Vinod K. Sharma, J.@mdashThis revision petition has been filed by the landlord-petitioner against the order dated 26.3.2004 passed by the Appellate Authority vide which the order dated 19.5.1997 passed by the Rent Controller, Chandigarh, dismissing the application for setting aside the ex parte order dated 18.10.1977, has been set aside.
2. The landlord-petitioner herein had brought an ejectment petition against the respondent-tenant for his ejectment from the demised premises. The ejectment was sought on the ground of non-payment of rent as well as on the ground of personal use and occupation of the demised premises. The ex parte proceedings against the respondent-tenant was taken vide order dated 19.5.1997 and thereafter order of ejectment was passed on 18.10.1997. In pursuance to the order of ejectment, the possession of the demised premises has been taken by the landlord-petitioner.
3. Thereafter the respondent-tenant filed an application under Order 9 Rule 13 of the CPC for setting aside the ex parte decree dated 18.10.1997 on the ground that he came to know about the. ejectment order passed against him only on 27.4.1998 when he went to his residence and found the same locked by somebody else.
4. The case of the respondent-tenant was that there was no material on record showing for the satisfaction recorded by the trial Court that he could not be served through ordinary process before ordering munadi and affixation, which was also not done at the proper place, but at the different addresses. Thus the claim of the respondent-tenant was that he was neither served through munadi, nor affixation and nor through publication in the newspaper.
5. The learned rent Controller dismissed the said application by holding that in view of the report of the process server that Shri Ashwani Kumar was not living there and thereafter order of substituted service was adopted and he was served through munadi besides publication in the newspaper. However, the said order was set aside by the Appellate Authority by holding that in view of the fact that the respondent herein stated on oath that he was not served, he should have been believed by the trial Court especially when he was not cross-examined on this point. The Appellate Court further held that as the statement of Ashwani Kumar that he was not served at all and his statement had gone unchallenged, therefore the learned lower Appellate Court drew a conclusion that Ashwani Kumar was not served in this case and this case was of non-service. On this ground, the finding recorded by the learned Rent Controller that Shri Ashwani Kumar was validly served was reversed by the learned Lower Appellate Court by holding the same to be without substance. The appeal was accordingly accepted. The ex parte proceedings and the ex parte order of ejectment dated 18.10.1997 passed by the learned Rent Controller against the tenant-respondent were set aside.
6. Mr.Raman K.Sharma, learned counsel for the petitioner by placing reliance on the Full Bench judgment of this Court in Daya Chand Hardayal v. Bir Chand, 1987(1) RCR 306 (FB) contended that no appeal against the order passed under Order 9 Rule 13 of the CPC by the Rent Controller was competent before the Appellate Authority and, therefore, the impugned order is without jurisdiction. He made a special reference to para 8 of the said judgment which was reads as under :-
"The issue can also be viewed from another angle. As would appear from the above, the clear and firm intention in Section 15 seems to be that it does not make any and every order of the Controller as appealable. The powers to determine the classes of cases in which an appeal may lie and the forms in which they are to be filed have been vested in the State Government. If the words "an order" used in the later part of Section 15 are to be construed as "any order" then it would plainly conflict with the opening part of Section 15 whereby the State Government alone prescribes classes of cases in which the appeals are to be provided, it would be farcical and contradictory to assume that Section 15 makes any and every order appealable, but nevertheless an authority subordinate to the legislature namely the State Government may take away that right and prescribe that an appeal would lie only with regard to a limited classes of cases and not in others."
7. The second contention of the learned counsel for the petitioner was that along with the application moved u/s 9 Rule 13 of the CPC no deposit was made in the Court of the amount due and payable by the tenant-respondent under the decree and, therefore, the present application as such was not maintainable. For this purpose, reliance was placed on the judgment of the Supreme Court in the case of Kedarnath v. Mohan Lal Kesarwari and others, 2002(1) ACJ 181 (S.C.) : 2002( 1) RCR 78.
8. Mr.Salil Sagar, learned counsel, appearing for the respondent vehemently contended that the provisions of the CPC are not applicable to the rent proceedings and, therefore, the Tribunal with object of doing justice can always devise its own procedure. For this purpose, reliance was placed on the judgment of this Court in the case of Harcharan Singh v. Ashok Kumar, 2003(3) SCC 149. Learned counsel for the respondent thereafter argued that an order under Order 9 Rule 13 of the CPC in fact resulted in merger with the order of ejectment. Therefore, the appeal was competent before the Appellate Authority as the order impugned shall be deemed to be one u/s 13 of the Rent Restriction Act qua which appeal was competent. The learned counsel for the respondent further placed reliance on the judgment of this Court in the case of Keshav Kumar Arora v. Atma Nand Jain Sabha, 2001(2) RCR(Rent) 101 to contend that the Appellate Court had power to apply principles of CPC though the Code itself is not applicable. The contention of the learned counsel for the respondent was that once provisions of Order 41 Rule 27 of the CPC were applicable to the proceedings before the Appellate Authority, resultantly, the Appellate Authority would have also a right to hear the appeal filed against order of Rent Controller passed in application under Order 9 Rule 13 of the CPC. Learned counsel for the respondent further by relying upon the judgment of this Court in
9. Mr.Salil Sagar, learned counsel for the respondent, further tried to distinguish the judgment of the Full Bench of this Court in Daya Chand Hardayal''s case (supra) on the ground that in the said case, the order impugned was regarding the payment of rent along with costs and interest. It was in that situation that the Full Bench was pleased to hold that the appeal was not competent. However, once a final order has been passed, the said ratio would not be applicable.
10. I have considered the arguments raised by the learned counsel for the parties and find that the reliance of the learned counsel for the petitioner on the judgment of the Hon''ble Supreme Court in Kedarnath ''s case (supra) is totally misconceived as in the said case the Hon''ble Supreme Court was considering Section 17 of the Provincial Small Cause Courts Act, 1887 which has no application to the facts of the present case and, therefore, no fault could be found with moving the application under Order 9 Rule 13 of the CPC without depositing the rent.
11. The contention of the learned counsel for the petitioner that no appeal was competent before the Appellate Authority against the order passed under Order 9 Rule 13 of the CPC has the force. The Full Bench of this Court considered the provisions of Section 15 of the Act and had come to the conclusion that it is a State Government alone that prescribes classes of cases in which the appeals are to be provided and, therefore, it was held that every order passed u/s 15(1) of the Act could not be held to be appealable. No such notification has been issued giving authority to the Appellate Authority to hear appeal against the order passed under Order 9 Rule 13 of the CPC which would in fact be an order deemed to have been passed by the Rent Controller under the inherent power vested in him.
12. The contention of the learned counsel for the respondent Mr.Salil Sagar that by implication the principles of the Code are applicable to the proceedings under the Act in view of the law laid down in Harcharan Singh v. Ashok Kumar, 2003(3) CCC 149; Keshav Kumar Arora v. Atma Nand Jain Sabha, 2001(2)KCR(Rent) 101 and
13. In all the above said authorities relied upon by the learned counsel for the respondent it has been held that the provisions of the Code are not applicable to the rent proceedings under the Punjab Rent Restriction Act, 1949 and, therefore, the order of the Rent Controller in this case would be deemed to have been passed in exercise of inherent power. As such, the said order, by no stretch of imagination, could be held to be appealable before the Appellate Authority. This Court in the case of Chander Mohan Mittal v. Bihari Lal, 1985(1) RCR 554 has been pleased to law down that the order of ex parte proceedings passed by the Rent Controller against a tenant which is subsequently set aside by the Rent Controller would not be appealable as the said order would be deemed to be one passed in exercise of inherent jurisdiction. This Court in the Vikram Pal v. Jaswant Singh, 1976 RCR 67 has been pleased to hold that against the order of Rent Controller refusing to set aside the ex parte order, no appeal is maintainable before the Appellate Authority. Paras 8 and 12 of the said judgment read as under :-
"8. The legal position, therefore, is that against an order passed by the Rent Controller refusing to set aside an ex parte ejectment order no appeal lies before the Appellate Authority and only a revision against such an order lies to the High Court against that order u/s 15(5) of the East Punjab Urban Rent Restriction Act.
12. As against this, the respondent denied the allegations of the petitioner. He stated as R.W.4 that the petitioner never fell sick, that he had no money to pay the arrears of rent and the plea of illness is false. According to him, the petitioners had been attending his shop regularly. Similar are the statements of his witness, Mehar Singh R.W.1. Ajmer Singh R.W.2 and Charan Singh R.W.3. The onus to prove the allegations made in the petition to set aside the ex parte ejectment order was on the petitioner Bikramjit Singh, but he failed to prove the same. The learned Rent Controller after discussing the oral and documentary evidence of the parties, rightly came to the conclusion that he failed to prove the allegations made in this petition. This decision is correct and the same is affirmed."
Therefore, the learned counsel for the petitioner was right to contend that no appeal was competent before the Appellate Authority.
In view of the reasons stated above, this revision petition is accepted and the order passed by the Appellate Authority is set aside and that of the Rent Controller is restored.
