Jatinder Singh Kukreja vs Narinder Singh Sood & Anr.

“It is, therefore, respectfully prayed that this application may kindly be allowed and the non-applicant/petitioner may kindly be ordered to answer the interrogatories which are being submitted along with the present application as per the Appendix ‘C’ Form No. 2 and he may also be required to produce the documents which are being sought for as per the Form No. 7 Appendix ‘C’ in the interest of justice.”

“1.

Whether the petitioner Shri Rupin Sood is running business of M/s Sood Agency and Sood Enterprises? In case, he is running the said business, since when the said business is being run and who is proprietor/partner of the same.

2.

Whether the petitioner is paying the sale tax/GST to the concerned Department with respect to the Firm M/s Sood Agency and Sood Enterprises? In case the sale tax/GST is being paid, since when, the same is being paid by Sh. Rupin Sood.

3.

What is the address of business given in the official records of the aforesaid business of Sh. Rupin Sood? How much tax is being paid by Sh. Rupin Sood qua the income from the aforesaid firms to the Income Tax Authorities.”

1.

Entire documents/returns of M/s Sood Agency and Sood Enterprises, especially the sale tax/GST returns being furnished for the last 10 years by Sh. Rupin Sood.

2.

Entire documents qua the income tax returns being filed by M/s Sood Agency and Sood Enterprises through Sh. Rupin Sood to the Income Tax Authorities may also be produced for inspection before the Court.”

Sections 25 and 26 of Rent Control Act

“25.

Power to summon and enforce attendance of witnesses – For the purposes of this Act, an appellate authority or a Controller appointed under this Act shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908).

26.

Execution of orders – Save as otherwise provided in section 31, any order made by the Controller or an order passed on appeal under this Act, shall be executable by the Controller as a decree of a civil court and for this purpose, the Controller shall have all the powers of a civil court.”

Rule 12 of Rent Control Rules

“12.

Procedure to be followed by Controller in disposing of an application -

(1)

When an application under the Act is presented to the Controller, he shall fix the date, time and place at which the enquiry in respect of the application will be held and send a notice alongwith a copy of the application to each respondent in Form-E appended to these rules.

(2)

The Controller shall give to the parties, a reasonable opportunity to state their case. He shall also record the evidence of the parties and witnesses examined on either side and in doing so and in fixing dates for the hearing of the parties and their witnesses, in adjourning the proceedings, and dismissing application for default or for other sufficient reasons the Controller shall be guided by the principles of the procedure as laid down in the Code of Civil Procedure, 1908.”

Section 141 of the CPC

141.

Miscellaneous proceedings. - The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

Explanation.— In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceedings under article 226 of the Constitution.”

“17.

The fact that there are decisions on both sides only goes to show that Judges, when confronted with the question whether a certain functionary is or is not a Court, consider it necessary to enquire into the matter and are not disposed to give a clear-cut answer immediately. It follows that they have universally recognised the proposition that a judicial officer, e. g., a Senior Subordinate Judge, a District Magistrate or a District Judge may be entrusted with duties of a judicial or quasi-judicial-nature and yet while performing these duties he does not act as a Court. Whether this is so or not will depend on the circumstances of each particular case, namely, what was the intention of the Legislature, to create a Court or appoint a persona designata: what is the nature of the duties entrusted to him: what are his powers and what procedure does he follow : does he, when discharging these special duties, act in every way as a Court of law would act : does he satisfy all the tests usually applied to Courts of law ?

18.

Once it is conceded that the Senior Subordinate Judge when acting as a Rent Controller or the District Judge when acting as the "Appellate authority" may or may not be acting as a civil Court an enquiry into the matter may be undertaken with complete freedom from bias and untrammelled by the prepossession that a judicial officer always acts as a civil Court, no matter what duties he performs.

19.

We may first attempt to formulate a definition of a civil Court, As far as I am aware no exhaustive definition of the term has been given in any judicial pronouncement-English or Indian, though various tests have been laid down whereby the true nature of a tribunal or authority may be determined. Broadly speaking, a Court is a place where justice is judicially administered. It is, however, clear that to say this much is not enough. Further analysis of the authorities shows that there are certain ingredients or essential attributes of a Court of law without any of which the tribunal or the authority ceases to enjoy the dignity or character of a Court. It is necessary, for instance, that judicial duties be entrusted to the tribunal by operation of law and not by voluntary submission by the parties to a dispute. An arbitrator, therefore, cannot be considered as a Court of law. Again, the tribunal must adjudicate upon civil disputes. To adjudicate means to give a definitive decision which is final until it is set aside or modified by an "Appellate Authority." It is not enough that the tribunal should give an opinion or act in an advisory capacity. Therefore, a Collector acting under S. 18, Land Acquisition Act who acts merely in an advisory capacity cannot be looked upon as a Court. Civil disputes again mean disputes whose nature is justiciable i.e., where the law of the land recognises the wrong and provide a remedy. The decision of non-judicial disputes cannot be treated as the administration of justice. Again, it is not enough that a Court of law should conduct its proceedings with fairness and impartiality. It must decide them according to the law of the land. It must not be affected by ulterior considerations or matters of executive policy. The Privy Council in Shell Co., Australia Ltd. v. Federal Commr. of Taxation, 1931 A. C. 275: (100 L. J. P. C. 55), held that a Board of Revenue was not a Court because it has to take into consideration matters of executive policy. In Manavala Goundan v. Kumarappa Reddy, 30 Mad. 326 (17 M. L. J. 313), a District Registrar was held not to be a Court because he did not administer justice judicially. Again, the rules of procedure which the Court of law must follow cannot be arbitrary. The procedure must be defined by statute or recognised by law. In the Municipal Corporation, Rangoon v. M. A. Shakur, 3 Rang. 560; (A. I. R. 1926 Rang. 25), a Full Bench of the Rengoon High Court held that the Chief Justice of the Rangoon Small Cause Court acting under S. 14, Rangoon Municipal Act could not be said to act as a Court because he was free to disregard the procedure laid down by the Civil Procedure Code. The Judge was entitled under S. 14, Rangoon Municipal Act to make such enquiry as he deemed necessary, and this departure from the ordinary rules of procedure as laid down by the Civil Procedure Code was considered sufficient to take him out of the category of a Court of law. In Manager, Spring Mills v. Ambekar, MANU/MH/0099/1947 : A.I.R. 1949 Bom. 188: (I.L.R (1948) Bom. 863), the authority acting under the Payment of Wages Act was held not to be a Court of law because (1) the procedure followed was not the procedure prescribed for a civil Court, and (2) the authority was treated as a special body set up to adjudicate upon civil rights and a distinction had been made between an application to the authority and a suit filed in a civil Court. Similarly, in Sudagar Choudhury v. Radha Raman, MANU/BH/0171/1948: A.I.R. 1949 Pat. 333, it was held that the District Judge when exercising jurisdiction under S. 78, Bihar and Orissa Village Administration Act was not a Court because (1) the District. Judge acted as a revisional Court although ordinarily it had no such power in respect of the Panchayat, and (2) the procedure which he could follow was unfettered. For instance, he could dispense with the rules of evidence and legal practitioners were not allowed to appear before him. In many cases it has been held that where the Presiding Officer of the Court rather than the Court is entrusted with special powers the Presiding Officer is to be looked upon as a persona, designata.

20.

A Court of law may, therefore, be defined as a tribunal dealing with and adjudicating upon civil disputes by operation of law in a judicial manner untroubled by ulterior considerations or matters of executive policy and observing certain definite rules of procedure which are either defined by statute or recognised by practice. It may be that a tribunal falling under this definition may yet not be a Court of law, but from the above discussion it will be clear that if any of these attributes are missing the tribunal certainly falls short of being a Court of law.

21.

Applying this test to the Controller and the "Appellate Authority" appointed under the Punjab Urban Rent Restriction Act we find that in the first place that Act does not entrust the functions of a Controller to the Senior Subordinate Judge as such, nor does it appoint the District Judge as the "Appellate Authority". The Act reserves to the Provincial Government the power of appointing Controllers and "Appellate Authorities." Non-judicial officers or indeed non-officials could easily have been appointed to function as Controllers and "Appellate Authorities" under the Act and in that case it could not have been said that the persons so appointed were civil Courts. It was by a subsequent notification that the Government appointed Senior Sub Judges as Rent Controllers and the District Judges as Appellate Authorities." In the second place, the procedure laid down is not the procedure laid down in the Civil Procedure Code except in two or three respects e. g., power has been given to the Rent Controller and the "Appellate Authority" to summon and examine witnesses. The orders made by the Controller or the 'Appellate Authority" can be enforced by a civil Court as if they were decrees of that Court. A modification of the principle of res judicata has also been introduced by the provisions of S. 14. None of the other incidents of a Court of law, however, obtain. The "Appellate Authority" in hearing an appeal from the decision of the Controller can make any further enquiry as it thinks fit either personally or through the Collector, and this contemplates even a private enquiry, should the "Appellate Authority" consider it necessary. Such a course would be wholly foreign to the duties of a Court of law. Again, it is to be noted that S. 15, sub-s. (4) makes a distinction between a Court of law and the Controller, for it says that the order of the Controller cannot be called in question in any Court of law. It is by itself sufficient to indicate that it was not the intention of the Legislature to create a Court of law but to appoint a persona designata who would be entrusted with certain specific functions. We thus find that many of the attributes of a Court of law are not to be found in the Controller or the "Appellate Authority".

“2. Definitions. -

In this Act, unless the context otherwise requires, -

(a)

… … …

(b)

… … …

(c)

“Controller” means any person who is appointed by the State Government to perform the functions of the Controller under this Act.”

3.

Now to appreciate the aforesaid legal question what calls for pointed attention at the out-set is the very nature of the tribunal exercising jurisdiction under the East Punjab Urban Rent Restriction Act, 1949(hereinafter called 'the Act'). Section 2(b) of the Act defining the word 'Controller' is in the following terms:--

"Controller" means any person who is appointed by the State Government to perform the function of a Controller under this Act." It would be manifest from the above that a wide-ranging power is given to the State government to appoint any person as a 'Controller' under the Act. Again reference to Section 15(1)(a) empowering the State Government to appoint the Appellate Authority is instructive:--

"The State Government may, by general or special order, by notification confer on such officers and authorities as they think fit, the powers of Appellate Authorities for the purposes of this Act, in such area or in such classes of cases as maybe specified in the order." This would again show the wide amplitude of the power vested in the State Government to name the Appellate Authorities under the Act.

4.

I may point out that considerable misapprehension and confusion sometimes arises in this context from the fact that usually the powers of the Controller under the Act have been conferred on subordinate Judges and the powers of Appellate Authority now are also specifically vested by notification in the District Judges. This fortuitous circumstance, however, should not lead one to the error of assuming that there by the controllers or the Appellate authorities became Civil courts as such. They retain their essential nature as tribunals or person designate under the special statute. It is instructive to remind oneself that under a sister statue, namely, Haryana Urban (Control of Rent and Eviction) Act, 1973, the powers of the controllers were at one time taken away from the subordinate Judges and vested in the sub-Divisional Officers and similarly the Deputy Commissioners of the districts were made the Appellate Authorities by a notification. By Section 15, Clause (6) of the Haryana urban (Control of Rent and Eviction) Act, 1973, the financial commissioner was designated by the statute itself as the revisional Authority to the exclusion of the High Court. Though there is recently a reversion to the old practice, the above circumstances rightly highlight the fact that if would be misleading to assume that the controllers or the Appellate authorities are necessarily Civil Courts.

5.

I deem it unnecessary to labour the point because within this jurisdiction, it has been settled law that the Controllers and the Appellate Authority under the Act are not even courts and are indeed persons designate. Way back it was authoritatively held by the Full Bench in Pitman's Shorthand Academy v. B. Lila Ram and Sons, AIR 1950 East Punj 181, as follows (at p. 188):--

".......With great respect, therefore, I must differ from the pronouncement of the Division Bench of the Lahore High Court and it is clear to me that the intention of the Legislature was to appoint persona designate to perform specific duties and it was further the intention that these persons would not be governed by the ordinary rules of procedure, nor would their decisions be subject to appeal or revision in a Court of law, and I must, therefore, hold that the Rent controller and "Appellate Authority" are not Courts of law subordinate to the High Court within the meaning of Section 115, Civil P. C." Apart from the afore said authoritative enunciation, reference is also called for to the provisions of Sections 16 and 17 of the Act, which are in the following terms:--

"16. Power to summon and enforce

attendance of witnesses.--For the purposes of this Act, an Appellate Authority or a Controller appointed under the act shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure, 1908."

"17.

Execution of Order.--Every order made under Section 10, or 13, and every order passed on appeal under Section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court." It would be thus manifest on principles also from the relevant statutory provisions that the Civil Procedure Code as such does not govern the proceedings under the Act except to the limited extent provided for under Ss. 16 and 17 thereof. Even by applying these provisions most liberally one cannot bring in either expressly or by necessary implication the rest of the provisions of the Civil Procedure Code. In particular it would be evident that the specific and detailed provisions of Order 23, Rule 1 of the Civil Procedure Code would not, therefore, be applicable proprio vigore to the rent jurisdiction. The controllers and the Appellate Authorities being persona designate are entitled to devise their own procedure within the confines prescribed by the Act itself.

6.

… … …

7.

… … …

8.

In fairness to Mr. J. R. Mittal, it may be mentioned that he had first sought to place reliance on Section 141 of the Code of Civil Procedure which is in the following terms:--

"Miscellaneous proceedings.--The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of Civil Jurisdiction." From the above it would be plain that the contention of the learned counsel is not well conceived. The aforesaid provision makes the procedure applicable to proceedings in any Court of civil jurisdiction. As has been already indicated above, it is well settled that the Rent Controllers are not Court stricto sensu, but are persona designate, as held by a string of judgments in this Court. Consequently section 141 of the Code of Civil Procedure cannot be invoked in this context.”

“16.

In Rent Rules, Rule 3 prescribes that application under Sections 4, 5, 6, 11, 14 and 15 shall be made in Form “A”, Rule 4 provides procedure for permission and recovery of possession under Section 17 of the Act by filing an application in Form “B” and Rule 8 provides filing of an application under Section 21 for deposit/payment of rent with Rent Controller in Form “D”. The manner, in which an application is to be made and 7 procedure to be followed by Controller in disposing of such application, has been provided in Rule 5 and Rule 12. Rule 14 provides procedure for filing appeal whereas Rule 15 provides manner in which application for revision is to be made under Section 24 of the Act.

17.

Scheme of Rent Act and Rent Rules not only impliedly but explicitly prohibits the applicability of all provisions of Civil Procedure Code, except those mentioned in the Act and Rules itself, during adjudication of application(s) under the Rent Act. It also specifies the causes and issues regarding which applications can be filed under the Rent Act. Therefore, provisions of Order 26 Rule 9 CPC are not applicable in a Rent Petition permitting either party to invoke the same.

18.

Rule 12 explicitly provides the procedure to be followed by Rent Controller in disposing of an application under the Rent Act. Rule 12(2) provides that the Controller shall give a reasonable opportunity to parties to state their case. Further that he shall record the evidence of parties and witnesses examined on either side, and while doing so, and also in fixing the date for hearing of parties and their witnesses, in adjourning the proceedings and dismissing the applications for default or for other sufficient reason, the Controller shall be guided by principles of procedure as laid down in CPC, meaning thereby that during adjudication of an application under the Rent Act, applicability of CPC is limited to the extent as provided under Rule 12(2) of Rent Rules. Applications which are permissible to be 8 filed under the Rent Act have been enumerated in Sections 4 to 6, 11, 14, 15, 17, 21 and procedure and performa, i.e. Forms “A”, “B” and “D”, for filing them have also been provided in and with Rules i.e. Rules 3, 4, and 8. Procedure for filing appeal and revision has also been prescribed under Rules. Therefore, intention of Legislation is very clear that CPC or its principles have not been made applicable in entirety to the proceedings under the Rent Act and special Act has been enacted for disposing of applications made therein as expeditiously as possible without adhering to cumbersome and lengthy procedure provided under CPC for adjudication of a regular suit. Had the intention of Legislation to make all provision of CPC applicable, there would not have been any necessity to mention applicability of CPC, its certain provisions and principles contained therein with special reference as provided in Sections 16(9), Section 25 and Section 26 of Rent Act as well as Rule 5 and Rule 12 of Rent Rules.”

“20.

Rent Act is a special enactment framed and made applicable to all urban areas of Himachal Pradesh. Rent Rules provide procedure for conducting the proceedings by Rent Controller under this Act. Civil Procedure Code is a general enactment prescribing procedure in civil litigations. No doubt proceedings under the Rent Act are also civil in nature but such proceedings are governed and regulated by Rent Act and Rules made thereunder.

21.

Rent Control Act is a complete Code in itself dealing with filing, adjudication and disposal of rent petitions under it. It provides determination of fair rent, revision of fair rent in certain cases, increase in fair rent, complaint against cutting off or withholding essential supply or services, eviction of tenants, recovery of immediate possession of premises, also recovery of possession for limited period and deposit of rent by tenant with the Controller as provided under Sections 4, 5, 6, 11, 14, 15, 17 and 21 of the Act.

22.

Section 24 provides an appeal against order passed by Rent Controller and Section 24(5) empowers the High Court to entertain revision petition, on application of any aggrieved party or on its own motion or calling and examining the record related to any order or proceedings taken under the Rent Act.

23.

In Rent Rules, Rule 3 prescribes that application under Sections 4, 5, 6, 11, 14 and 15 shall be made in Form “A”, Rule 4 provides procedure for permission and recovery of possession under Section 17 of the Act by filing an application in Form “B” and Rule 8 provides filing of an application under Section 21 for deposit/payment of rent with Rent Controller in Form “D”. The manner, in which an application is to be made and procedure to be followed by Controller in disposing of such application, has been provided in Rule 5 and Rule 12. Rule 14 provides procedure for filing appeal whereas Rule 15 provides manner in which application for revision is to be made under Section 24 of the Act.

24.

Scheme of Rent Act and Rent Rules not only impliedly but explicitly prohibits the applicability of all provisions of Civil Procedure Code, except those mentioned in the Act and Rules itself, during adjudication of application(s) under the Rent Act. It also specifies the causes and issues regarding which applications can be filed under the Rent Act. Therefore, as already held by Coordinate Bench of this Court in CMPMO No. 290 of 2018 neither provisions under Order 7 Rule 11 CPC nor similar prayer otherwise is permissible to be made during adjudication of rent petition.

25.

What cannot be done directly can also not be permitted to be done indirectly. Rule 12 explicitly provides the procedure to be followed by Rent Controller in disposing of an application under the Rent Act. Rule 12(2) provides that the Controller shall give a reasonable opportunity to parties to state their case. Further that he shall record the evidence of parties and witnesses examined on either side, and while doing so, and also in fixing the date for hearing of parties and their witnesses, in adjourning the proceedings and dismissing the applications for default or for other sufficient reason, the Controller shall be guided by principles of procedure as laid down in CPC, meaning thereby that during adjudication of an application under the Rent Act, applicability of CPC is limited to the extent as provided under Rule 12(2) of Rent Rules. Applications which are permissible to be filed under the Rent Act have been enumerated in Sections 4 to 6, 11, 14, 15, 17, 21 and procedure and performa, i.e. Forms “A”, “B” and “D”, for filing them have also been provided in and with Rules i.e. Rules 3, 4, and

8.

Procedure for filing appeal and revision has also been prescribed under Rules. Therefore, intention of Legislation is very clear that CPC or its principles have not been made applicable in entirety to the proceedings under the Rent Act and special Act has been enacted for disposing of applications made therein as expeditiously as possible without adhering to cumbersome and lengthy procedure provided under CPC for adjudication of a regular suit. Had the intention of Legislation to make all provision of CPC applicable, there would not have been any necessity to mention applicability of CPC, its certain provisions and principles contained therein with special reference as provided in Sections 16(9), Section 25 and Section 26 of Rent Act as well as Rule 5 and Rule 12 of Rent Rules. 26. Rent Act and Rules provide limited application of provisions of CPC or principles contained therein. Explanation in Section 9 provides that expression “legal representative” has the same meaning as assigned to it in the Code of Civil Procedure with further qualification that it includes also, in the case of joint family property the joint family of which the deceased was a member. Section 16(9) provides that Rent Controller may exercise the power of review in accordance with provisions of Order XLVI of CPC where no application for revision has been made to the High Court. Section 25 empowers the Rent Controller to summon and enforce the attendance of witnesses and to compel the production of evidence as the Court is empowered under CPC; Section 66 provides that orders passed under the Rent Act by Controller or Appellate Authority shall be executable by Controller as a decree of Civil Suit and for this purpose, Controller shall have all powers of Civil Court. Rule 5 provides the manner in which applications are to be made under the Rent Act providing that every such application shall be signed and verified in the manner prescribed under Rules 14 and 15 of Order 6 of CPC. Rule 12 speaks about applicability of principles of procedure as laid down in CPC with respect to recording the evidence of parties, examination of witnesses of either side, fixing the dates for hearing of parties and their witnesses, adjourning the proceedings and dismissing the applications for default or for other sufficient reasons. There is no other provision either in Rent Act or Rent Rules making applicability of the provisions of CPC or principles contained therein as a whole in proceedings under Rent Act. Even Rules 14 and 15 provide a procedure for filing appeal and revision under Section 24 of Rent Act independently without referring procedure prescribed in CPC.”