A. Banerji, J. - (1.) THIS is a tenant's petition for setting aside an order passed by the Appellate Authority dismissing the appeal in default and rejecting the application to restore the appeal to its original number in a proceeding under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act. The principal contention raised on behalf of the petitioner is that the order passed by the Prescribed Authority was a nullity as he had no jurisdiction to decide the application under section 21 of the Act and the Appellate Authority committed a manifest error of law in dismissing the appeal for default and in refusing to restore the appeal to its original number.
(2.) IT will be relevant to mention a few essential facts. The dispute relates to a ground floor of a house of which the opposite party no. 3 is the owner and the petitioner the tenant. The opposite party no. 3, hereinafter referred to as the landlord purchased the property on 4th November, 1966. He filed a suit in the year 1967 against the petitioner for arrears of rent and ejectment from the house in dispute. This suit was dismissed by the Munsif but was allowed by the first appellate court. Thereupon a second appeal no. 261 of 1971 was filed in this court which was allowed on the 29th July, 1974. IT was held in the second appeal that since the tenant had deposited under Sec. 7-C of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 a sum greater than that was due within time there was no default and as such the suit merited to be dismissed. It appears that the landlord had filed an application under Sec. 21 of the Act on the 30th March, 1974 before the Prescribed Authority, Sri Jai Krishan Paliwal. The petitioner sought to raise a dispute in this Court that the application was not filed on the 30th of March, 1974 but was filed sometime in November, 1974. His contention was that he was served with a notice dated 6th December, 1974 fixing the 23rd December, 1974. He had filed his written statement on 31st January, 1975 and had taken up a plea in paragraph 19 thereof that there was no cause of action for the landlord to move the application and that the court had no jurisdiction to hear the said petition. The Prescribed Authority by his order dated 5th May, 1975 allowed the application of the landlord and ordered for the ejectment of the petitioner. The petitioner had thereafter filed an appeal before the District Judge, Moradabad. The appeal came up for hearing before the Opposite Party no. 1 Fifth Additional District and Sessions Judge, Moradabad. The petitioner thereafter sought to get the appeal transferred from his court and with this intent moved a transfer application before the District Judge. This transfer application was ultimately not pressed and was dismissed. It is said by the petitioner that the District Judge orally suggested to the petitioner to move a transfer application before the Opposite Party no. 1. A transfer application was thereafter moved before the opposite party No. 1. It was rejected on the 18th February, 1976. Thereupon an application was moved for time to bring stay order. This application too was rejected the same day. The petitioner was thereafter directed to proceed with the case. He sought an opportunity to call his counsel. However, neither he nor the counsel turned up and the appeal was ultimately dismissed for default by the Opposite Party no. 1. A restoration application was moved by the petitioner but this application was rejected on the 5th of May, 1976. The Opposite Party no. 1 observed that the petitioner adopted delaying tactics. He further observed that the petitioner was not prevented from any sufficient cause for appearing when the appeal was called out for hearing. Aggrieved by the above orders the petitioner has come up to this Court in the writ petition. I have heard the learned counsel for the parties and perused the material on record. I had also sent for the original record of the case before the Prescribed Authority as well as the register of the institution of cases and the Peshi Bahi.
(3.) LEARNED counsel for the petitioner contended that the application under Section 21 of the Act was not made on the 30th of March, 1974 but was made sometime in November 1974 so as to escape the consequences of lack of jurisdiction brought about by the new Code of Criminal Procedure which came in force on the 1st of April, 1974. Shri Jai Krishna Paliwal, the then Prescribed Authority being an Executive Magistrate ceased to be a Prescribed Authority and had no jurisdiction to decide the application under Sec. 21 of the Act. It was further contended that Sri J. K. Paliwal ceased to be a Prescribed Authority under the Act for the Chandausi area where the disputed premises were situate. LEARNED counsel for the landlord, however, contended that the application had been made on the 30th of March, 1974 and that Shri J. K. Paliwal was competent and had jurisdiction to decide the petition. In any event his order having been confirmed by the Additional District Judge on appeal had merged in the later order and could not be called in question any further. LEARNED counsel for the petitioner in reply contended that the doctrine of merger would have no application in a case where the appellate order was not on the merits. A dismissal in default was not an order on the merits and as such it could not be said that the appellate court had gone into the question of want of jurisdiction and had given a decision thereon. LEARNED counsel for the parties, in support of their respective contentions cited a number of decisions. Having considered the arguments of the learned counsels for the parlies the following points emerge for decision. 1. Whether the application under Sec. 21 of the Act was made by the landlord on the 30th of March, 1974 or in November, 1974 ? 2. Whether Shri J. K. Paliwal had no jurisdiction to decide the petition under Section 21 ? 3. Whether the doctrine of merger could be attracted in a case where the appellate court decided the appeal by default of appearance and without going into the merits of the case ? The petitioner's case was that the application under Sec. 21 of the Act was made some where in November, 1974 and not on 30th March, 1974. He relied on four circumstances. Firstly, that the notice of the application was served on the petitioner only on the 6th December, 1974 for appearance and reply on 23rd December. Secondly, that the entries in the order sheet and the institution register were ante dated. Thirdly, that there was no cause of action for the respondent landlord to move an application under Section 21 of the Act for there was already a decree standing in his favour on the 30th of March 1974 and which decree was only set aside by the judgment of the High Court on the 29th July, 1974. Fourthly, that a reference was made to the taking on lease of a premises by the petitioner's brother on the Dispensary Road in the application under Section 21 which was, however, struck off by the landlord and since a lease deed in respect of the aforesaid accommodation was executed only in October, 1974 the application under Section 21 could only have been made after that date. I have examined the institution register of cases of the Prescribed Authority. Serial no. 33 was a case instituted on the 30th of March 1974. Two cases were entered at serial no. 34-A and 34-B and both were entered after serial no. 33 and before serial no. 34. They are both dated 30th of March, 1974. It is possible that these entries were made subsequently but that would not lead to an inference that they were made in the month of November 1974. There is nothing to show that the entries in this register were made usually on the day the case was instituted. The mistake may have been discovered later and accordingly corrected. The order sheet of the case would show the real state of affairs. The order sheet shows the filing of the application on the 30th of March 1974 and it bears the signature of the Prescribed Authority. No case was taken before the Prescribed Authority and even before the appellate authority that the order sheet had been tampered with or that the entries in the register were subsequently interpolated or that the order sheet did not contain the signatures of the Prescribed Authority. These pleas are being taken for the first time in the writ petition and cannot, therefore, be entertained. The plea that the application was not made on the 30th March, 1974 or that the ordersheet and the institution register were tampered with and antedated is worthy unsustainable. The plea that there was no cause of action on the 30th of March 1974 is also not correct. It is, however, true that on the 30th March, 1974 there was a decree in favour of the landlord and that the second appeal was pending in the High Court but there was nothing to prevent the landlord from making an application u/Sec. 21 of the Act. There was no bar under the Act from making an application under Section 21. The procedure for the eviction of a tenant under the Act is a simpler one and saves time. Thus if a party took recourse to these proceedings under the Act, which were available to him, it cannot be said that he had no cause of action. The fourth circumstance has also no substance. The portion of paragraph 10 of the application which was struck off made no reference to any lease deed. The petitioner's case was that his brother had taken an accommodation on the Dispensary Road, Chandausi, by means of a lease deed executed in October 1974. There is no reference to any lease deed in the application, under Section 21, even if the struck off portion is also read. It was further urged that even the process fee was not paid until November, 1974. That is not material in view of the fact that the proceedings before the Prescribed Authority were ordered to remain stayed by the order of the District Magistrate from the 15th of May, onwards. I, therefore, conclude that the application under Section 21 of the Act had been made on the 30th of March, 1974 and not in November, 1974 as claimed by the petitioner.;