G.S. Lal, J. - (1.) THIS Civil Revision is directed against an order of Munsif North Lucknow by which he dismissed a restoration application of the Applicant Shahabuddin for setting aside an order passed Under Section 7 -B(5) of UP (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter to be referred to as 'the Act'). The application was dismissed on a preliminary objection that the provisions of Order IX, Rule 13, Code of Civil Procedure, did not apply and the application was not maintainable.
(2.) LEARNED Counsel for both sides have been heard by me. It is beyond controversy presently that in acting under provision of Section 7 -B of the Act the Munsif functions as a Civil Court. The provisions of the Code of Civil Procedure will therefore apply in so far as the application of the whole or any of those provisions is not barred expressly or impliedly by making special provisions in the section or the Act. Section 7 -B of the Act does lay down how the Munsif will proceed when he receives an application under that section. Those provisions, however, go no further than prescribing the steps which are to be taken and the orders which are to be passed and carried out upon the filing of an application. It cannot be said, therefore, that the section contains the provisions in respect of all matters which may possibly arise in dealing with an application under the section or after the Court has passed orders on such an application. If a notice required under the section to be issued is taken by the Court to be served whereas actually there has been no service or fraud in service, there is no provision in the section to deal with a matter of this nature. Section 141 of the Code of Civil Procedure lays down that 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. The learned Munsif who passed the impugned order considered the question whether the provisions relating to restoration would be made applicable to proceedings Under Section 7 -B of the Act, having regard to the peculiar nature of the provisions in that section. Under the section when an order under Sub -section (5) of Section 7 -B has been passed directing the tenant to be evicted from the accommodation and to pay the costs of the application, a copy of the said order is required by Sub -section (6) to be forwarded to the District Magistrate for carrying out the same and the District Magistrate is thereupon required to cause the tenant to be evicted from the accommodation. The learned Munsif pointed to the difficulty which would arise after the order had been sent to the District Magistrate and he had caused the tenant to be evicted, because there is no provision in the section to direct the District Magistrate to restore possession. According to the learned Munsif, such a contingency was never contemplated by the Act. The fallacy lies in thinking that Section 7 -B is meant to be exhaustive and no provisions of the Code of Civil Procedure can apply. The difficulties sought to be avoided by holding such a view bear no comparison with those which may arise from that view. A person may never have received notice Under Section 7 -B and an order may be passed against him Under Sub -section (5) and carried out Under Sub -section (6) of that section and if the view taken by the learned Munsif is to prevail, there will be no remedy for the tenant. In fact, on that reasoning this Court too will have no power to revise an erroneous or illegal order of ejectment Under Section 7 -B if before the tenant had occasion to approach this Court he had been ejected. I do not see any difficulty in the application of Order IX, Rule 13, Code of Civil Procedure, to a case where the Court feels satisfied that the tenant has really no knowledge of the proceedings. If an order for ejectment is set aside there will be a case for restitution. Section 144, Code of Civil Procedure gives power to a Court, for the purposes of restitution, to make any orders which are properly consequential on variation or reversal in a decree or order in pursuance of a situation that has been created and which requires restitution. The Court can pass an order for restitution, that is to say, for restoration of possession to the tenant and the District Magistrate who has only acted in pursuance of an order of ejectment of the Court will be bound to carry out the restoration on an order having the sanction of Section 144 Code of Civil Procedure, where the order itself in pursuance of which he acted no longer exists and the causing of ejectment of the tenant becomes unjustified.
(3.) LEARNED Counsel for the Applicant has cited before me a Single judge decision of this Court in Edward v. Mrs. D. Kapoor Writ Petition No. 69 of 1958 decided on 29 -10 -1959. There the Munsif who had passed an order of ejectment Under Section 7 -B had set aside that order and restored the proceedings Under Section 7 -B. The landlord came in writ petition before this Court and Mootham, C.J. dismissed the writ petition holding that the Munsif had the power to set aside the order exercising inherent powers Under Section 151, Code of Civil Procedure. The learned Judge had no occasion to consider the question of the applicability of Order IX, Rule 13, Code of Civil Procedure, by virtue of the provisions of Section 141, Code of Civil Procedure and therefore, it appears he referred to the inherent powers of the Court which, of course, could be exercised still in a case of that nature even if Order IX, Rule 13 were held inapplicable. However, as pointed out above, there is no good ground for holding that the said rule will not apply.;