DAVINDER NATH Vs. MADAN GOPAL

JUDGEMENT

(1.) MADAN Gopal (hereinafter called the landlord) filed a petition for eviction of Davinder Nath petitioner (to whom I will refer in this order as the tenant) under S. 13 of the East Punjab Urban Rent Restriction Act, 1949, which was decreed ex parte in favour of the landlord on Sept. 6, 1973. During the pendency of the petition for eviction before the Civil Court, the Haryana Urban (Control of Rent and Eviction) Act (Haryana Act NO. 11 of 1974) was passed and enforced with effect from April 27, 1973. The learned Senior Subordinate Judge was correct in continuing the proceedings which were pending before him as Rent Controller at the time of coming into force of the principal Haryana Act because of the requirements of the proviso to S. 24 of that Act. The relevant portion of S. 24 is quoted below:--

(2.) TREATING the application for setting aside the ex parte decree as a "proceeding" under the Haryana Act the learned Senior Subordinate Judge transferred the case to the Sub--Divisional officer (Civil ). By his order dated May 27, 1976, the Special Collector, Rohtak, who was the Sub-Divisional Officer, returned the application in question to the tenant for presentation to the Court competent to hear it on the ground that he had no jurisdiction to deal with it and it had to be dealt with by the Senior Subordinate Judge, who had passed the order for eviction. When the case went back to the Senior Subordinate Judge, Rohtak, he, by his order dated June 3, 1976 (Annexure P. 4) held that every Subordinate Judge in Haryana had become functus officio so far as his powers as a Rent Controller are concerned on the appointment of Rent Controllers under the Principal Haryana Act. He did not agree with the view expressed by the Financial Commissioner in two earlier decisions that the application had to be dealt with by the Rent Controller under the Punjab Act. He, therefore, returned the application to the tenant for presentation to the officer concerned. It was in the above-mentioned that the tenant was forced to knock at the door of this Court to determine the correct legal forum in which his application for setting aside the ex parte order had to be dealt with and adjudicated upon.

(3.) IF the two orders of the Financial Commissioner are correct, the petition must, of course, succeed, but Mr. G. R. Majithia, the learned counsel for the landlord, has submitted that the Financial Commissioner was obviously in error in deciding the case according to what he thought the spirit of the provision instead of deciding it in accordance with the plain language of the section. He has submitted that if an application under O. 9, R. 13 of the Code of Civil Procedure, for setting aside an ex parte order is a "proceeding" it has to be transferred by the Civil Court to the executive authority under clause (a) of S. 20--A (1), if the same was pending at the time of coming into force of the Haryana Act, as the said provision (S. 20--A (1) (a)) starts with a non obstante clause and overrides proviso to S. 24. Looked at from a strictly technical point of view, there is some force in the submission of Mr. Majithia. He does not contest the proposition that if S. 20--A had not been enacted, the application for setting aside the ex parte decree which had been filed before the coming into force of the Amending Act had also to be adjudicated upon by the Senior Subordinate Judge and very appeal or revision against the same had also to go to the District Judge and the High Court. His emphasis, however, is on the fact that S. 20--A (1) (a) was enacted as an exception to the rule contained in the proviso to S. 24 and the same must be given effect to. What actually happened after the Principal Haryana Act came into force was that whereas pending cases had to be decided by the Civil Court, appeals or revisions against them had to go to the executive authorities. It was felt that in view of the separation of the judiciary from the executive, it may not be very salutary to allow orders and decisions of Civil Courts being set aside by executive authorities. It was to avoid this kind of a situation that the Amending Act was passed. The official statement of objects and reasons for passing the Amending Act are contained in the Haryana Urban (Control of Rent and Eviction) Amendment Bill, 1974 (published in the Haryana Government Gazette Extraordinary dated Jan. 2, 1974, at page 8) in the following words:-- "according to the provisions of the Haryana Urban (Control of Rent and Eviction) act, 1973, the Sub--Divisional Officers (Civil) and Deputy Commissioners have been appointed as Rent Controllers and appellate authority. Certain difficulties are being experienced in the disposal of the proceedings pending before the date of enforcement of the said Act, i. e. , 27th April, 1973. The Punjab and Haryana High Court has drawn pointed attention in this behalf observing that it does not seem desirable on account of the separation of the Judiciary from the Executive that the appeals and revisions against the decision of Judicial Officers in respect of pending cases should be filed before or decided by the Executive Authorities. The bill seeks to tide over these difficulties and to provide for these objects. " Once the objects and reasons for passing the Amending Act are kept in view, which is legally permissible, it is clear that the only object of enacting S. 20-A was that orders passed by Civil Courts are not subjected to the scrutiny of executive authorities. The two decisions of the Financial Commissioner, Haryana, are consistent with the scheme of the Amending Act judged in the light of the statement of objects and reasons for introducing the Bill which became the Amending Act.