GHANSHYAM DASS ARORA Vs. DULI CHAND

JUDGEMENT

(1.) An interesting question regarding what is called the doctrine of 'merger' and the construction of sub-section (7) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter called the Act) arises in this case. The respondent Duli Chand and three other co-owners were formerly the landlords of the appellant-tenant. Their petition for the eviction of the tenant from the premises on the ground of bonafide necessity of the landlords to occupy the premises themselves succeeded both before the Controller and the Rent Control Tribunal under clause (e) of the proviso to Section 14(1) of the Act. The Controller had stated in the order of eviction in compliance with sub-section (7) of Section 14, that the tenant was to vacate the premises within six months from the date of the order of eviction. In the grounds of appeal before the Rent Control Tribunal the tenant did not plead that the Tribunal was either bound to give the tenant a further time of six months to vacate the premises from the date of the order disposing the first appeal or that the Tribunal had the discretion to do so and should give the tenant such further time. The appeal against the Controller's order was simply dismissed by the Tribunal with costs. In ground No. 6(b) of the second appeal before me the appellant has pleaded that the Tribunal did not properly construe sub-section (7) of Section 14 of the Act according to which it ought to have allowed time to the appellant to vacate the premises within six months from the date of the order of the Tribunal. Learned counsel for the appellant also argued that according to sub-section (7) of Section 14, the tenant would be entitled to have six months' time from the date of the order of this Court disposing of the second appeal to vacate the premises.

(2.) According to what is called the doctrine of merger, the order of the trial Court merges in the order passed by the an appellate Court in an appeal against the order of the trial Court with the effect that it is the appellate Order which is the operative order and not the order of the trial Court. This doctrine was enunciated by the Supreme Court in Election Commission of India v. Saka Venkata Subba Rao, 1953 SCR 1144, in the context of territorial jurisdiction. The High Court of Madras did not have the territorial jurisdiction under Article 226 of the Constitution as it was originally enacted and as it stood before its amendment in 1963 to challenge the order of the Election Commission which was located at Delhi inasmuch as the order of thee Election Tribunal, Madras had become merged in the order of thee Election Commission, Delhi. This decision was followed in Madan Gopal Rungta v. Secretary to Govt. Orissa, 1962 Supp3 SCR 906, and Collector of Customs, Calcutta v. East Indian Commercial Co. Ltd., 1963 2 SCR 563.

(3.) The doctrine was also asserted in a different context in Lakshmi Achi v. Kailasa Theyar, 1964 2 SCR 259, where the question was whether section 19(2) of the Madras Agriculturists Relief Act, 1938 (as amended) could apply to the decree passed by the High Court in appeal on March 25, 1942. Section 19(2) stated that "the provisions of sub-section (1) shall also apply to cases where, after the commencement of this Act, a Court has passed a decree for the repayment of a debt payable at such commencement." A preliminary decree in a mortgage suit was passed by the trial Court on 15.5.1937, namely, before the commencemnt of the Act of 1938. But the Supreme Court held that the "decree" referred to in section 19(2) would be the decree passed by the High Court in appeal against the preliminary decree on March 25, 1942 namely, after the commencement of the Act.