Case: Bant Singh Gill Vs. Shanti Devi &amp; Ors

1. 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 ofthe 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 1952", 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, 1951, 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.

Reasoning:
2. It appears to us that both the first appellate Court and the High Court committed, an error in holding that no appellant as a result of their failure to notice the provisions of S. 57 of the Act ofsaving 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 proviso 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 were, therefore,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 trialsubmission 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 decree, if passed againstis 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; 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 ofaspect 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, Civil Appeal No. 1339 of 1956,(reported in AIR 1967 SC 799  ) 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 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 "orders" 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. Hora Nand, AIR 1945 Lah 298(FB)]. 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 had 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 order for purposes of S. 34 of the Act of 1952, and, consequently, 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., Civil Appeal No. 1339 of 1996(reported in AIR 1967 SC 799  ) (supra) 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. Inthe 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