{"id":52967,"date":"1967-03-01T00:00:00","date_gmt":"1967-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bant-singh-gill-vs-shanti-devi-ors-on-1-march-1967"},"modified":"2016-12-24T21:19:53","modified_gmt":"2016-12-24T15:49:53","slug":"bant-singh-gill-vs-shanti-devi-ors-on-1-march-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bant-singh-gill-vs-shanti-devi-ors-on-1-march-1967","title":{"rendered":"Bant Singh Gill vs Shanti Devi & Ors on 1 March, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bant Singh Gill vs Shanti Devi & Ors on 1 March, 1967<\/div>\n
Equivalent citations: 1967 AIR 1360, \t\t 1967 SCR (3)\t 59<\/div>\n
Author: R Bachawat<\/div>\n
Bench: Bachawat, R.S.<\/div>\n
           PETITIONER:\nBANT SINGH GILL\n\n\tVs.\n\nRESPONDENT:\nSHANTI DEVI & ORS.\n\nDATE OF JUDGMENT:\n01\/03\/1967\n\nBENCH:\nBACHAWAT, R.S.\nBENCH:\nBACHAWAT, R.S.\nWANCHOO, K.N.\nBHARGAVA, VISHISHTHA\n\nCITATION:\n 1967 AIR 1360\t\t  1967 SCR  (3)\t 59\n\n\nACT:\nDelhi & Ajmer Rent Control Act, 1952 (38 of 1952) and  Delhi\nRent Control Act (59 of 1958)-Suit for ejectment filed under\n1952  Act--Tenant's application under s. 50(2) of  the\t1958\nAct  claiming that suit had abated-Application dismissed  by\ntrial  court-Appeal filed under s. 34 of 1952  Act-Right  of\nappeal whether governed by 1952 Act or 1958 Act-Effect of s.\n57 of 1958 Act.\n\n\n\nHEADNOTE:\nA suit for ejectment on the ground of failing to pay arrears\nof  rent  was  instituted  against  the\t appellant  by\t the\nrespondents  under the provisions of the Delhi & Ajmer\tRent\nControl Act, 1952 on February 27, 1958.\t On February 9, 1959\nthe Delhi Rent Control Act, 1958 came into force and  became\napplicable  to the premises in question.  On March 13,\t1961\nthe appellant, relying on the provisions of s. 50(2) of\t the\nAct  of\t 1958, filed an application before the\ttrial  court\nrequesting it to hold that the suit had abated on the ground\nthat the suit -related to premises the construction of which\nhad been completed after the 1st day of June 1951 but before\nthe  9th day of June 1955.  The trial court,  not  satisfied\nthat  the premises was constructed during the said  period.,\nrejected the application.  An appeal purporting to be  under\ns.  34 of the 1952 Act was filed before the  District  Judge\nwho held that the order of the trial court was under the Act\nof 1958 so that no appeal lay.\tThe High Court dismissed the\nappellant's revision application.  Appeal to this Court\t was\nfiled under Art. 136 of the Constitution.\nHELD : (i) The saving clause of sub-s. (2) of s. 57 makes it\nclear that the present suit which was pending under the\t Act\nof  1952 was to be continued and disposed of  in  accordance\nwith  the  provisions of that Act though  tinder  the  first\nproviso\t the  court deciding the suit was required  to\thave\nregard to the provisions of the Act of 1958. [62 E]\nFurther\t the second proviso to s. 57(2) of the Act  of\t1952\nlaid  down that the provisions for appeal under the  Act  of\n1952  were  to\tcontinue in force in respect  of  suits\t and\nproceedings disposed of thereunder.  Consequently the  right\nof  appeal against the order continued to be governed by  s.\n34 of the Act of 1952. [62 G-H]\n However  the  trial Judge had only  decided  a\t preliminary\nissue  and  the\t order\tnot being  a  final  order  was\t not\nappealable under s. 34 of the Act of 1952. [63 H]\nCentral\t Bank of India v. Gokal Chand,<\/a> [1967] 1 S.C.R.\t310,\nrelied on\nRam Charan Das v. Hira Nand, A.I.R. 1945 Lah. 298,  referred\nto.\n(ii) The appellant's application was not one under s. 33  of\nthe  Act  of 1952 and the order disposing it of\t was  not  a\nfinal order on that ground either. [64 C-D]\nIt was open to the appellant to challenge the correctness of\nthe  decision of the trial -court in the appeal against\t the\ndecree if passed against him. [64 E-F]\n60\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2207  of
\n1966.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nJuly  21,  1966 of the Punjab High Court  Circuit  Bench  at
\nDelhi in Civil, Revision No. 319-D of 1965.
\nPritam Singh Safeer, for the appellant.\n<\/p>\n
S. P. Mahajan and Lily Thomas, for the respondents.
\nThe Judgment of the Court was delivered by
\nBhargava,  J. A suit for ejectment on the ground of  failing
\nto pay arrears of rent was instituted against the appellant,
\nBant Singh Gill, by the respondents under the provisions  of
\nthe  Delhi  and\t Ajmer Rent Control Act,  1952\t(No.  38  of
\n1952)–hereinafter referred to as “the Act of 1952”, on\t the
\n27th February, 1958.  On 9th February, 1959, the Delhi\tRent
\nControl\t Act, 1958 (No. 59 of 1958)-hereinafter referred  to
\nas “the Act of 1958”, came into force and became  applicable
\nto the premises which were the subject-matter of the pending
\nsuit.\tOn 13th March, 1961, the appellant, relying  on\t the
\nprovisions  of\ts.  50(2)  of the  Act\tof  1958,  filed  an
\napplication  before  the trial Court requesting it  to\thold
\nthat the suit had abated on the ground that the suit related
\nto  premises  the construction of which had  been  completed
\nafter the 1st day of June, 195 1, but before the 9th day  of
\nJune, 1955.  The trial Court, after taking into account\t the
\nevidence,  recorded a finding that the appellant had  failed
\nto  prove that the premises had been completed\tduring\tthis
\nperiod\tmentioned  in  s. 50(2) of the\tAct  of\t 1958,\tand,
\nconsequently,  rejected\t the application and held  that\t the
\nsuit  was  to proceed on merits.  Against  that\t order,\t the
\nappellant  filed an appeal before the District\tCourt  which
\nwas  heard  by the Additional  Senior  Sub-Judge  exercising
\nenhanced appellate powers in Delhi.  The appeal purported to
\nbe under s. 34 of the Act of 1952.  The appellate Court held
\nthat  the order passed by the trial Court was not  an  order
\nunder  the Act of 1952, but an order under the Act of  1958,
\nso  that  no  appeal lay, and dismissed the  appeal  on\t the
\nground\tof non-maintainability.\t The revision filed  by\t the
\nappellant  before  the Circuit Bench of the  High  Court  of
\nPunjab at Delhi failed, and the appellant has now come up to
\nthis Court by special leave in this appeal.
\nIt appears to us that both the first appellate Court and the
\nHigh Court committed an error in holding that no appeal lay,
\nas a result of their failure to notice the provisions of  S.
\n57 of the Act of 1958.\t The suit, as originally instituted,
\nwas clearly a case under s.   33 of the Act of 1952 which is
\nas follows :\n<\/p>\n
\t      “33. (1) Any civil Court in the State of Delhi
\n\t      or  Ajmer which has jurisdiction to  hear\t and
\n\t      decide  a suit for recovery of  possession  of
\n\t      any premises shall have
\n\t      jurisdiction to hear and decide any case under
\n\t      this  Act relating to such premises if it\t has
\n\t      pecuniary\t  jurisdiction\tand   is   otherwise
\n\t      competent to hear and decide such a case under
\n\t      any law for the time being in force.
\n\t      (2)   The\t value of any case under  this\tAct,
\n\t      for the purposes of the pecuniary jurisdiction
\n\t      of  the  Court,  shall be\t determined  by\t the
\n\t      amount  of rent which is or would\t be  payable
\n\t      for a period of twelve months, calculated\t ac-
\n\t      cording  to the highest amount claimed in\t the
\n\t      case:\n<\/p><\/blockquote>\n
\t      Provided\tthat in the case of  any  proceeding
\n\t      based  on\t the certificate of  the  Controller
\n\t      under   section  28,  such  value\t  shall\t  be
\n\t      determined  by the amount of rent which is  or
\n\t      would be payable for -a period of one month.
\n\t      (3)   If any question arises whether any suit,
\n\t      application  or  other proceeding\t is  a\tcase
\n\t      under   this  Act,  the  question\t  shall\t  be
\n\t      determined by the Court.\n<\/p><\/blockquote>\n
\t      (4)   For the purposes of this Chapter, a case
\n\t      under this Act, includes any suit, application
\n\t      or  other proceeding under this Act  and\talso
\n\t      includes any claim or question arising out  of
\n\t      this  Act or any of its provisions,  but\tdoes
\n\t      not include any proceeding which a  Controller
\n\t      is empowered to decide under Chapter IV.”\n<\/p><\/blockquote>\n
\t      61<\/span><\/p>\n
Section 34 of that Act, which confers the right of appeal to
\nan  aggrieved person against any decree or order of a  Court
\nunder that Act, runs as follows
\n“34.  (1) Any person aggrieved by any decree or order  of  a
\ncourt  passed under this Act may, in such manner as  may  be
\nprescribed, prefer an appeal–\n<\/p>\n
(a)  to\t the court of the senior subordinate judge, if\tany,
\nwhere  the  value of the case does not exceed  two  thousand
\nrupees :\n<\/p>\n
Provided  that where there is no senior\t subordinate  judge,
\nthe appeal shall lie to the district judge;\n<\/p>\n
(b)  to the court of the district judge, where the value  of
\nthe case exceeds two thousand rupees but does not exceed ten
\nthousand rupees; and.\n<\/p>\n
(c)  to the High Court, where the value of the case  exceeds
\nten thousand rupees.\n<\/p>\n
(2)  No\t second\t appeal shall lie from any decree  or  order
\npassed in any case under this Act.”\n<\/p>\n
It  is correct that the claim of the appellant was that\t the
\nsuit abated because of the applicability of section 50(2) of
\nthe Act of 1958;\n<\/p>\n
62<\/span><\/p>\n
but,  in view of the provisions of s. 57 of that Act, it  is
\nclear that an order of abatement will be an order under\t the
\nAct  of 1952 and not under the Act of 1958.  Section  57  of
\nthe Act of 1958 reads :-\n<\/p>\n
\t      “57. (1) The Delhi and Ajmer Rent Control Act,
\n\t      1952,  in\t so far as it is applicable  to\t the
\n\t      Union territory of Delhi, is hereby repealed.
\n\t      (2)   Notwithstanding  such repeal, all  suits
\n\t      and  other  proceedings  under  the  said\t Act
\n\t      pending,\tat  the commencement  of  this\tAct,
\n\t      before  any court or other authority shall  be
\n\t      continued\t and disposed of in accordance\twith
\n\t      the provisions of the said Act, as if the said
\n\t      Act  had continued in force and this  Act\t had
\n\t      not been passed :\n<\/p><\/blockquote>\n
\t      Provided\tthat in any such suit or  proceeding
\n\t      for  the fixation of standard rent or for\t the
\n\t      eviction\tof  a tenant from  any\tpremises  to
\n\t      which section 54 does not apply, the court  or
\n\t      other authority shall have regard to the\tpro-
\n\t      visions of this Act:\n<\/p><\/blockquote>\n
\t      Provided\tfurther\t that  the  provisions\t for
\n\t      appeal  under the said Act shall\tcontinue  in
\n\t      force  in\t respect of  suits  and\t proceedings
\n\t      disposed of thereunder.”\n<\/p><\/blockquote>\n
The saving clause in sub-s. (2) of s. 57 makes it clear that
\nthe  present suit, which was pending under the Act of  1952,
\nwas  to be continued and disposed of in accordance with\t the
\nprovisions of that Act, though, under the first proviso, the
\ncourt  deciding the suit was required to have regard to\t the
\nprovisions of the Act of 1958.\tConsequently, when  deciding
\nthe  question whether that pending suit had abated  or\tnot,
\nthe  Court  was\t still\tfunctioning as\ta  court  seized  of
\njurisdiction  under the Act of 1952 over the  pending  suit,
\nthough, in deciding that suit, the court had to have  regard
\nto  the provision contained in s. 50(2) of the Act of  1958.
\nIn  thus  applying the provision of s. 50(2) of the  Act  of
\n1958  to  the suit pending before it, the  Court  was  still
\nacting\tunder  the  Act of 1952, and the  order\t passed\t for
\nabatement or refusing to abate the suit and to continue\t its
\ntrial  was  an order under the Act of 1952 under  which\t the
\nCourt  was  still continuing to exercise  its  jurisdiction.
\nFurther,  the second provide to s. 57(2) of the Act of\t1958
\nlaid  down that the provisions for appeal under the  Act  of
\n1952  were  to\tcontinue-in force in respect  of  suits\t and
\nproceedings disposed of thereunder.  Consequently, the right
\nof  appeal against the order continued to be governed by  s.
\n34 of the Act of 1952, and the appeal was wrongly  dismissed
\nby  the\t Additional Senior Sub-Judge on the ground  that  no
\nappeal\tlay.   The  order  of that  Court  as  well  as\t the
\nrevisional   order  of\tthe  High  Court  were,\t  therefore,
\nincorrect.\n<\/p>\n
63<\/span><\/p>\n
However,  when\tthis appeal came up for hearing\t before\t us,
\nlearned counsel for the respondents raised another point for
\nchallenging  the  competency of the appeal  that  was  filed
\nagainst the order of the trial Court.  It was urged that the
\norder, rejecting the application of the appellant to  record
\nthe  abatement of the suit and directing continuance of\t the
\nsuit,  was  not an order of such a nature against  which  an
\nappeal\tcould be filed under s. 34 of the Act of 1952.\t The
\nword “order” is used in S. 34 without any limitations,\twith
\nthe  exception\tthat it must be an order of a  court  passed
\nunder  the Act of 1952; but it is contended that  this\tword
\ncannot\t be  interpreted  so  widely  as  to   include\t all
\ninterlocutory  orders or other similar orders passed in\t the
\ncourse\tof  the trial of a suit.  This aspect  came  up\t for
\nconsideration  before this Court when interpreting S.  38(1)
\nof the Act of 1958 in which also a provision for appeals has
\nbeen made, and the language used is very wide inasmuch as it
\nis  laid down that “an appeal shall lie from every order  of
\nthe  Controller\t made under this Act…….. The  extent  of
\nthis  right of appeal under S. 38(1) was considered by\tthis
\nCourt  in the Central Bank of India Ltd. v.  Gokal  Chand<\/a>(1)
\nand  it was held that “the object of S. 38(1) is to  give  a
\nright  of  appeal to a party aggrieved by some\torder  which
\naffects his right or liability.\t In the context of S. 38(1),
\nthe  words  “every order of the Controller made\t under\tthis
\nAct, though very wide, do not include interlocutory  orders,
\nwhich are merely procedural and do not affect the rights  or
\nliabilities   of  the  parties.”  The  principle  was\tthus
\nrecognised that the word “order” used in such context is not
\nwide enough to include every order, whatever be its  nature,
\nand particularly orders which only dispose of  interlocutory
\nmatters.   In the case before us also, all that was done  by
\nthe  application  presented  by the appellant  on  the\t13th
\nMarch,\t1961,  was to raise a preliminary  issue  about\t the
\nmaintainability of the suit on the ground that the suit\t had
\nabated by virtue of s. 50(2) of the Act of 1958.  The  Court
\nwent  into that issue and decided it against the  appellant.
\nIf the decision had been in favour of the appellant and\t the
\nsuit  had been dismissed, no doubt there would have  been  a
\nfinal  order in the suit having the effect of a decree\t(see
\nthe  decision of the Full Bench of the Lahore High Court  in
\nRam  Charan Das v. Hira Nand(2).  On the other hand, if,  as
\nin the present case, it is held that the suit has not abated
\nand  its  trial\t is to continue, there\tis  no\tfinal  order
\ndeciding  the  rights or liabilities of the parties  to\t the
\nsuit.\tThe  rights and liabilities have yet to\t be  decided
\nafter full trial has been gone through.\t The decision by the
\ncourt  is only in the nature of a finding on  a\t preliminary
\nissue on which would depend the maintainability of the suit.
\nSuch a finding cannot be held to be an order for purposes of
\ns. 34 of the Act of 1952, and, consequently,
\n(1) (1967] 1 S.C.R. 310.\n<\/p>\n
(2) A.I.R. 1945 Lah, 298.\n<\/p>\n
64<\/span><\/p>\n
no  appeal against such an order would be maintainable.\t  It
\nwas indicated by this Court in the case of the Central\tBank
\nof  India Ltd. (1) that, in such a case, it is open  to\t the
\nappellant to canvass the error, defect, or irregularity,  if
\nany,  in the order in an appeal from the final order  passed
\nin the proceedings for eviction.  In the present case  also,
\ntherefore, it is clearly open to the appellant to raise this
\nplea  of  abatement  of the suit, if and when  he  files  an
\nappeal\tagainst\t a decree for eviction passed by  the  trial
\nCourt.\n<\/p>\n
Learned counsel for the appellant relied on the language  of
\nsub-s.\t(4)  of s. 33 of the Act of 1952 to  urge  that\t the
\nappellant’s  application,  requesting  the  trial  Court  to
\nrecord\tabatement of the suit, should be held to be  a\tcase
\nunder s. 3 3 (1) of that Act, and the order, rejecting\tthat
\napplication,  should  be  held to be,  therefore,  an  order
\nfinally\t disposing  of that case.  This submission  made  by
\nlearned\t counsel ignores the nature of the  application\t and
\nthe  effect of the order made on it by the trial Court.\t  As
\nwe have indicated earlier, the application was in the nature
\nof  a  request to the court to decide  a  preliminary  issue
\nwhether\t the suit had abated or was still maintainable,\t and
\nto  dismiss  the suit on recording the finding that  it\t had
\nabated.\t  The  application  was, therefore,  one  raising  a
\npreliminary  issue  as to the maintainability of  the  suit;
\nand, in fact, the request for raising the issue was  allowed
\nby the trial Court by going into that issue and recording  a
\nfinding.    On\t that\tfinding,  the\tsuit   was   clearly
\nmaintainable.  Such a finding on a preliminary issue,  which
\nrelates to the maintainability of a suit, is not an order of
\na  nature  against  which an appeal can\t lie.\tAs  we\thave
\nindicated above, the only remedy available to the  appellant
\nwas,  and  still  is, to challenge the\tcorrectness  of\t the
\ndecision  of  the  trial Court in  the\tappeal\tagainst\t the
\ndecree, if passed against him.\n<\/p>\n
The appeal, consequently, fails and is dismissed with costs.\n<\/p>\n
G.C\t\t\t\t  Appeal dismissed\n(1) [1967] 1 S.C.R. 310.\n65<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bant Singh Gill vs Shanti Devi & Ors on 1 March, 1967 Equivalent citations: 1967 AIR 1360, 1967 SCR (3) 59 Author: R Bachawat Bench: Bachawat, R.S. PETITIONER: BANT SINGH GILL Vs. RESPONDENT: SHANTI DEVI & ORS. DATE OF JUDGMENT: 01\/03\/1967 BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. BHARGAVA, VISHISHTHA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-52967","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBant Singh Gill vs Shanti Devi & Ors on 1 March, 1967 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bant-singh-gill-vs-shanti-devi-ors-on-1-march-1967\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bant Singh Gill vs Shanti Devi & Ors on 1 March, 1967 - 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