Mst. Azian Bi v. Shri Ganga Dhar, Etc S

V.S Deshpande, J.:— The only question referred for consideration to this Bench is whether an appeal lies to the Rent Control Tribunal under section 38 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act) against an order passed by the Controller under section 25 of the Act refusing to stay dispossession of a person claiming an independent title to the premises which are alleged to be in his possession.

2. The proceedings under the Act are governed by the Code of Civil Procedure as far as it is applicable in view of section 37 (2) of the Act. An order of eviction passed under section 14 in favour of the landlord is executable against the tenant as a decree of a civil court under section 42 of the Act. Rule 23 made under the Act reiterates the provision of section 37 (2). It would, therefore, appear that an application for the execution of order or eviction stands on the same footing as an application for execution of a decree in the civil court.

3. Section 25 which determines the scope of the operation of the order for eviction in the executing court is as follows:

“Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises, the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom:

Provided that nothing in this section shall apply to any person who has an independent title to such premises”.

4. The argument centres round the words “all persons who may be in occupation of the premises” and the words “by evicting all such persons therefrom”. The reason is this: A decree can be executed only against the persons on whom it is binding, namely, the parties and persons who claimed through the parties. Section 25, however, is couched in wider terms. It allows the order of eviction to be executed against all persons in occupation of the premises. The first question which could have arisen for consideration is whether the wider language of section 25 is a departure from the general principle underlying the Code of civil procedure that a decree binds only the parties and persons claiming through them. That question has, however, been already answered by a Division Bench in Vidyawanti v. Takan Dass and another, 1974 RCR 47 (1), holding that section 25 does not depart from the principles of the Code of Civil Procedure and that the persons in occupation liable to be evicted are only those who claimed through the tenant. This was why the proviso to section 25 says that “nothing in this section shall apply to any person who has an independent title to such premises”.

5. When, therefore, a person claiming an independent title to such premises makes an application that the order for eviction should not be executed against him, such application has to be considered by the Controller. As was held in Vidyawanti's case “an independent title” means a claim to the occupation of the premises otherwise then through or on behalf of the tenant against whom the order for eviction is passed. The fact that decision of the Controller as to such independent title may not be final and the residuary jurisdiction of the civil court to finally adjudicate a question of title is preserved by section 50 (4) of the Act does not mean that the Controller can refuse to consider the claim of an independent title set up before him under the proviso to section 25.

6. During the investigation of such a claim it would be a matter of the greatest importance whether the existing possession of the premises held by the claimant is protected or not. If the person claiming independent title applies for stay of dispossession till his application is decided, what is the Controller to consider in granting or refusing an interim stay of dispossession pending the decision under the proviso to section 25. The Controller will be in the same position as the civil court under Order XXXIX or section 47 read with Order XXI of the Code of Civil Procedure. The prima facie case on merits of the claim to the independent title alleged will have to be considered by the Controller. Such consideration has to be on the allegations made by the claimant. Such allegations amount to saying that the claimant is in legal possession of the premises. Possession in law is itself a right whether it amount to ownership or not. Possession may be protected for various reasons such as that the possessor is the real tenant or that he is a lawful sub-tenant entitled to the benefit of section 18 of the Act or that he is the owner of the premises. The right to legal possession is affected immediately the stay prayed for is granted or refused. If it is granted the landlord can complain that his right to immediate possession has been affected. If it is refused, the claimant can say that his right to continue in possession has been affected. The order granted of refusing stay is, therefore, an order affecting the rights and liablities of the persons who are parties to the proceedings under the proviso to section 25.

7. In Central Bank of India v. Shri Gokal Chand, (1967) 1 S.C.R 310 (2), it was held by the Supreme Court that the object of section 38 (1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. An order affecting a party's right or liability is to be contrasted with a mere procedural order which the Controller may pass as steps taken towards the final adjudicaton and for assisting the parties in the prosecution of their case in the pending proceedings. They only regulate the procedure but do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with needless expense and delay by such procedural orders.

8. Is an order granting or refusing stay of dispossession in a proceeding under the proviso to section 25 a mere procedural order? In our view it is an order which affects the right to legal possession claimed against each other by the landlord and the claimant. It is, therefore, an order affecting the rights and liabilities of these parties. It is, therefore, appealable under section 38 (1) in accordance with the main of the Supreme Court decision mentioned above. With respect, the observations to the contrary made in a Single Bench decision of the court in Kailash Chand v. Hem Wati, SAO 221 of 1971, decided on 1st November, 1972, briefly reported in 1973 RLR Note 31 (3), seem to be based on the consideration that in granting or refusing stay the merits of the controversy between the parties are not prejudiced. The consideration of the merits at a later stage will not be affected by the grant or refusal of stay. For, the grant or refusal of stay would be merely an interim order. But the Supreme Court in the Central Bank case makes it clear that the expression “an order under the Act” in section 38 (1) includes both interlocutory as well as final orders. For even an interlocutory order may affect the rights and liablities of the parties. Ex hypothesi no interlocutory order can be a final decision of the controversy between the parties. Since the Supreme Court contemplates that even without the final decision of the controversy between the parties the rights and liabilities of the parties can be affected by an interlocutory order, then the question for consideration becomes narrower. Among the interlocutory orders some will be affecting the rights and liabilities of the parties, while others will be merely procedural. An order granting or refusing stay is in the nature of granting or refusing a temporary injunction. The latter order is appealable under Order XLIII Rule 1 (r). It would appear that the reason why only certain but not all interlocutory orders are made appealable under Order XLIII is that they affect the rights and liabilities of the parties. Mere procedural orders which do not do so are not made appealable under Order XLIII. This would suggest that an order granting or refusing stay is an order affecting the rights and liabilities of the parties. Had it been passed by a civil court under Order XXXIX Rule 1 or 2 it would have been appealable under Order XLIII. Since the procedure under the Act has to be analogous to the procedure under the Code of Civil Procedure, even though the right of appeal is held to be a substantive right and not merely a procedural one, on the analogy of the Code an order granting or refusing stay would have to be considered as one affecting rights and liabilities of the parties. We find so.

9. The appellants here are persons who had applied under the proviso to section 25 of the Act for the protection of their possession alleging it to be legal. Their prayers were rejected by the Controller or the Additional Controller. They, therefore, appealed, to the Rent Control Tribunal against these orders refusing the grant of stay to them. In view of the single Bench decision of this court referred to above, the Rent Control Tribunal held that these appeals were not maintainable under section 38 (1) of the Act. For the reasons given above, however, we are of the view that the appeals are maintainable under section 38 (1) of the Act. The orders of the Rent Control Tribunal are, therefore, set aside. A long time has, however, passed since the applications for stay were rejected by the Controller or Additional Controller. The question is one of discretion to be exercised by the Controller or Additional Controller. The Tribunal would not be in an equally good position to exercise the discretion. If these cases were to be remanded to the Tribunal they will take more time for disposal because too many appeals are pending with the Tribunal. We, therefore, consider it desirable in the special circumstances of these cases to deal with the merits of the stay applications ourselves. Ordinarily, when an applicant applies for the protection of his possession an interim order of stay would be passed unless no prima facie case of legal possession is made out. Without going into the merits of the applications for stay in the special circumstances of these cases, we order that the dispossession of the appellants shall be stayed till their applications claiming independent title are decided on merits under the proviso to section 25. We, therefore, order these cases to be sent back not to the Tribunal but to the respective Controller or Additional Controllers with a direction that the applications under the proviso to section 25 shall be disposed of by these authorities within a period of three months. We make no order as to costs of these appeals.

10. The parties are directed to appear before the respective Controller or Additional Controllers on the 10th April, 1978 at 10.00 a.m

Ordered accordingly.