SHRI KASHMERE LAL Vs. SMT. SHEILA DEVI

JUDGEMENT

(1.) There is a tenant's appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called "the Act)" against the order of the Tribunal dated 8th May, 1980 dismissing his appeal from the order dated 22nd March, 1980 of the Additional Controller, Delhi whereby the application filed by the appellant for production of licence was refused. The appellant is a tenant. The respondent filed an application for eviction under Section 14(1)(e) of the Act. It is pleaded that the premises were let to the respondent for residence but without the consent in writing of the petitioner and without any licence from the Municipal Corporation of Delhi, the respondent is using one portion of the said premises for operating a factory/workshop with lathes and workmen. In reply the tenant did not plead whether he ever applied for licence or he has a licence. There is only general denial. This is no denial. The evidence had been concluded and the case was being argued when the present application for additional evidence for filing the licence was filed. The Controller and the Tribunal dismissed the application on the ground that no case made out under Order 18 Rule 17A of the Code of Civil Procedure for the production of the evidence, and that the Municipal licence is not material to determine the real point in controversy between the parties because user of premise cannot decide the purpose of letting specially under the circumstances that there is a rent note alleged to have been filed by the landlord. The application was accordingly dismissed by the Controller and the appeal was dismissed by the Tribunal. It is contended by the learned counsel for the respondent-landlord that the order was not appealable and as such the appeal before the Tribunal was incompetent and for the same reasons a second appeal is not maintainable. The appeal lies before the Tribunal under Section 38 of the Act from every order of the Controller made under the Act. Similarly, the second appeal lies to this court under Section 39 of the Act provided it involves a substantial question of law. The question of interpretation of Section 38 of the Act arose in Central Bank of India Ltd. v. Gokal Chand,1967 DLT 1. The Supreme Court while interpreting Section 38(1) of the Act observed that 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. It was further observed that the Controller may pass many interlocutory orders such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses etc. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceedings but they do not affect any right or liability of the parties. The present application was purely an application for production of a municipal licence which has been obtained by the appellant. This case is completely covered by the said observation of Supreme Court in Section 38 of the Act. In these circumstances the appeal under Section 38 of the Act was not maintainable before the Tribunal.

(2.) The Tribunal however went into the merits of the case and came to the conclusion that the Controller rightly dismissed the appellant's application in exercise of its discretion. The Tribunal also dismissed the appellant's application. The impugned orders were passed in the exercise of jurisdiction by the Controller. Assuming for the sake of argument that the appeal was maintainable before the Rent Control Tribunal. The Tribunal also in its discretion came to the conclusion that there was no ground to allow the appellant to produce the alleged licence. So the next question is whether the second appeal itself is maintainable under Section 39 of the Act. If the Additional Rent Controller and the Tribunal have exercised their jurisdiction in a reasonable manner it appears to me that no substantial question of law is involved and no appeal is maintainable under Section 39 of the Act.

(3.) Lastly, the learned counsel for the appellant prayed that the second appeal under Section 39 of the Act be treated as a petition under Article 227 of the Constitution. I am afraid that his cannot be accepted. The Controller and the Tribunal in exercise of their discretion rejected the application. Admittedly the Controller had jurisdiction to entertain and decide the application rightly or wrongly. The application has been decided and there is no jurisdictional error and as such Article 227 of the Constitution is not attracted. The learned counsel for the appellant has argued on facts also and desired me to conclude that his rights are affected by the non-production of the licence in question. I do not go into the merits of this case on the ground that no appeal was maintainable under Section 39 of the Act and further on the ground that there is no substantial question of law involved in the second appeal. I see no ground to interfere with the order of the Controller and the Tribunal. The appeal is accordingly dismissed with costs. Counsel fee Rs. 200/-.