BANT SINGH GILL Vs. SHANTI DEVI

JUDGEMENT

(1.) A suit for ejectment on the ground of failing to pay arrears of rent was instituted against the appellant, Bant Singh Gill, by the respondents under the provisions of the Delhi and Ajmer Rent Control Act, 1952 (No. 38 of 1952) - hereinafter referred to as "the Act of 1952", on the 27th February, 1958. On 9th February, 1959, the Delhi Rent Control Act, 1958 (No. 59 of 1958) - hereinafter referred to as "the Act of 1952", came into force and became applicable to the premises which were the subject-matter of the pending suit. On 13th March, 1961, the appellant relying on the provisions of S. 50 (2) of the Act of 1958, filed an application before the trial Court requesting it to hold that the suit had abated on the ground that the suit related to premises the construction of which had been completed after the 1st day of June, 1951, but before the 9th day of June, 1955. The trial Court, after taking into account the evidence, recorded a finding that the appellant had failed to prove that the premises had been completed during this period mentioned in S. 50 (2) of the Act of 1958, and, consequently, rejected the application and held that the suit was to proceed on merits. Against that order, the appellant filed an appeal before the District Court which was heard by the Additional Senior Sub-Judge exercising enhanced appellate powers in Delhi. The appeal purported to be under S. 34 of the Act of 1952. The appellate Court held that the order passed by the trial Court was not an order under the Act of 1952, but an order under the Act of 1958 so that no appeal lay, and dismissed the appeal on the ground of non-maintainability. The revision filed by the appellant before the Circuit Bench of the High Court of Punjab at:Delhi failed, and the appellant has now come up to this Court by special leave in this appeal.

(2.) It appears to us that both the first appellate Court and the High Court committed, an error in holding that no appellant as a result of their failure to notice the provisions of S. 57 of the Act of 1958. The suit, as originally instituted was clearly a case under S. 33 of the Act of 1952 which is as follows:

(3.) However, when this appeal came up for hearing before us, learned counsel for the respondents raised another point for challenging the competency of the appeal that was filed against the order of the trial Court. It was urged that the order, rejecting the application of the appellant to record the abatement of the suit and directing continuance of the suit, was not an order of such a nature against which an appeal could be filed under S. 34 of the Act of 1952. The word "order" is used in S. 34 without any limitations, with the exception that it must be an order of a court passed under the Act of 1952; but it is contended that this word cannot be interpreted so widely as to include all interlocutory orders or other similar orders passed in the course of the trial of a suit. This aspect came up for consideration before this Court when interpreting S. 38 (1) of the Act of 1958 in which also a provision for appeals has been made, and the language used is very wide inasmuch as it is laid down that "an appeal shall lie from every order of the Controller made under this Act........" The extent of this right of appeal under S. 38(1) was considered by this Court in the Central Bank of India Ltd. vs. Gokal Chand, Civil Appeal No. 1339 of 1956, D/-12-9-1966:(reported in AIR 1967 SC 799) and it was held that "the object of S. 38 (1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of S. 38 (1), the words "every order of the Controller made under this Act", though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties". The principle was thus recognised that the word "orders" used in such context is not wide enough to include every order, whatever be its nature, and particularly orders which only dispose of interlocutory matters. In the case before us also, all that was done by the application presented by the appellant on the 13th March, 1961, was to raise a preliminary issue about the maintainability of the suit on the ground that the suit had abated by virtue of S. 50(2) of the Act of 1958. The Court went into that issue and decided it against the appellant. If the decision had been in favour of the appellant and the suit had been dismissed, no doubt there would have been a final order in the suit having the effect of a decree [see the decision of the Full Bench of the Lahore High Court in Ram Charan Das vs. Hora Nand, AIR 1945 Lah 298(FB)]. On the other hand, if, as in the present case, it is held that the suit has not abated and its trial is to continue, there is no final order deciding the rights or liabilities of the parties to the suit. The rights and liabilities have yet to be decided after full trial had been gone through. The decision by the court is only in the nature of a finding on a preliminary issue on which would depend the maintainability of the order for purposes of S. 34 of the Act of 1952, and, consequently, no appeal against such an order would be maintainable. It was indicated by this Court in the case of the Central Bank of India Ltd., Civil Appeal No. 1339 of 1996 D/-12-9-1966 (reported in AIR 1967 SC 799) (supra) that, in such a case, it is open to the appellant to canvass the error, defect, or irregularity, if any, in the order in an appeal from the final order passed in the proceedings for eviction. In the present case also, therefore, it is clearly open to the appellant to raise this plea of abatement of the suit, if and when he files an appeal against a decree for eviction passed by the trial Court.