on August 22, 1956 and thereafter the sub-tenant could not claim the benefit of S. 16(3).In the present case the benefit of S. 16(3) was given to the tenant not after August 22, 1956, but before that date i.e. on August 9, 1956. That order so far as it went was final and was not open to review or cancellation by the Controller who had thereafter only to fix the rent under the second part of S. 16(3). While going on with the proceeding for fixation of rent the Controller could not set aside the order already made under the first part of S. 16(3) on August 9, 1956 and insofar as he did so, he acted without jurisdiction. 13. The Appeal Court was therefore right in setting aside the order of the Controller and the High Court was equally right in dismissing the application by the appellant except as to fixation of rent.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. We are of opinion that the appeal must fail. There is a clear finding of the Controller that the respondent was inducted as a sub-tenant by Po in June, 1954. At that time, the appellant had not even given notice to Po determining his tenancy. It was only in July, 1954 that notice was given to Po determining the tenancy as from the end of August, 1954. Therefore, the respondent become a sub-tenant of the tenancy which Po held under the appellant9. The next question is whether the respondent was entitled to the benefit of the Act which came into force on March 31, 1956. On that date a suit was pending against Po based on the notice given to him in July 1954 determining his tenancy.The argument on behalf of the appellant is that as Pos tenancy had been determined by the end of August, 1954 by virtue of the notice referred to above, the respondent was no longer sub-tenant on March 31, 1956 as the tenancy of the tenant of the first degree had itself come to an end. This in our opinion is not correct. This word "tenant" is defined in S. 2(h) of the Act to include any person continuing in possession after the termination of his tenancy but shall not include any person against whom any decree or order for eviction had been made by a Court of competent jurisdiction. In view of this inclusive definition of the word "tenant in the Act Po would continue to be a tenant under the Act though his tenancy had been determined by notice and he ceased to be a tenant only on August 22, 1956, when the decree for ejectment was passed against him. It is true that the definitions in S. 2 are subject to anything being repugnant in the subject or context. But we see nothing repugnant in the subject or context of S. 16(3) to persuade us to hold that the definition of tenant in S. 2(h) would not apply to a case under S. 16(3).The Act is a measure for the protection of tenants and sub-tenants and should not be so interpreted as to take away the protection which it intends to give to them. We are therefore of opinion that Po continued to be a tenant upto August 22, 1956 and therefore the respondent continued to be a sub-tenant after the coming into force of the Act10. This takes us to the order of August 9, 1956. We have already set out S. 16(3) and there is no doubt that it consists of two parts. Under the first part, the Controller has to declare by order that the tenants interest in so much of the premises as has been sublet has ceased and the sub-tenant has become a tenant directly under the landlord from the date of the order. The second part gives power to the Controller to fix rents payable by the tenant and such sub-tenant to the landlord from the date of the order. It may be that both orders under the two parts may be passed on the same date; but it appears what usually happens is that the Controller first declares that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord, and thereafter proceeds to fix rent under the second part after taking such further evidence as he considers necessary. Even so, the order under the first part declaring that the tenants interest has ceased and the sub-tenant has become a tenant directly under the landlord must be treated as final so far as the Controller is concerned and it cannot be a mere interlocutory order, which could be rescinded by the Controller while he is taking steps to fix the rent as provided in the second part of S. 16(3). In this connection our attention is drawn to the decision of the Calcutta High Court in Anil Kumar Mukherjee v. Malin Kumar Mazumdar, (1960) 64 Cal WN 938, where it was held with reference to S. 29 of the Act that the words "final order" there mean the order making the declaration and fixing the rent under S. 16(3) or the order dismissing the application under S. 16(3). We do not propose to consider whether Mukherjees case, (1960) 64 Cal WN 938   is correctly decided. Assuming it to be correct, what it lays down inter alia is that an order under the first part of S. 16(3) merely making a declaration without the further order fixing rent under the second part thereof is not appealable as a final order under S. 29. But what we are concerned with here is whether it was open to the Controller after he had made the order declaring the sub-tenant a direct tenant under the landlord to set aside that order subsequently while proceeding to fix rent on the basis of something which transpired after that order had been passed. We are of opinion that an order like that passed on August 9, 1956, must be taken to be final insofar as it declares the tenancy of the tenant of the first degree to have ceased and declares the sub-tenant to be the direct tenant of the landlord, so far as the Controller is concerned. After having made such a declaration it is not open to the Controller (while proceeding to fix rent under the second part of that section) on some ground which supervenes after the date of the order to rescind it. Our attention in this connection is drawn to S. 29(5) of the Act which gives power to the Controller to review his orders on the conditions laid down under Order XLVII of theCode of Civil Procedure. But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which existed at the date of the order and there can be no review of an order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event (see Rajah Kotagiri Venkata Subbamma Rao v. Raja Vellanki Venkatarama Rao, (1900) ILR 24 Mad 1 (PC)) Section 29(5) further gives power to the Controller to act under S. 151 or S. 152 of theCode of Civil Procedure. Section 152 has no application in the present case for there is no clerical or arithmetical mistake here. Nor can the Controller in our opinion set aside an order which was right when it was made, under S. 151 of theCode of Civil Procedure as there is no question in such circumstances of subserving the ends of justice or preventing the abuse of the process of the Court. We are therefore of opinion that the Controller had no power to set aside the order that had been made on August 9, 1956 for it was right when it was made. The view taken by the High Court in this connection is correct11. It is equally clear that when the Controller passed the order on February 11, 1957, dismissing the application under S. 16(3) that order was appealable under S. 29(1), for it was undoubtedly a final order within the meaning of S. 29(1) and the respondent would be entitled to appeal there-from12. Finally there is nothing in the contention of the appellant that S. 16(3) would not apply because the tenant had been ejected on August 22, 1956 and thereafter the sub-tenant could not claim the benefit of S. 16(3).In the present case the benefit of S. 16(3) was given to the tenant not after August 22, 1956, but before that date i.e. on August 9, 1956. That order so far as it went was final and was not open to review or cancellation by the Controller who had thereafter only to fix the rent under the second part of S. 16(3). While going on with the proceeding for fixation of rent the Controller could not set aside the order already made under the first part of S. 16(3) on August 9, 1956 and insofar as he did so, he acted without jurisdiction.