Onkar Nath vs Ved Viyas

R.S. Pathak, C.J.—This is a tenant''s revision petition against an order of the Appellate Authority, Kangra, declining to stay the hearing of the tenant''s appeal against an order of eviction.

There is a house situated in the town of Chamba. Several years ago, it was declared evacuee property. The Petitioner became a tenant in the house. Subsequently, the house was purchased by one Gurbachan Singh. Thereafter, Gurbachan Singh sold it to the Respondent. The Respondent then applied u/s 13 of the East Punjab Urban Rent Restriction Act to the Controller for the eviction of the Petitioner. The application was allowed and the Petitioner was directed to put the Respondent in possession. The Petitioner appealed to the Appellate Authority, Kangra, against the eviction order and the appeal is pending.

Meanwhile, the Petitioner filed a suit against the Respondent for pre-emption in respect of the house. The learned Senior Subordinate Judge, Chamba dismissed the suit. This led to an appeal, which is pending in this Court.

On December 30, 1971 the Petitioner applied to the Appellate Authority, Kangra, for an order staying the proceedings in the appeal against the eviction order. It appears, however, that on December 6, 1972, counsel for the Petitioner appeared before the Appellate Authority and stated that the stay application was not pressed. The stay application was dismissed accordingly. But on March 6, 1973 a fresh application was made by the Petitioner before the Appellate Authority alleging that counsel had no authority to make the statement which he did on December 6, 1972 and praying that a stay order may be passed in the appeal. By his order dated January 3, 1975 the Appellate Authority has dismissed that application.

The Petitioner now applies in revision against the order.

The impugned order of the Appellate Authority may be analysed briefly. He has rejected the plea of the Petitioner that the application was maintainable with reference to Section 151 of the Code of Civil Procedure, in the view that the Code as such did not apply to proceedings before the Controller or the Appellate Authority under the East Punjab Urban Rent Restriction Act except to the extent strictly specified in Section 16 of that Act. As Section 151 of the Code was not one of the provisions mentioned in Section 16 of the Act, he was of opinion that the application was not maintainable. The Appellate Authority has also observed that the Appellate Authority under the Act is a persona designata and not a court, and therefore the CPC cannot be invoked. The Appellate Authority has also said that as the earlier application dated December 30, 1971 was not pressed, a second application for the same relief could not be maintained.

Learned Counsel for the Petitioner urges that the several reasons which have found favour with the Appellate Authority for rejecting the application are erroneous. It seems to be unnecessary to express any opinion on the validity of those reasons, because to my mind the impugned order passed by the Appellate Authority can be sustained on another ground. It is clear that the Respondent is entitled to the benefit of the order u/s 13 of the East Punjab Urban Rent Restriction Act, and that order entities him to dispossess the Petitioner. In pursuing his rights under the order, the Respondent will be doing that which the law permits him to do. And that is so even if it has the effect of removing the very basis on which the claim to pre-emption is founded.

In Narain Singh and Anr. v. Waryam Singh and Ors. AIR 1921 Lah. 192 the Lahore High Court laid down that the law of pre-emption may be evaded by legal means, and there is therefore nothing illegal in effecting an exchange when the buyer apprehends that a sale effected in his favour would be pre-empted. The Supreme Court, in Bishan Singh and Others Vs. Khazan Singh and Another, has observed that "the right of pre-emption is ''a very weak right'' and could be defeated by all legitimate methods". As recently as in Radhakisan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Others, the Supreme Court expressed the view that there were no equities in favour of a pre-emptor, and that "to defeat law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means".

In deciding whether it should stay the hearing of the appeal pending before it, the Appellate Authority is bound to consider whether making such an order would not unreasonably obstruct the exercise of a legal right which belongs to the Respondent, and if he comes to that conclusion the proper course open to him is to refuse to stay. A party is not entitled to a stay order merely for the purpose of thereby keeping alive another proceeding where it is clear that but for the stay order the proceeding would be brought to an end by another by the legitimate exercise of a right or benefit recognised in him by law. The judicial process has never been intended for that purpose.

In the circumstances, there is good reason for holding that the application dated March 6, 1973 was rightly dismissed by the Appellate Authority.

The revision petition fails and is dismissed with costs.