Bant Singh Gill Vs. Shanti Devi &
Ors  INSC 51 (1 March 1967)
01/03/1967 BACHAWAT, R.S.
CITATION: 1967 AIR 1360 1967 SCR (3) 59
Delhi & Ajmer Rent Control Act, 1952 (38
of 1952) and Delhi Rent Control Act (59 of 1958)-Suit for ejectment filed under
1952 Act--Tenant's application under s. 50(2) of the 1958 Act claiming that
suit had abated-Application dismissed by trial court-Appeal filed under s. 34
of 1952 Act-Right of appeal whether governed by 1952 Act or 1958 Act-Effect of
57 of 1958 Act.
A suit for ejectment on the ground of failing
to pay arrears of rent was instituted against the appellant by the respondents
under the provisions of the Delhi & Ajmer Rent Control Act, 1952 on
February 27, 1958. On February 9, 1959 the Delhi Rent Control Act, 1958 came
into force and became applicable to the premises in question. On March 13, 1961
the appellant, relying on the provisions of s. 50(2) of the Act of 1958, filed
an application before the trial court requesting it to hold that the suit had
abated on the ground that the suit -related to premises the construction of
which had been completed after the 1st day of June 1951 but before the 9th day
of June 1955. The trial court, not satisfied that the premises was constructed
during the said period., rejected the application. An appeal purporting to be
under s. 34 of the 1952 Act was filed before the District Judge who held that
the order of the trial court was under the Act of 1958 so that no appeal lay.
The High Court dismissed the appellant's revision application. Appeal to this
Court was filed under Art. 136 of the Constitution.
HELD : (i) The saving clause of sub-s. (2) of
s. 57 makes it clear that the present suit which was pending under the Act of
1952 was to be continued and disposed of in accordance with the provisions of
that Act though tinder the first proviso the court deciding the suit was
required to have regard to the provisions of the Act of 1958. [62 E] Further
the second proviso to s. 57(2) of the Act of 1952 laid down that the provisions
for appeal under the Act of 1952 were to continue in force in respect of suits
and proceedings disposed of there under. Consequently the right of appeal
against the order continued to be governed by s.
34 of the Act of 1952. [62 G-H] However the
trial Judge had only decided a preliminary issue and the order not being a
final order was not appealable under s. 34 of the Act of 1952. [63 H] Central
Bank of India v. Gokal Chand,  1 S.C.R. 310, relied on Ram Charan Das v.
Hira Nand, A.I.R. 1945 Lah. 298, referred to.
(ii) The appellant's application was not one
under s. 33 of the Act of 1952 and the order disposing it of was not a final
order on that ground either. [64 C-D] It was open to the appellant to challenge
the correctness of the decision of the trial -court in the appeal against the
decree if passed against him. [64 E-F] 60
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2207 of 1966.
Appeal by special leave from the judgment and
order dated July 21, 1966 of the Punjab High Court Circuit Bench at Delhi in
Civil, Revision No. 319-D of 1965.
Pritam Singh Safeer, for the appellant.
S. P. Mahajan and Lily Thomas, for the
The Judgment of the Court was delivered by Bhargava,
J. A suit for ejectment on the ground of failing to pay arrears of rent was
instituted against the appellant, Bant Singh Gill, by the respondents under the
provisions of the Delhi and Ajmer Rent Control Act, 1952 (No. 38 of
1952)--hereinafter referred to as "the Act of 1952", on the 27th
February, 1958. On 9th February, 1959, the Delhi Rent Control Act, 1958 (No. 59
of 1958)-hereinafter referred to as "the Act of 1958", came into
force and became applicable to the premises which were the subject-matter of
the pending suit. On 13th March, 1961, the appellant, relying on the provisions
of s. 50(2) of the Act of 1958, filed an application before the trial Court
requesting it to hold that the suit had abated on the ground that the suit
related to premises the construction of which had been completed after the 1st
day of June, 195 1, but before the 9th day of June, 1955. The trial Court,
after taking into account the evidence, recorded a finding that the appellant
had failed to prove that the premises had been completed during this period
mentioned in s. 50(2) of the Act of 1958, and, consequently, rejected the
application and held that the suit was to proceed on merits. Against that
order, the appellant filed an appeal before the District Court which was heard
by the Additional Senior Sub-Judge exercising enhanced appellate powers in
Delhi. The appeal purported to be under s. 34 of the Act of 1952. The appellate
Court held that the order passed by the trial Court was not an order under the
Act of 1952, but an order under the Act of 1958, so that no appeal lay, and
dismissed the appeal on the ground of non-maintainability. The revision filed
by the appellant before the Circuit Bench of the High Court of Punjab at Delhi
failed, and the appellant has now come up to this Court by special leave in
It appears to us that both the first
appellate Court and the High Court committed an error in holding that no appeal
lay, as a result of their failure to notice the provisions of S.
57 of the Act of 1958. The suit, as
originally instituted, was clearly a case under s. 33 of the Act of 1952 which
is as follows :
"33. (1) Any civil Court in the State of
Delhi or Ajmer which has jurisdiction to hear and decide a suit for recovery of
possession of any premises shall have jurisdiction to hear and decide any case
under this Act relating to such premises if it has pecuniary jurisdiction and
is otherwise competent to hear and decide such a case under any law for the
time being in force.
(2) The value of any case under this Act, for
the purposes of the pecuniary jurisdiction of the Court, shall be determined by
the amount of rent which is or would be payable for a period of twelve months,
calculated ac- cording to the highest amount claimed in the case:
Provided that in the case of any proceeding
based on the certificate of the Controller under section 28, such value shall
be determined by the amount of rent which is or would be payable for -a period
of one month.
(3) If any question arises whether any suit,
application or other proceeding is a case under this Act, the question shall be
determined by the Court.
(4) For the purposes of this Chapter, a case
under this Act, includes any suit, application or other proceeding under this
Act and also includes any claim or question arising out of this Act or any of
its provisions, but does not include any proceeding which a Controller is
empowered to decide under Chapter IV." 61 Section 34 of that Act, which
confers the right of appeal to an aggrieved person against any decree or order
of a Court under that Act, runs as follows "34. (1) Any person aggrieved
by any decree or order of a court passed under this Act may, in such manner as
may be prescribed, prefer an appeal-- (a) to the court of the senior
subordinate judge, if any, where the value of the case does not exceed two
thousand rupees :
Provided that where there is no senior
subordinate judge, the appeal shall lie to the district judge;
(b) to the court of the district judge, where
the value of the case exceeds two thousand rupees but does not exceed ten
thousand rupees; and.
(c) to the High Court, where the value of the
case exceeds ten thousand rupees.
(2) No second appeal shall lie from any
decree or order passed in any case under this Act." It is correct that the
claim of the appellant was that the suit abated because of the applicability of
section 50(2) of the Act of 1958;
62 but, in view of the provisions of s. 57 of
that Act, it is clear that an order of abatement will be an order under the Act
of 1952 and not under the Act of 1958. Section 57 of the Act of 1958 reads :-
"57. (1) The Delhi and Ajmer Rent Control Act, 1952, in so far as it is
applicable to the Union territory of Delhi, is hereby repealed.
(2) Notwithstanding such repeal, all suits
and other proceedings under the said Act pending, at the commencement of this
Act, before any court or other authority shall be continued and disposed of in
accordance with the provisions of the said Act, as if the said Act had
continued in force and this Act had not been passed :
Provided that in any such suit or proceeding
for the fixation of standard rent or for the eviction of a tenant from any
premises to which section 54 does not apply, the court or other authority shall
have regard to the pro- visions of this Act:
Provided further that the provisions for
appeal under the said Act shall continue in force in respect of suits and
proceedings disposed of there under." The saving clause in sub-s. (2) of
s. 57 makes it clear that the present suit, which was pending under the Act of
1952, was to be continued and disposed of in accordance with the provisions of
that Act, though, under the first proviso, the court deciding the suit was
required to have regard to the provisions of the Act of 1958. Consequently,
when deciding the question whether that pending suit had abated or not, the
Court was still functioning as a court seized of jurisdiction under the Act of
1952 over the pending suit, though, in deciding that suit, the court had to
have regard to the provision contained in s. 50(2) of the Act of 1958.
In thus applying the provision of s. 50(2) of
the Act of 1958 to the suit pending before it, the Court was still acting under
the Act of 1952, and the order passed for abatement or refusing to abate the
suit and to continue its trial was an order under the Act of 1952 under which
the Court was still continuing to exercise its jurisdiction.
Further, the second provide to s. 57(2) of
the Act of 1958 laid down that the provisions for appeal under the Act of 1952
were to continue-in force in respect of suits and proceedings disposed of
thereunder. Consequently, the right of appeal against the order continued to be
governed by s.
34 of the Act of 1952, and the appeal was
wrongly dismissed by the Additional Senior Sub-Judge on the ground that no
appeal lay. The order of that Court as well as the revisional order of the High
Court were, therefore, incorrect.
63 However, when this appeal came up for
hearing before us, learned counsel for the respondents raised another point for
challenging the competency of the appeal that was filed against the order of
the trial Court. It was urged that the order, rejecting the application of the
appellant to record the abatement of the suit and directing continuance of the
suit, was not an order of such a nature against which an appeal could be filed
under s. 34 of the Act of 1952. The word "order" is used in S. 34
without any limitations, with the exception that it must be an order of a court
passed under the Act of 1952; but it is contended that this word cannot be
interpreted so widely as to include all interlocutory orders or other similar
orders passed in the course of the trial of a suit. This aspect came up for
consideration before this Court when interpreting S. 38(1) of the Act of 1958
in which also a provision for appeals has been made, and the language used is
very wide inasmuch as it is laid down that "an appeal shall lie from every
order of the Controller made under this Act........ The extent of this right of
appeal under S. 38(1) was considered by this Court in the Central Bank of India
Ltd. v. Gokal Chand(1) and it was held that "the object of S. 38(1) is to
give a right of appeal to a party aggrieved by some order which affects his
right or liability. In the context of S. 38(1), the words "every order of
the Controller made under this Act, though very wide, do not include
interlocutory orders, which are merely procedural and do not affect the rights
or liabilities of the parties." The principle was thus recognised that the
word "order" used in such context is not wide enough to include every
order, whatever be its nature, and particularly orders which only dispose of
interlocutory matters. In the case before us also, all that was done by the
application presented by the appellant on the 13th March, 1961, was to raise a
preliminary issue about the maintainability of the suit on the ground that the
suit had abated by virtue of s. 50(2) of the Act of 1958. The Court went into
that issue and decided it against the appellant.
If the decision had been in favour of the
appellant and the suit had been dismissed, no doubt there would have been a
final order in the suit having the effect of a decree (see the decision of the
Full Bench of the Lahore High Court in Ram Charan Das v. Hira Nand(2). On the
other hand, if, as in the present case, it is held that the suit has not abated
and its trial is to continue, there is no final order deciding the rights or
liabilities of the parties to the suit. The rights and liabilities have yet to
be decided after full trial has been gone through. The decision by the court is
only in the nature of a finding on a preliminary issue on which would depend
the maintainability of the suit.
Such a finding cannot be held to be an order
for purposes of s. 34 of the Act of 1952, and, consequently, (1) (1967] 1
(2) A.I.R. 1945 Lah, 298.
64 no appeal against such an order would be
maintainable. It was indicated by this Court in the case of the Central Bank of
India Ltd. (1) that, in such a case, it is open to the appellant to canvass the
error, defect, or irregularity, if any, in the order in an appeal from the
final order passed in the proceedings for eviction. In the present case also,
therefore, it is clearly open to the appellant to raise this plea of abatement
of the suit, if and when he files an appeal against a decree for eviction
passed by the trial Court.
Learned counsel for the appellant relied on
the language of sub-s. (4) of s. 33 of the Act of 1952 to urge that the
appellant's application, requesting the trial Court to record abatement of the
suit, should be held to be a case under s. 3 3 (1) of that Act, and the order,
rejecting that application, should be held to be, therefore, an order finally
disposing of that case. This submission made by learned counsel ignores the
nature of the application and the effect of the order made on it by the trial
Court. As we have indicated earlier, the application was in the nature of a
request to the court to decide a preliminary issue whether the suit had abated
or was still maintainable, and to dismiss the suit on recording the finding
that it had abated. The application was, therefore, one raising a preliminary
issue as to the maintainability of the suit;
and, in fact, the request for raising the
issue was allowed by the trial Court by going into that issue and recording a
finding. On that finding, the suit was clearly maintainable. Such a finding on
a preliminary issue, which relates to the maintainability of a suit, is not an
order of a nature against which an appeal can lie. As we have indicated above,
the only remedy available to the appellant was, and still is, to challenge the
correctness of the decision of the trial Court in the appeal against the
decree, if passed against him.
The appeal, consequently, fails and is
dismissed with costs.
G.C Appeal dismissed (1)  1 S.C.R. 310.