SHANTI CHANDER BAIRATHI Vs. SHAH PATNI AND CO

JUDGEMENT

(1.) This appeal arises out of a suit for eviction under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The court, which is the civil court established under the Code of Civil Procedure, came to pass an order under Ss. (5 of Section 13 directing that on the tenant's failure to deposit or pay the amount referable to Ss. (4 of the provision, by a particular date, the court shall order the defence of the tenant to be struck off and shall proceed with the hearing of the suit. The tenant-respondent claimed that he had deposited or paid the amount so calculated but since he could not positively prove the fact by production of evidence, the court struck off his defence. He took the matter in appeal to the District Judge, for that was the court to which appeals ordinarily lay from original decrees and orders passed by the civil court, who reversed the order and remitted the case back for redecision. At that stage, the tenant-respondent was permitted to lead secondary evidence showing payment of the amount involved but the civil court was not satisfied about such payment and ordered the striking off the defence. On appeal by the tenant-respondent, the District Judge reversed the order believing the word of the tenant and accepting the secondary evidence of payment. It was the landlord-appellant who went in revision before the High court unsuccessfully, which has given rise to this appeal by special leave.

(2.) Two questions have been raised before us by learned counsel appearing for the appellant. The first one is that against such an order of striking off defence, no appeal lay to the District Judge because the quality of the order was such that it was interlocutory in nature and such an order was not enumerated under Order 43 Rule 1 of the Civil Procedure Code. The second one is that in terms of Section 22 of the Act, whereunder provision is made for appeal and revision, it is a court under the Act whose decree or order is appealable or revisable but since there is no court established under the Act, the civil court established under the Civil Procedure Code is outside the scope of Section 22. Both the points raised do not convince us. In the first place, it does not lie in the mouth of the appellant to be raising the first contention now especially when such contention was not raised by him at the time when the matter, in the first instance, was before the District Judge. He submitted to the appellate jurisdiction without demur. He cannot now be heard to raise this objection for the second bout. Additionally, his objection that in place of an appeal a revision lay to the High court is devoid of merit since the order of the kind passed under Ss. (5 of Section 13 is an order of substance and moment to the parties and as a fair element of finality so as to be appealable under Section 22 of the Act. Such an order in the nature of things, is an order passed under the Act and would not find place in the enumeration of appealable orders given in Order 43 Rule 1 of the Code of Civil Procedure. On the strength of the aforesaid provision it cannot negatively be suggested that no appeal lay against such an order, for reasons which are obvious. Order 43 Rule I of the Civil Procedure Code could not in its sweep embrace an order of the nature and kind as of Ss. (5 of Section 13. This settles the first contention. With regard to the second one, it is noteworthy that the civil court which becomes seizin of the cause under the Act, has to bear in mind and apply the provisions of the Act. The civil court may not by itself be a creation of the Act but the Civil Procedure Code confer on it the jurisdiction to tryspecified causes under the Act. If it passes any decree or order after trial, it is a decree or order under the Act as passed by it. Understood in this light the order in question, as said before, was a matter of substance and moment and hence appealable to a court to which ordinarily lay appeals from original decrees and orders passed by the civil court.

(3.) It would be fair to the learned counsel for the appellant that we take note of a decision of this court in Gyan Chand v. Kunjbeharilal cited by him to support his case. The question of law that arose in that case was whether an application for special leave or an appeal by special leave to this court is an 'appeal' within the meaning of Section 13-A of the aforesaid Act as amended by the Rajasthan Ordinance No. 26 of 1975. This question has no relevance in the instant case.