LALJI TANDON Vs. UNION OFINDIA

JUDGEMENT

(1.) LALJI Tandon, the petitioner, is the landlord of bungalow No. 3, Circular Road, Allahabad. The aforesaid Bungalow was let out to the respondent No. 1 under a lease deed dated February 18, 1941. The lease deed recites that the premises was taken by the Union of India for the use and occupation of one Sardar Mohammad Sarwar Khan and his family. On May 23, 1973 the petitioner filed an application under Section 21 of U.P. Act No. 13 of 1972 for the eviction of the respondent No. 1, from the premises mentioned above on the ground that the same was required by the petitioner for his own use and occupation. In the application the petitioner also mentioned that the building in question was an old one and was in a dilapidated condition requiring substantial and extensive repairs and renovation of damaged portions and additional constructions. In the application the petitioner impleaded Union of India only as a respondent Union of India did not file any written statement and did not contest the application filed by the petitioner. The application was allowed on August 7, 1973. Soon thereafter respondent Nos. 4 to 7 filed an application dated August 23, 1973 for setting aside the order dated August 7, 1973, on the ground that the aforesaid respondents were the tenants of the aforesaid Bungalow but as the order under Section 21 had been obtained by the petitioner without impleading these respondents as parties, the same made by the Prescribed Authority on August 7, 1973 was liable to be vacated.

(2.) THE application was contested by the petitioner. A counter-affidavit it was filed on his behalf stating that the Bungalow in question was taken on rent by the Union of India on the basis of the lease deed dated February 18, 1941. The petitioner also alleged that neither Sardar Mohd. Umar Khan was the tenant of the property nor were the respondent Nos. 4 to 7. The application was allowed by the Prescribed Authority on January 3, 1974. Against the aforesaid order the petitioner preferred an appeal under Section 22 of U.P. Act No. 13 of 1972 before District Judge. The appeal was dismissed on September 17, 1974 by the learned Second Addl. District Julge with the finding that the appeal filed by the petitioner was incompetent as Section 22 under which the same had been filed did not provide for an appeal against an order setting aside an exparte judgment given under Section 21 of U.P. Act No. 13 of 1972. Hence the writ petition. The first question that is required to be considered in this petition is whether the appeal filed by the petitioner under Section 22 was maintainable. Section 22 provides that:

(3.) IT may be correct that the application made by the respondent Nos. 4 to 7 was one under rule 22 and that the same had been allowed by the Prescribed Authority but the order passed on this application cannot be treated as an order under Section 21 of the Act. Further even though rule 22 has been framed under Section 41 of the Act but this does not lend any support to the submission advanced on behalf of the petitioner. It would only mean that rule 22 is in consonance with the Act. But that does not convert an order passed on an application under rule 22 to be an order under Section 21 of the Act. Reliance was placed by counsel appearing the petitioners on a decision of the Supreme Court reported in Central Bank of India Ltd. v. Gokal Chand A.I.R. 1967 S.C. 799 where the Supreme Court laid down that an order of the Rent Controller refusing to set aside an ex parts order is subject to appeal to the Rent Control Tribunal. The facts of the case would reveal that Section 36(1) of the Delhi Rent Control Act provided for an appeal 'from every order to the Controller made under this Act to the Rent Control Tribunal'. It would be found that Section 38 (1) unlike Section 22 provided for an appeal against every order passed under that Act. Interpreting these words the Supreme Court held that they do not include interlocutory orders but covered those orders which affected some right or liability of any party. In this view of the matter the Supreme Court found that as an order refusing to set aside an ex parte order vitally affects the right of a litigant the same was subject to the appeal to the Rent Control Tribunal. Section 22 is, however, differently worded. It does not provide for an appeal from every order passed under Act No, 13 of 1972, therefore, the same has to be differently interpreted.