Kuldeep Sood vs Sandeep Sood & Anr.

“It is, therefore, most humbly and respectfully prayed that the suit of the plaintiff may kindly be decreed in favour of the plaintiff and against the defendants with costs as follows:

A) PRELIMINARY DECREE for partition of the share of the plaintiff and parties to the suit as recorded in the revenue record (i.e. recordofrights) in the suit properties/buildings with attaches spaces comprised in Kharsa No. 184, 185, 189, 162, 163, 167, 160, 161, 164, 165, 166, 167, situated in revenue Chak Nagar Parishad Rohru, Pratham Khasra No. 1417, 1423, 1424, 1443, 1444, 1446, 1447, 1414, 1413, 1451, 1428, 1452, 1442, 1460 situated in revenue Chak Nagar Parishad Rohru Dawitiya, Tehsil Rohru, District Shimla, H.P. as shown in jamabandi/misal haqiyat for the year 201516 , my be passed;

B) A FINAL DECREE be prepared in favour of the plaintiff and parties to the suit of the above detailed suit property and separate possession of the same be delivered to them;

C) Pass a decree to have a full and true account of all the moneys realized by defendants No. 1 & 2 from different tenants;

D) Directions to payment of the share of the plaintiff of money’s realized by the defendants 1 and 2;

E) Interest on the money’s found due to the plaintiff by way of damages at 9 percent per annum or at any other equitable rate, from the date of demand;

F) Interest from date of suit to date of payment at such rate as the ld. Court deems reasonable;

G) A decree for permanent prohibitory injunction restraining the defendants No. 1 & 2 from changing the nature of suit property/structures by raising constructions or any other manner whatsoever which amounts to changing the nature of the suit property, creating third party rights, creating charge, lien etc., over the suit property etc. either personally, through family members, agents, representatives, assignees etc. and also, from taking/realizing the rent executively from the tenants (proforma defendants) unless the receiver is appointed by the Ld. Court for which separate application is being filed and at the same time proforma defendants/tenants also should not make payment of the rent to the defendants 1 and 2 till the appointment of receiver.”

“24 (1)(b) Save as otherwise provided in this Act, any person aggrieved by an order passed by the Controller, except the orders for the recovery of possession made by the Controller in accordance with the procedure prescribed under section 16, may, within fifteen days from the date of such order or such longer period as the appellate authority may allow for reasons to be recorded in writing, prefer an appeal in writing to the appellate authority having jurisdiction. (In computing the period of fifteen days, the time taken to obtain a certified copy of the order appealed against shall be excluded).

“13.

The Legislature, in its wisdom, has used the term ‘in the Court of civil jurisdiction’ in Section 141 of the CPC. In view of the provisions of Section 141 of the CPC, now, the question, which requires to be determined, is about the fact, as to whether the Rent Controller or the Appellate Authority fall within the definition of ‘Court of civil jurisdiction’ or not.

14.

This question has been answered in negative, by the Full Bench of the Punjab and Haryana High Court, way back in the year 1949, in a case, titled as Pitman’s Shorthand Academy versus B. Lila Ram & Sons, reported in AIR 1950 P&H 181. Relevant paras17 to 21, of the judgment, are reproduced, as under:

“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 quasijudicialnature 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 pronouncementEnglish 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." Nonjudicial officers or indeed nonofficials 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, subs. (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 outset 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 wideranging 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 subDivisional 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.” (self emphasis supplied)

19.

Had the intention of the Legislature been to make the procedure, as contained in the CPC, applicable to the proceedings, under the Rent Control Act, before the Rent Controller, then, there would have no hesitation for the Legislature to apply the same, in clear terms, whereas, by way of Rule 12 of the Rent Control Rules, it has been provided that the Controller shall be guided by the principle of procedure, as laid down in the CPC.

20.

The proforma of the petition, under Rule 3 and subRule (3) to Rule 4 of the Rent Control Rules, has been prescribed, which has been prescribed, keeping in view the legislative intent to decide the petition, in a summary manner.

21.

The Rent Controller cannot proceed with the eviction petition, filed under Section 14 or Section 17 of the Rent Control Act, as per the procedure, prescribed under the CPC. The same is governed by Rule 5, which prescribes the verification, as per Order VI Rules 14 and 15 of the CPC. Similarly, by way of Rules 14 and 15 of the Rent Control Rules, procedure for filing the appeal and revision, has been prescribed.

22.

If the above Rules are seen, in the light of the provisions of the CPC, then, it can safely be held that the Legislature has provided a window, by way of Rule 12 of the Rent Control Rules, qua the applicability of the principle of procedure, which shall guide the Rent Controller, while deciding the eviction petition.”