SHAHABUDDIN Vs. SMT. NAYAN KUMARI DEVI AND ANOTHER

JUDGEMENT

(1.) THIS Civil Revision is directed against an order of Munsif North Lucknow by which he dismissed a restoration application of the Applicant Shahabuddin for setting aside an order passed Under Section 7 -B(5) of UP (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter to be referred to as 'the Act'). The application was dismissed on a preliminary objection that the provisions of Order IX, Rule 13, Code of Civil Procedure, did not apply and the application was not maintainable.

(2.) LEARNED Counsel for both sides have been heard by me. It is beyond controversy presently that in acting under provision of Section 7 -B of the Act the Munsif functions as a Civil Court. The provisions of the Code of Civil Procedure will therefore apply in so far as the application of the whole or any of those provisions is not barred expressly or impliedly by making special provisions in the section or the Act. Section 7 -B of the Act does lay down how the Munsif will proceed when he receives an application under that section. Those provisions, however, go no further than prescribing the steps which are to be taken and the orders which are to be passed and carried out upon the filing of an application. It cannot be said, therefore, that the section contains the provisions in respect of all matters which may possibly arise in dealing with an application under the section or after the Court has passed orders on such an application. If a notice required under the section to be issued is taken by the Court to be served whereas actually there has been no service or fraud in service, there is no provision in the section to deal with a matter of this nature.

(3.) LEARNED Counsel for the Applicant has cited before me a Single judge decision of this Court in Edward v. Mrs. D. Kapoor Writ Petition No. 69 of 1958 decided on 29 -10 -1959. There the Munsif who had passed an order of ejectment Under Section 7 -B had set aside that order and restored the proceedings Under Section 7 -B. The landlord came in writ petition before this Court and Mootham, C.J. dismissed the writ petition holding that the Munsif had the power to set aside the order exercising inherent powers Under Section 151, Code of Civil Procedure. The learned Judge had no occasion to consider the question of the applicability of Order IX, Rule 13, Code of Civil Procedure, by virtue of the provisions of Section 141, Code of Civil Procedure and therefore, it appears he referred to the inherent powers of the Court which, of course, could be exercised still in a case of that nature even if Order IX, Rule 13 were held inapplicable. However, as pointed out above, there is no good ground for holding that the said rule will not apply.