L D ARORA Vs. SUSHILA DEVI

JUDGEMENT

(1.) States that the Appellate Authority was in error in coming to the conclusion that no appeal lay before it. Assuming that an appeal lies, the real question to be decided would be whether the order of the Rent Controller can be said to be erroneous.

(2.) The landlord sought ejectment of the petitioner on the ground of change of user of the premises from residential to non-residential as also on the ground of non-payment or rent. Since tender was made on the first date of hearing, the ground of non-payment probably disappeared. October 16, 1980 was fixed as the date for the filing of the written statement but the tenant did not file the written statement on that date and sought for an adjournment which was granted and the tenant was directed to file written statement by 30th Oct., 1980 on payment of Rs. 15 as costs. Soon after this order was passed, an application was filed by the tenant for directing the landlord to file the rent-note in Court. On Oct. 26, 1980, the tenant filed another application for review of the order dated 16th Oct., 1980 on the ground that the tenant should be asked to file written statement only after the landlord has filed the rent-note in court. A notice on the aforesaid application was given for 30th Oct., 1980 on that date, the court dismissed the application for review and since the tenant did not pay the costs of Rs.15 nor filed the written statement on that date, the defence of the tenant was struck off by the impugned order dated 21st Nov., 1980, in view of S. 35-B of the Code of Civil Procedure (hereinafter called the Code. It may be noted that the tenant had filed the written statement on 5th Nov., 1980 although without the permission of the Rent Controller.

(3.) Under S. 35-B of the Code, the order of the kind passed by the Rent Controller is clearly permissible as held by a Full Bench of this Court in Anand Parkash v. Bharat Bhushan Rai, (1981) 83 Punj LR 555 : (1981) 2 Rent LR 249 : (AIR 1981 Punj & Har 269). The discretion under S. 35-B of the Code has been exercised by the Rent Controller and it has not been shown how the discretion exercised is palpably erroneous in law calling for interference either in appeal or revision by this Court. Faced with this situation, Mr. Sarin urges that S. 35-B of the Code is not applicable to the proceedings before the Rent Controller because u/s 16 of the East Punjab Urban Rent Restriction Act, 1949, as enforced in Chandigarh, the Rent Controller has the same powers of summoning and enforcing the attendance of the witnesses and compelling the production of witness as are vested under the Code and as such Section 35-B of the Code is not applicable in proceedings before the Rent Controller. Mr. Sarin is right, Section 35-B is not applicable as it is but the Rent Controller is a persona designata and is entitled to follow any procedure which in law can be termed to be either reasonably correct or can promote justice. S. 35-B is contained in Code which regulates the procedure of civil courts and it is open to the Rent Controller to follow a procedure laid down in any of the statutes for his guidance. Under the circumstances, even if he has followed something written in Section 35-B of the Coded to regulate his procedure, it cannot be held that he has exceeded his jurisdiction.