- (1.) THIS is a reference by the learned District Judge, Jodhpur, and has arisen under the following circumstances.
(2.) MODHORAI who was the appellant in the district court is a tenant. Respondent Mohammed Umar is a landlord. MODHORAI filed an application before the Rent Controller of the former State of Jodhpur under sec. 3 of the Marwar House Rent Control Act, 1949 (No. XXV of 1949) (hereinafter referred as the Marwar Act) for fixation of a fair rent. The Rent Controller by his order dated 31st May, 1952 declined to interfere in the matter, as the property had meanwhile vested in the Custodian of Evacuee property. Madhorai went up in appeal to the District Judge who held by his order dated 9th July, 1952, that the appeal did not lie to himself but to the Collector and in that view the District Judge returned the appeal for presentation to the proper authority Madhorai then presented the appeal before the Collector. The latter how-ever, came to the conclusion by his order dated 22. 11. 52 that no appeal lay to him and that it lay to the District Judge instead. Madhorai then presented the appeal again before the District Judge, and the latter has made the present reference. The learned District Judge's view is that an appeal lay, against the Rent Controller's order to the Collector and not to the District Judge. A preliminary objection is raised on behalf of the respondent that this reference is incompetent, and the learned District Judge had no power to make it. Learned counsel in support of his argument has relied on the language of O. 49 r. 1 read with sec. 113 of the Code of Civil Procedure. Rule 1 of O. 46 is in these terms: - "where before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court. " It is argued that in order that the provisions of O. 49 r. 1 are attracted, the reference must arise out of a suit or an appeal and that such an appeal must also arise in the suit and further that the decree in the suit or in the appeal must not be subject to an appeal. We are not concerned with execution of a decree here and, therefore, that portion of the rule has no application whatever to the present case. It is further argued that apart from the above condition, the court making the reference must entertain a reasonable doubt on a point of law or usage. The argument on behalf of the respondent is that neither of these two conditions were fulfilled in the present case. It is said that the proceedings before the Rent Controller were not a "suit" at all and further that the learned District Judge having already held on an earlier occasion that no appeal lay to him could have no reasonable doubt as to the form of appeal in the present case after the Collector had returned the appeal for presentation to the proper court. I shall address myself in the first instance to the question whether the proceedings before the House Rent Controller were a "suit" or not. In this connection I may give a brief resume of the important provisions of Marwar Act. Sec. 2 defines "controller" as the "sub Divisional Officer having jurisdiction". It also defines the word "court" as a civil or criminal court as the case may be, having jurisdiction". Sec 3 provides that on a written complaint or otherwise where the Controller has reason to believe that the rent of any house within the local limits of his jurisdiction, is excessive, he shall after holding a summary inquiry in which he has afforded all parties concerned a reasonable opportunity of appearing in person or by representative or submitting a representation in writing, record a finding, and under sec. 4 he is required to determine the fair rent to be charged for the house. It is remarkable that the Controller is required by the act to make a "summary inquire" and then to record a "finding". Sec. 5 enables the Controller to determine fair rent of any particular house suo moto. Sec. 6 deals with re-determination of fair rent under certain circumstances such as improvements etc. I may next refer to sec. 11 which is important. Its effect is that any tenants shall be evicted from a house which he holds on rent except under the decree of a court on certain grounds which have been specified in the section. Then sec. 13 provides far appeals and says that "any person aggrieved by an order of the Controller may, within fifteen days from the date on which the order is communicated to him present an appeal in writing to the Deputy Commissioner of the District. Sec. 14 lays - "the Board of Revenue may call for and examine the record of any appeal decided by the Deputy Commissioner for the purpose of satisfying itself as to the legality or propriety of any decision or order made thereon, and as to the regularity of the proceedings held therein. " Sec. 15 then provides that - "if any person contravenes any provisions of this Act, he shall, on conviction by a Court, be punishable with imprisonment for a period which may extend to 3 years or with fine or with both". From a review of the provision of the Marwar Act as briefly outlined above, I have no hesitation in coming to the conclusion that the proceedings before the Rent Controller cannot be considered to be a "suit". The nature of the inquiry to be made in these proceedings, the procedure to be followed in ' making the inquiry,and the manner of appeal, all clearly point to the conclusion that the legislation never contemplated the 'controller' to be a court or the proceedings before him to be a "suit". It is true that by the time the Controller came to pass his final order in the case, that is, on the 31st May. 1952,the Rajas-than Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950) (hereinafter referred to as the Rajasthan Act) had come into force. The scheme of this Act is also to assign certain powers to the Controller and certain other powers to a court as such; but I do not consider it necessary to entry into any great detail in this connection, as sub-sec. (2) of sec. 27 of the Rajasthan Act clearly provides as follows: - "except as is otherwise provided by or under this Act all cases which are, at the commencement thereof in any area to which it has been extended under sec. 2, pending before a controller or any other authority appointed by or under any law in force therein immediately before such commencement, shall, notwithstanding anything to the contrary in this Act, be determined and disposed of by such Controller or authority in accordance with such law. " The provision clearly saves the jurisdiction of the Controller in pending proceedings, and directs, that such proceedings will be disposed of in accordance with the law which existed prior to the Rajasthan Act. Then sec. 22 provides for appeals under the said Act. By the first sub-section it is provided that - "an appeal shall lie to the Court of District Judge from every decree or order passed by a Court under this Act in a suit. . . . . . . . . ". Under sub-sec. (3) of the same section, it is further provided that - "any person aggrieved by an order of the Controller may, within fifteen days from the date of such order, appeal therefrom to such authority as the Government may from time to time appoint in that behalf. " It is clear, therefore, that an order passed by the Controller after the Rajasthan Act came into force was made appealable to such authority as the Government may appoint in that behalf,and that authority admittedly was the District Magistrate There is no doubt, therefore, that what was a mere order under the Marwar Act could not, by any stretch of reasoning be converted into a decree or order passed by a court under the Rajasthan Act The decision of the Controller remains nothing but an order and appeals were made to lie thereform to the authority appointed by the Government. In this state of affairs, I find no force whatsoever in the argument of learned counsel for Madhorai that the order of the Controller falls within the first subsection of sec. 22, and was appealable to the District Judge The next result of all that I have stated above is clearly this that the proceeding before the Rent Controller was not a "suit" and that the learned District Judge had no proper appeal before him, and certainly it was not an appeal in a suit which contemplated the passing of a decree as provided in rule 1 of O. 46 C. P. C. Reference may be made in support of this view to D. Tancred vs. D. N. Mullick (l ). It was held in that case that - "the court of the Rent Controller is in certain respects a Court of Civil jurisdiction but the inquiry before the Rent Controller is not a suit within the meaning of O. 46 r. 1 and therefore the Rent Controller cannot make a reference under this order" The case before me is, in my opinion weaker because the rent controller under the Marwar Act cannot be said to be a "court" at all. See Shivdayal vs. Naraindas (2 ). It was held there that, "there is no scope for holding that a Controller, either under the Marwar Act, or under the Rajasthan Act, was a court. It is true that the Controller was a quasi-judicial tribunal, but considering the scheme of the two Acts, there was a clear distinction between the Controller and the court, and we cannot accept the argument of learned counsel for the opposite parties that considering the functions assigned to the Controller, it must also be held to be a court. " In District Judge, Hoshangabad vs. Seth Shri Kisandas (3) which was a case under the Relief of Indebtedness Act, it was held that the proceedings in the Debt Relief Courts were not "suits" and as they were neither "suits" nor "appeals" nor proceedings in execution of a "decree" the provisions of O. 46 r. I C. P. C. were not attracted, and that the District Judge had no authority to make any reference to the High Court in such cases. For the reasons mentioned above. I hold that the proceedings before the District Judge were not of the character of a "suit" or an "appeal" in which the decree was not subject to appeal and, therefore, he had no power to make any reference to this Court. On this view I do not see any necessity of addressing myself to the question which was next raised on behalf of the respondent that the learned District Judge could really have no reasonable doubt in a matter in which he had come to a clear opinion already and on which ground also it was urged that the District Judge could have no power of reference in the present case. It was then argued on behalf of the appellant that even though the reference may be held to be incompetent, the whole case was before this Court and that I should correct the errors committed by the courts below in the exercise of my revisional jurisdiction. It is indeed greatly to be regretted that the appellant in this case has been thrown backward and forward in the matter of the filing of his appeal. It was held by the District Judge in the first instance that no appeal lay to him, and then the appellant filed an appeal before the Collector, and the latter sent it back holding that not appeal lay to him but to the District Judge. It is a hard case but be that as it may, I have come to the conclusion that in the circumstances of the present case, this Court is precluded from exercising its revi-sional jurisdiction under sec. 115 C. P. C. The reason is that the only order that can be revised is that of the Collector dated 22nd November, 1952, and I am of opinion that the Collector in a case like the present is a person designate and that in any case he is not a "court" subordinate to this Court. In these circumstances, I regret, I cannot afford any assistance to the petitioner as prayed for by him. For the foregoing reasons, I hold that the presence reference is incompetent and must on that score be rejected. In the special circumstances of the case I leave both parties to hear their own costs. The stay order passed by this Court pending the hearing of this reference is hereby vacated. .;