1972 Supreme(Del) 220

High Court Of Delhi
SUBHASH CHANDER - Appellant
Versus
REHMAT ULLAH - Respondent
SECOND APPEAL 151 of 1971
Decided On : 09/26/1972

The Controller has the power to set aside an ex parte order, on the principle underlying Order IX rule 13 Civil Procedure Code, and also in exercise of his inherent powers analogous to the powers of a civil court exercisable under section 151 Civil Procedure Code. The Limitation Act 1963 does not apply to proceedings before the Controller.

Headnote:

RENT CONTROL ACT - PRACTICE AND PROCEDURE - CONTROLLER - POWER TO SET ASIDE EX PARTE ORDER - INHERENT POWER - LIMITATION ACT - APPLICABILITY - CONTROLLER NOT A COURT - LIMITATION ACT NOT APPLICABLE.

Fact of the Case:

The appellant had commenced proceedings under the Delhi Rent Control Act 1958 for evicting the respondent from premises located in Pataudi House, Darya Ganj, Delhi. Twice, personal service was sought to be effected on the respondent. On both occasions the process server reported that he found the premises locked and was unable to trace the respondent. So, on 17th October 1967 the Additional Rent Controller, before whom the proceedings were pending, ordered substituted service on the respondent by publication in the newspaper “chitra” for 20th November 1967. The notice was duly published. On 20th November 1967, no one appeared for the respondent; hence the Controller ordered proceedings to continue ex parte, and adjourned the hearing to 24th November 1967. Ex pane evidence was recorded on the adjourned date, and an ex parte order for eviction was made on 1st December 1967. Then, on 7th December 1967, the appellant applied for and obtained a warrant for possession; and obtained possession of the premises on 16th December 1967. He claims to have inducted a new tenant into the premises on that very day.

Finding of the Court:

1. The Controller has the power to set aside an ex parte order, on the principle underlying Order IX rule 13 Civil Procedure Code, and also in exercise of his inherent powers analogous to the powers of a civil court exercisable under section 151 Civil Procedure Code. 2. The Limitation Act 1963 does not apply to proceedings before the Controller.

Issues: 1. Whether the expression “practice and procedure” of a Court of Small Causes used in section 37 (2) of the Delhi Rent Control Act 1958 includes the power of the Controller to set aside an ex parte order, on the principle underlying Order IX rule 13 Civil Procedure Code ? Alternatively, if this can be done by the Controller in exercise of his inherent powers analogous to the powers of a civil court exercisable under section 151 Civil Procedure Code?. 2. If the Controller has a power to set aside the ex parte order for eviction, then can he exercise such a power as an inherent power at any time or whether an application in this respect has to be made within the period of 30 days which is the limitation prescribed for such an application by Article 123 of the Schedule to the Limitation Act ? Or alternatively, whether the Limitation is governed by Article 137 of the Schedule of the said Act? Whether the expression “practice and procedure” would include not only the principles underlying the provisions in the Code of Civil Procedure but also the provisions of the Limitation Act regulating the steps to be taken under the Code of Civil Procedure? 3. The knowledge of the decree which is the starting point of the running of the limitation under Article 123 of the Schedule of the Limitation Act in the present case was first obtained by Shri Manmohan Nath, the factory manager of the tenant and later on by the tenant himself. Under section 229 of the Contract Act, the knowledge and information of the agent within the course of the business of agency would be attributable to the principal. While Manmohan Nath was in charge of all the affairs of the tenant including the management of his house, he did not have either a written authority to receive summons on his behalf or a written authority to appear for him in a court as required by Order III of the Civil Procedure Code. The question, therefore, is whether the knowledge of Manmohan Nath only that an order for eviction has been passed against his principal, the tenant, could be attributed to the tenant himself. Could it be said that in case such a difficulty it was the duty of the agent Manmohan Nath to communicate with his principal under section 214 of the Contract Act ?

Ratio Decidendi: 1. The words “practice and procedure” in section 37 (2) of the Delhi Rent Control Act 1958 include the power of the Controller to set aside an ex parte order, on the principle underlying Order IX rule 13 Civil Procedure Code, and also in exercise of his inherent powers analogous to the powers of a civil court exercisable under section 151 Civil Procedure Code. 2. The Limitation Act 1963 does not apply to proceedings before the Controller.

Final Decision: The questions REFERRED TO are answered accordingly. These appeals will now be placed before a Single Judge for being heard. The costs of the hearing before us will follow the result.