Radhey Bai v. Savitri Sharma

(1) This S.A.O. has been filed by the legal representatives of the tenant against appellate order of Rent Control Tribunal dt. 23.1.73 by which appeal has been dismissed and order of Additional Controller dt. 24.9.70 striking off the defense of the tenant under sub-section (7) section 15 of the Act has been affirmed.

(2) The premises in dispute are situate in 60, Daryaganj, Delhi, and were let out on a rent of Rs. 100.00 per month. On 16th March, 1964 the respondent landlady instituted a petition against Kundan Lal tenant, (the predecessor in-interest of the appellants) on the ground of unlawful subletting being specified in clause (b) of the proviso to sub-section (1) of Section 14 of the Act. On 23rd August, 1965 the respondent landlady filed an application under Section 15(2) of the Act praying for an order to the tenant to deposit arrears of rent and future rent. On 24th September, 1965 the Controller passed the requisite order under section 15(2) of the Act. praying for an order to the tenant to deposit arrears of rent and future rent. On 24th September, 1965 the Controller passed the requisite order under section 15(2) of the Act. This order was passed againt the legal representatives of the tenant who are appellants before me. It directed them to pay or deposit arrears of rent at the rate of Rs. 100.00 per month calculated from 1st March, 1964 within a perion of one month and thereafter continue to pay monthly rent at the said rate within 15 days of its becoming due. It is not disputed that the appellants deposited the rent for some time in compliance with the said order.

(3) However, on 17th February, 1966 the main petition for eviction was dismissed in default of appearance of the respondent landlady and an application filed for restoration was dismissed by the Additional Controller. Feeling aggrieved, the landlady filed an appeal before the Rent Control Tribunal and by order dated 5th February, 1969 the appeal was allowed and the main petition for eviction was restored to its original number and directed to be heard according to law.

(4) The application for striking off the defense, which has given rise to the present appeal was filed by the respondent land lady on 18th February, 1970 on the allegation that the appellants had committed default in payment of rent for months of December, 1969 and January, 1970 and their defense be struck off. Mr. Jaspal Singh. A. C. found that the rent for the month of April, 1970 had also not been paid and so by order dated 24th September, 1970 he struck off the defense of the appellants under Section 15(7) of the Act. An appeal against the same has been dismissed by the order assailed before me.

(5) The material facts of the case have not been disputed before me. A question of law of some importance has been raised by Mr. Bhargava, counsel for the appellants. It is this : On the dismissal of the main petition for eviction in default of appearance on 17th February, 1966 the interlocutory order dated 25th September, 1965 passed under Section 15(2) of the Act had lapsed and that the same did not revive on the restoration of the petition (on 5th February, 1969) and that it was incumbent on the Controller to pass another order under Section 15(2) of the Act if he was so pleased; and since the previous order was not in operation, the appellant tenants had not committed any default and consequeently the order striking off defense was without jurisdiction. This submission has not prevailed with the Rent Control Tribunal, but it has been reiterated in the appeal before me.

(6) I have examined the matter carefully and am of the view that there is no substance in the contention of Mr. Bhargava, counsel for the appellants. The procedure prescribed for trial of the eviction petition before the Controller has been laid down by section 37 of the Act and he has been directed to follow as far as may be the practice and procedure of a court of small causes, including the recording of evidence while holding enquiry in any proceedings under the Act. The statutory rule 23 framed under the Act has laid down that in deciding any question relating to the procedure not specially provided by the Act and the rules, the Controller and the Rent Control Tribunal shall as far as possible be guided by the provisions contained in the CPC. In the Act there is nothing inconsistent with the rules of the Civil Procedure Code with regard to the dismissal of the petition in default of appearance and its restoration and the results and effect of restoration. Accordingly, the provisions of the Civil Procedure Code govern the case.

(7) Under Order 9, Rule 8 of the Code where the defendant appears and the plaintiff does not appear (when the suit is called on for hearing), the court is required to make an order that the suit be dismissed. Under Rule 9, where a suit has been so dismissed, plaintiff may apply to have the dismissal set aside and if he satisfies the Court that there was sufficient cause for his non appearance when the suit was called on for hearing the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. It is, therefore, obvious that on setting the dismissal aside, the court has to appoint a day for proceeding with the suit and not for trying the suit de now. This indicates that the further proceedings in the suit have to start from the stage and point where they were pending before the suit was dismissed and there is no requirement of law that upon such restoration the entire proceedings must be reached again. Consequently on the restoration of a dismissed suit, all the previous proceedings and the interim orders revive and do not requir a fresh order to give them vigour. In this view, I find support from a decision of the High Court of Madras reported as . Vavvalla- Veeraswami v. Pulim Ramanna. Air 1935 Made ras 365 where it has been observed that where an order dismissing a suit for default was set aside on an application for that purpose, the suit remained as it was on the day when it was dismissed and all proceedings taken up to that date must be deemed to be in force when the dismissal was set aside. High Court of Patna in Bankam Chandra and others V. Chandi Prasad , also lays down that once a suit or appeal dismissed for default was restored by the order of the court, all ancillary orders passed in the suit or appeal before its dismissal also revive and operate since that date with all their legal implications. The High Court of Allahabad in Babu v. Dewan Singh , also supports the same view. It has been observed that the effect of the restoration was the same as if there were no dismissal of the suit and only the order of dismissal is set aside and all pending proceedings and orders were revived including the order that the suit was to proceed ex parte against the applicant and on restoration the parties were in the same position in which it was just before the dismissal. In Karora Singh and others v. Babu Ram Air 1952 Pepsu 22, the view taken was that all proceedings will be deemed to have been revived and to have remained in force when the dismissal was set aside. It has been brought to my notice that a D. B. of this court (Hardyal Hardy & M.R.A. Ansari JJ) has followed the view of the High Courts of Pepsu and Allahabad in deciding in Welcome India Trading Co. v. Western India Match Co. Fao (OS) 86 of 1970 decided on 6th April, 1971 an appeal from an order of Prithvi Raj J. dated 10th November, 1970 who had taken the same view.

(8) A contrary view has, however, have been taken in a number of decisions, which have been cited by the learned counsel for the appellant. These cases are Sham Lal v. Ram Chand 1974 Rlr (Note) 13, Pindi v. U. Thaw Ma Air 1931 Rangoon 281, Balraji Chettiar v. Masila mani Pillai, Mr 1930 Madras 514 D.Manackjee v. R.M.N. Chettyar Firm, Air 1927 Rangoon 310 Gangappa v. Boregowda Air 1955 Mysore 91, Dular Singh v. Ram Chander , Silesh Chandra Dutta v. Joy Chandra Roy Air 1925 Calcutta 1974 Seethai Ammal v. K. Narayna Ayyanger, , Khushi Ram and another v. (Firm) Mukat Behari Lal Tej Pal Air 1147 Lahore 718, Ranchhod Lodha v. Madhabji Kanji 1974 Rcr 12, Kedar Nath v. Mohani, Devi, J974 Rcr 118 and Hari Chand v. Nandlal 1972 Rcr 387. However, all these cases deal with revival of attachments before judgment and it has been held that on a dismissal of the suit, the attachment effected before judgment ceased and if it were intended to continue the same after restoration of the suit, a fresh order was necessary to be passed. This view has been adopted on a construction of specific provision contained in rule 9 of Order 38oftheCPC which reads as follows.

"9.Where an order is made for attachment before Judgment the court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed"

(9) Construing the aforesaid provisions, these decisions have held that on the dismissal of the suit, even if it be for default of appearance, the attachment before judgment has ceased under Rule 9. I do not need to express any opinion on the correctness of the said decisions, since the case before me does not relate to cessation of an order for attachment. Even in cases of attachment where Rule 9 of the Code is not specificaly attracted, its principle has not been applied on the other hand, it has been held that the interlocutory orders revive. In Pratap Chandra Gope v. Sarat Chandra Air 1931 Cal. 101, a Division Bench considered the case where an objection filed under Order 21 Rule 58 was allowed and the attachment of the property was released under Rule 60 of Order 21 which was followed by a declaratory suit under Rule 63. Sir Asutosh Mookerjee Acting Chief Justice speaking for the court observed that no doubt the effect of an order under Order 21 Rule 60 allowing a claim was to make it obligatory on the court to release the property from attachment, still the order of release was only provisional and was liable to be set aside by a regular suit and it had been held that the order for release did not put an end to the attachment so as to leave the claimant free to deal with the property as he liked......... if a suit was brought by the decree- holder to establish his right to attach the property and a decree was passed in his favor, the effect of the decree was to set aside the order of release and to maintain uninterrupted the attachment originally made. Therefore, the private transfer of the property by the claimant, though made after an order under rule 60 releasing the property from attachment would be void under S. 64 of the Code. The Bench quoted with approval an earlier decision of the High Court where it had been observed that the effect of the declaratory suit on the attachment was to set aside the order of release which had been made, and therefore to make the property still subject to attachment, to restore the state of things that had been disturbed by the order of release. Their Lordships also cited a number of authorities of the High Court of Bombay, Calcutta, Allahabad and Madras. In this decision they also observed that a different rule had been adopted with regard to attachment before judgment' in view of rule 9 of Order 38. The same view has been taken by the High Court of Madras in Chunduru Rama chandrayya v. Chunduru Nageswara Rao Air 1944 Madras 126 where the court observed that an attachment before judgment raised on a claim by a third party being allowed would revive if a suit under Order 21 Rule 63 by the decree-holder was decreed in favor of the decree-holder in the first court or on appeal. In Annapurna Patrani's case, AIR. 1950. Mad. a Division Bench of the High Court of Madras observed that where in execution of a decree property was attached, but the petition for execution was dismissed for default and on appeal the order of dismissal for default was set aside, the effect of the appellate order was to restore the order attaching property and the trial court would have to proceed with the execution application from the statge at which it had interrupted it by dismissing it for default. The appellate order restoring attachment would relate back to the date when the attachment was first made and would render invalid any attachment before judgment, the principle of rule 9 has not been extended beyond the express words. In Daggupati Nayudama v. Saif Syyaraji Dharmachand Kettuyar Air 1943 Madras 515 the court observed that the moment a review was allowed the decree already passed was restored to file and with the restoration of the suit all ancillary orders also get restored and the decree passed subsequently was the decree of trial court itself. Similarly in Thampi Muhammad Abdulkhadhir Vi Padmanabha Pillaj Parameswaran Pillai, Air 1952 Travancore-Cochin 414 a Full Bench observed that where an attachment before judgment which ceased to be in force with the dismissal of the suit would revive when the decree dismissing the suit was subsequently reversed by the same court or by a superior court and this revival would be in force from the date on which the attachment before judgment was effected.

(10) In my opinion, a consideration of the aforesaid authorities leaves no room for doubt that the principle of Rule 9 contained in Order 38 which has been held as applicable to attachments before judgment does not apply to other orders, where no such specific provision exists. As a result, the interlocutory orders which terminate on the decision of the suit on its dismissal in default will revive on the setting aside of the dismissal either by the same court or by a superior court, since the legal effect of setting aside is to restore the proceedings to the same stage and point at which they were pending immediately before they were interrupted by the dismissal. Any other construction would reduce the proceedings of the court to a mockery, because if the submission of the appellant were correct, it would logically follow that every time the suit is dismissed in default and restored and for that matter an ex parte decree or order passed and set aside, the fresh proceeding must start ever again including the passing of orders for issue of notice to the non-applicant defendants who had been proceeded ex parte, or orders closing the evidence or disallowing or allowing a commission or any question in examination of a witness. Such a result is surely not intended by the provisions and principles of law.

(11) My conclusion, therefore, is that on the restoration of a petition for eviction (which has been dismissed in default) either by the Controller or by the appellate Tribunal, the interlocutory orders passed before the dismissal of the petition under section 15(2) of the Act would revive and the proceedings would commence from the stage at which they were pending before the dismissal. Consequently. the tenants are bound to comply with the said order and cannot contend that it had lapsed and needed to be passed again. It may, however be clarified that during the period the eviction petition remained dismissed until it was restored, the operation of the interlocutory order would remain suspended and any default alleged to have been committed by the tenants during the said period will not render them liable to any penalties attaching to non-compliance with the said order. Nevertheless no sooner than the petition is restored, the interim order revives and the tenant must deposit all arrears of rent then due and refrain from committing any further default in compliance with the order except at his peril. The Rent Control Tribunal in the impugned order has taken good care of this point and the appellants had not been penalised for any default committed by them during the period occurring between the dismissal of the petition and its restoration under the orders of the appellate Tribunal. The defaults with which the appellants have been charged were those which had been committed by them long after the main petition for eviction had been restored. The appellants have, therefore, clearly violated the terms of the order passed under section 15(2) of the Act.

(12) Under Section 15(7) of the Act, it was discretionary with the Controller whether or not to strike off the defense and in the facts and circumstances of the case he thought fit to strike off the defense of the appellants. His order has been affirmed by the Rent Control Tribunal in the appellate order. In second appeal under the Act, it is beyond the jurisdiction of this court to interfere with the exercise .of discretion by the Courts below who have exerised it according to law.