ZAKERIA SULEMAN Vs. COLLECTOR YEOTMAL

JUDGEMENT

(1.) THESE applications give rise to a common Question whether the Rent Controller under the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, has the power under Clause 13 to dismiss for default an application of landlord for obtaining permission to eject a tenant and whether he has the power to restore that application to file.

(2.) THE landlord in both these applications is the petitioner Haji Zakeria Suleman of Yeotmal. The tenant in S. C. A. 383 of 1960 is Fatmabi wife of Hasan Ali and in S. C. A. 384 of 1960 Abdul Hussain son of Haji Abdul Ali. The litigation between the parties has been going on since 11-10-1956 when the landlord originally presented his applications for permission to eject the tenant in both the cases. With the chequered history of this litigation we are not concerned. The matter had previously come before this Court in Special Civil Application No. 127 of 1959. The Landlord's applications had been dismissed without consideration of the merits and a Division Bench of this Court ordered that the applications for restoration filed by the landlord in each case shall go back to the Rent Controller, Yeotmal, to be disposed of according to law. Before the Division Bench a question was raised as to the power of the Rent Controller to restore, but the Division Bench kept that question open by observing "it is not necessary for purposes of these applications to express any opinion as to the tenability or otherwise of the applications filed by the landlords before the Rent Controller, Yeotmal, for restoration of their original applications which were dismissed for default".

(3.) WHEN the matter went back to the Rent Controller, the question whether he had the power to restore and therefore, also the initial power to dismiss for default was raised before him. The view which the Rent Controller took may he expressed in his own words: "however, I am of the opinion that all the Courts have inherent powers to dismiss any application if the applicant fails to appear on any fixed date because, in that case, it can be presumed that the (applicant) does not want to prosecute his application further. But, I further feel that, no Court would like to ignore the principles of equity. It any application is dismissed in default, it is quite likely that the applicant could not remain present tor unavoidable reasons or for other bona fide reasons. In such eases, he can certainly apply to the Court for setting aside the order of dismissal. And if the Court is satisfied about his bona fides, it has inherent powers to set aside the order of dismissal passed by it. " the tenant in each case went up in appeal to the Collector, Yeotmal and the appellate authority reversed the decision. The appellate authority held that the Rent Controller could not have dismissed the cases in default as there was no provision in the Rent Control Order for dismissal for default. By the same line of reasoning he also held that there was no provision for restoring to file a case dismissed in default. He also held that "the Rent Controller could not invoke inherent powers to set aside the order which indirectly would have the effect of reviewing his order for again there were no powers with him in the order ibid. " He therefore held in both the cases that "the order of dismissal in default, as also one setting it aside were, therefore, not in accordance with the provisions of the order ibid. "