Zaina Bibi And Others v. Jamal Bhat And Others

1. This is a revision petition directed against an interlocutory order passed by the Rent Controller on 28-6-65, overruling an objection raised by the non-applicant petitioner about the minority of Ghulam Mohd, respondent 2 in the original application.

2. A preliminary objection has been raised by the learned counsel for the respondents that this order is not revisable. He has invited my attention to Section 21 of the Houses and Shops Rent Control Act. This section provides an appeal from a final order of the Rent Controller to the District Judge in whose jurisdiction the house or shop in respect of which the order is made is situate.

3. Sub-S. (3) of this section lays down the procedure for filing the appeal and powers and procedure of the court and it says that the powers and procedure of hearing the appeal shall be the same as in appeals from orders under the Code of Civil Procedure. Sub-S. (4) further lays down that from an order made in such appeal no further appeal shall lie, but the High Court may revise the order on the ground of error of law or on the ground of material failure of justice. The same sub-section preserves the powers of the District Judge or the High Court as are given to courts under Sections 151 and 152 of the CPC. It also gives a power of review to these courts.

4. The matter is a very simple one. From a plain reading of S. 21 no remedy is provided to an aggrieved party unless the order is from a final order. An interlocutory order cannot be agitated either in appeal or by revision under this section After the Rent Controller passes a final order, it is only against such final order that an appeal is competent before a District Judge. The High Court is empowered to entertain a revision petition against the order of the District Judge only in such appeals, which means that the basic order of the Rent Controller must be a final order and not an interlocutory order. When the powers of the High Court to act as a court of revision have been clearly defined in this section, Section 115 of the CPC is automatically ruled out and no person can invoke the jurisdiction of the High Court under the said section. The matter is so simple that it does not require any elaborate discussion. I am fortified in my view by an authority AIR 1943 Cal. 247 which is based on the West Bengal House Rent Control Order of 1942. Paragraph 12 of that order is similar in substance to S. 21 of our Act. Sub-paras (1) and (2) of that para read as under:

(1) Any person aggrieved by an order of the Controller may, within 15 days from the date on which the order is communicated to him, in respect of houses in the presidency town of Calcutta present an appeal in writing to the Chief Judge of the Court of Small Causes of Calcutta and, in respect of houses elsewhere to the District Judge of the District.

(2) The Chief Judge or the District Judge, as the case may be, shall then send for the record of the case from the Controller and after perusing such record and after making such further enquiry as he thinks fit shall decide the appeal.

5. Their Lordships have after discussing the case law on the subject held that a District Judge in exercising powers under para 12 of the Order does not act as a court and consequently his orders are not revisable by the High Court.

6. Even S. 104 of the Constitution of J and K which vests the superintendence and control of the subordinate courts in the High Court cannot help the petitioner. This power is exercisable by the High Court over the subordinate courts. Here the Rent Controller is not a court; he is a persona designata and therefore the orders of the Rent Controller are not orders of a court and are not revisable under this provision of the Constitution. In my opinion this revision petition is not competent. I need not make any comment about the merits of this revision petition. After the Rent Controller passes his final order in the petition, if the petitioner feels that some illegality has been committed by the Rent Controller, he can agitate that in an appeal against that order.

7. The present revision is misconceived and is therefore dismissed.

FJ/DHZ

8. Revision dismissed.