Judgment:
B.P. Katakey, J.
1. The petitioners, by these petitions seek to invoke the jurisdiction of this Court under Section 115 read with Section 151 of Code of Civil Procedure (in short, 'the Code') challenging the orders all dated 26.06.2006 passed by the learned Civil Judge (Jr. Division), No. 1, Silchar in different Misc. (Rent Control) cases filed for depositing the rent in Court for the month of December, 2005 under the provisions of Sub-section 4 of Section 5 of the Assam Urban Areas Rent Control Act, 1972 (in short, 'the Act'). Since the questions involved in the present petitions are similar and identical, hence all these petitions are taken up for hearing and disposal together, as agreed to by the learned Counsel for the parties.
2. The petitioners on 16.01.2006 filed Miscellaneous Applications in the Court of the learned Civil Judge (Jr. Division), No. 1, Silchar under Sub-section 4 of Section 5 of the Act depositing the monthly rent for the month of December, 2005, which were registered as various Misc. Cases, stating that the agreed monthly rent payable has been refused on being tendered by the landlord. It is the further case of the petitioners that on 18.01.2006 the agreed rent was deposited in the treasury by challans. The said Misc. Cases were, however, ordered to be filed for want of steps, by order dated 29.04.2006, whereafter, applications were filed in the month of June, 2006 under Order 9 Rule 4 read with Section 151 of the Code. The said applications were rejected by orders all dated 26.06.2006 by the learned Civil Judge (Jr. Division), No. 1, Cachar at Silchar, on the ground that the provisions of the Code are not applicable in the application filed under Sub-section 4 of Section 5 of the Act. Hence, the present applications challenging the said orders.
3. I have heard Ms. P. Chakraborty, the learned Counsel for the petitioners and Mr. N. Choudhury, the learned Counsel appearing on behalf of the opposite parties in all the applications.
4. Ms. Chakraborty, the learned Counsel for the petitioners challenging the orders dated 26.06.2006 has submitted that as Sub-section 4 of Section 5 of the Act provides for deposit of rent in 'Court' within a fortnight of its becoming due when the landlord refuses to accept the lawful rent offered by the tenant and the 'Court' having been defined in Section 2(a) of the Act as the Court of ordinary civil jurisdiction competent to pass a decree for ejection of a tenant from the house, the provisions of the Code are applicable, more so when Section 141 of the Code provides that the provisions of the Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. The learned Counsel, therefore, submits that the orders dated 26.06.2006 refusing to entertain the applications filed by the petitioners under Order 9 Rule 4 read with Section 151 of the Code, for restoration of the Miscellaneous Applications filed under Sub-section 4 of Section 5 of the Act, by holding that the provisions of the Code are not applicable, cannot be sustained in law and hence the said orders are required to be set aside by directing the learned Court below to consider the applications filed by the petitioners on merit.
5. Mr. Choudhury, on the other hand, referring to the provision of Sub-section 4 of Section 5 of the Act has submitted that in an application filed by the tenant depositing the rent in Court no lis is decided and such Court do not exercise the judicial function and, therefore, it is not a 'proceeding' within the meaning of Section 141 of the Code, so as to apply the provisions of the Code, even though the 'Court' has been defined in Section 2(a) of the Act, as the Court of ordinary civil jurisdiction. It has further been submitted that if the provisions of the Code are applied in such an application filed under Sub-section 4 of Section 5 of the Act, the disposal of the suit by the landlord for ejectment of the tenant under the provisions of the Act would be delayed thereby defeating the purpose for which the Act has been enacted and by giving license to the tenant to delay such proceeding even though he is a defaulter for not paying the rent to the landlord. Mr. Choudhury has further submitted that if an application under Sub-section 4 of Section 5 of the Act is wrongly ordered to be filed, the tenant would not be remediless as he can raised that question in the suit filed or to be filed by the landlord for his ejectment, by contending that he is not a defaulter within the meaning of the Act, as, such application was wrongly filed by the Court. Mr. Choudhury, in support of his contention, has placed reliance on the decision of the Madrass High Court in Rayala Corporation (Mad.) Ltd. v. Syed Bawkar & Co. and Ors. reported in : AIR1957Mad385 and on the decision of the Apex Court in SAL Narayan Row and Anr. v. Ishwarlal Bhagwandas and Anr. reported in : [1965]57ITR149(SC) .
6. The question, which, arises for decision of this Court is--whether the provisions of the Code are applicable in respect of an application filed under Sub-section 4 of Section 5 of the Act.
7. Sub-Section 1 of Section 5 of the Act provides that no order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays the rent to the full extent allowable under the Act and performs the conditions of the tenancy. Proviso to Sub-section 1 stipulates that nothing in the said sub-section are applied in a suit or proceedings for eviction of the tenant from the house on any of the grounds enumerated in Clauses (a) to (f), which includes the tenants failure to pay therent lawfully due within a fortnight of its falling due. Sub-section 4 of Section 5 of the Act authorizes a tenant to make deposit in Court the lawful rent, within a fornight of its becoming due, in the event the landlord refuses to accept such rent, together with the process fees for service of notice upon the landlord, so as not to treat such tenant a defaulter under Clause (e) of the proviso to Sub-section 1 of that Section. Sub-section 4 further requires the Court, on fulfilling such conditions enumerated in the said sub-section, to clause a notice of the receipt of such deposit to be served on the landlord, which amount may, thereafter, be withdrawn by the landlord on application made by him to the Court in that behalf. The 'Court' has been defined in Section 2(a) of the Act as the Court of ordinary civil jurisdiction in the area in which a house is situated, which would be competent to pass a decree for the ejection of the tenant from the house.
8. There is no manner of doubt that the provisions of the Code is applicable in a suit filed by the landlord for ejection of the tenant on any of the grounds enumerated in Section 5 of the Act, as the decree has to be passed for recovery of possession of any house by the Civil Court having jurisdiction over the subject matter exercising the power of Civil Court. The decision on the question as stated above, is, therefore, depends on the determination of the question--whether the application filed under Sub-section 4 of Section 5 of the Act is a 'proceeding' within the meaning of Section 141 of the Code, as the said provision requires that the provisions of the Code in regard to the suit shall be followed, as far as it can be made applicable, in all proceedings of any Court of civil jurisdiction.
9. The 'proceeding' has not been defined either under the Code or in the Act. 'Proceeding' as per Black's Law Dictionary means:
(1) The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. (2) Any procedural means for seeking redress from a tribunal or agency. (3) An act or step that is part of a larger action. (4) The business conducted by a court or other official body; a hearing. (5) Bankruptcy, a particular dispute or matter arising within a pending case as opposed to the case as a whole.
10. The word 'proceeding' generally means a prescribed course of action for enforcing a legal right. To constitute a 'proceeding' within the meaning of 141 of the Code, there must be adjudication of a dispute or capable of adjucating a dispute between the parties, by a Court, other than a suit or an appeal. The meaning of the word 'proceeding' would depend on the scope of the enactment wherein the expression is used with reference to a particular context where it occurs.
11. Sub-section 4 of Section 5 of the Act provides for depositing the rent by the tenant in Court subject to fulfillment of conditions namely, there must be refusal by the landlord to accept the lawful rent on being offered by the tenant, such deposit must be within a fortnight of its becoming due and together with the process fee for service of notice upon the landlord. From the language of Sub-section 4 of Section 5 of the said Act, it is evident that the Court in which such deposit made is not required to decide any question and also not required to decide any dispute between the landlord and the tenant. The dispute whether the tenant is a defaulter within the meaning of the Act, and as such is evictable can only be decided in a suit instituted in the Civil Court within the meaning of the Act. Though the 'Court' means the Court of the ordinary civil jurisdiction competent to pass a decree for ejectment of tenant, in the application filed under Sub-section 4 of Section 5 of the Code, it is not deciding any dispute between the landlord and tenant and is not adjudicating any lis. Hence, the application filed under Subsection 4 of Section 5 cannot be treated as a 'proceeding' within the meaning of Section 141 of the Code to apply the provisions of the Code to such application. Viewed from another angle, if the provisions of the Code is applied even to an application filed under Subsection 4 of Section 5 of the Act depositing the rent in Court, such Court, as soon as such application is filed has to issue notice before making such deposit of rent, to the landlord to file objection, then frame the issue, then take evidence and decide whether the deposit is valid or not within the meaning of Sub-section 4 of Section 5 of the Act. As discussed above, the said provision does not confer any power on the Court to decide such question and Court is simply to take deposit leaving the question relating to the legality and validity of such deposit to be decided in the suit instituted either by the landlord or by the tenants. If the provisions of the Code are applied, it will defeat the purposes for which subsection 4 of Section 5 has been enacted, as by applying the provisions of the Code a shrewd landlord may delay deposit of the rent by the tenant, thereby making him defaulter within the meaning of the Act.
12. In Rayala Corporation (Mad.) Ltd. (supra), a Division Bench of the Madras High Court has held that the General Rent Controllers under the Madras Buildings (Lease and Rent Control) Act, though are persons belonging to the judicial service, they are not 'Courts' and, therefore, the proceedings before them will not be governed by the provisions of the Code. The question, which arose for decision in the said case, was whether the rent controller has the power to summon witnesses other than the public servants by the issue of subpoenas. The issue involved in the said case and in the present batch of the petitions are two completely different issues Under the provisions of the Act, the landlord has to initiate the suit for ejectment of the ten ant in a Civil Court and, therefore, in such suit the provisions of the Code are applicable. However, that itself will not make the application under Sub-section 4 of Section 5 of the Act a 'proceeding' within the meaning of Section 141 of the Code, for the reasons discussed above. A constitution Bench of the Apex Court in SAL Narayan Row (supra) in the context of the words 'civil proceeding' occurring in Article 133(1) of the Constitution of India has observed that the expressions 'civil proceeding' though not defined in the Constitution nor in the General Clauses Act, the said expression covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute and claims relief for breach thereof. The Apex Court in that case has held that the proceeding before the High Court on a petition under Article 226 in the matter of recovery of income tax are 'civil proceeding' within the meaning of Article 133(1) and hence the High Court has power to issue the certificate for appeal to the Supreme Court.
13. In the present petitions, the contention of the petitioners is that the application filed under Sub-section 4 of Section 5 of the Act being a 'proceeding', the provisions of the Code are applicable in the matter of such applications, in view of Section 141 of the Code. The said contention, for the reasons discussed above, cannot be accepted. Hence the learned Court below, in my considered view, has rightly passed the orders dated 26.06.2006 refusing to entertain the applications filed under Order 9 Rule 4 read with Section 151 of the Code.
14. That apart, as discussed above, the petitioners, who claims to be the tenant under the respective landlords, while filing the application under Sub-section 4 of Section 5 of the Act are als required to deposit the process fee for service of notice upon the landlord along with the application filed seeking deposit of the rent in Court. The petitioners, in the present petitions, have not stated that they have also deposited the process fee for service of notice upon the landlord while filing the applications, as required under Sub-section 4 of Section 5 of the Act. The learned Court below has ordered such applications to be filed vide order dated 26.06.2006 for want of such steps for service of notice. I, however, refrained from giving final opinion on the said issue, i.e. relating to the legality and validity of such deposit, as the same is to be decided in the suit that may be filed by the landlord for ejectment of the petitioners.
15. In view of the aforesaid discussion, I do not find any merit in the petitions and hence the same are dismissed leaving the parties to bear their own cost.