SURINDER KAUR Vs. MOHINDER BAHADUR SINGH

JUDGEMENT

(1.) This revision petition by a landlady is directed against two orders dated July 5, 1977 and Aug. 2, 1977 made by the Controller under the Himachal Pradesh Urban Rent Control Act.

(2.) The petitioner applied for the ejectment of the respondent, who was her tenant in set No. 2, Adda Villa, Lower Kainthu, Simla. The Controller. Simla, made an ex parte order dated Oct. 16, 1976 directing the ejectment of the respondent. The respondent applied on Nov. 29, 1976 before the Controller for setting aside the order on the ground that he had not been served with notice of the ejectment petition. He also filed an appeal against the ejectment order. That appeal was dismissed by the Appellate Authority on June 7, 1977 as barred by time. In the application before the Controller for setting aside the ejectment order, the petitioner raised the objection that the application could not proceed as the appeal against that very order had been disposed of and the order must be deemed to have merged into the appellate order. The objection was overruled by the Controller by his order dated July 5, 1977. Subsequently, he made an order on Aug. 2, 1977 allowing the application on the merits and setting aside the ex parte order of ejectment. This revision is directed against the order dated July 5, 1977 and Aug. 2, 1977.

(3.) Learned counsel for the petitioner contends that the order setting aside the ex parte ejectment order was incompetent because the ejectment order itself had merged in the appellate order. The contention is sound and must be accepted. There can be no doubt that an appeal, although barred by time, is nonetheless an appeal in the eye of law, and an order dismissing the appeal as barred by time is an order passed in the appeal. That was laid down by the Supreme Court in Mela Ram & Sons v. Commr. of Income tax, Punjab. AIR 1956 SC 367. Therefore, although the appeal was dismissed as time-barred by the Appellate Authority it must be taken as affirming the ejectment order made by the Controller. See Banwari Lal Bhoid v. P. Neelkantham AIR 1965 Orissa 102. In consequence, the ejectment order must be deemed to have merged into the appellate order. Therefore, in law there was no ejectment order on which the application before the Controller could act. The order made by the Controller on July 5, 1977 is erroneous. And his further order dated Aug. 2, 1977 setting aside the ejectment order must be held to be without jurisdiction.