Rattan Chand Vs. Gagman Singh - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - aggarwal disputes the correctness of this decision as well.ordermahajan, j. 1. this petition for revision is directed against the order of the appellate authority allowing the landlord's application for eviction of the tenant.2. an application was made in the first instance by the landlord on the 3rd of october, 1968, claiming rent at the rate of rs.25/- per mensem from the tenant from 1st of october, 1967. that application was dismissed on the 11th of june, 1969 because the rent controller accepted the plea of the tenant that there was no relationship of landlord and tenant between the parties. it may be mentioned that at the first hearing neither the rent due nor interest or costs were paid by the tenant, though the costs were assessed by the rent controller. the landlord then appealed and during the pendency of the appeal the landlord filed a second application on the 9th of january, 1970. in this application, again rent was claimed from 1st october, 1967, to 31st december, 1969. on the 4th of march, 1970, the tenant paid the rent claimed without prejudice to his right to a decision that he was not the tenant of the landlord. this application was dismissed on 4th of march, 1970, because arrears of rent with costs and interests had been paid.3. the appeal that had been filed in the first application, was allowed by the appellate authority and it was held that the relationship of landlord and tenant existed between the parties. against that decision, the present petition for revision has been filed by the tenant.4. the contention of the tenant is that the ground on the basis of which eviction has been ordered, namely non-payment of arrears of rent at the first hearing, was not available to the landlord in view of the second application filed by him in which those arrears had been claimed. for this contention, reliance has been placed on m/s. bagarian armoury v. rakha ram, 1966-68 pun lr 847. mr. r. l. aggarwal, who appears for the landlord, on the other hand, contends that this decision is distinguishable, and, in any case, the costs of the first application cannot be said to have been cleared because that application was still pending and on the basis of non-payment of costs the tenant had suffered eviction. his further contention is that the tender in the second application was a conditional tender and, therefore, that was no tender in law which would take away his plea of non-payment of arrears of rent in the first application. mr. sarin, for the tenant, meets the argument of mr. aggarwal regarding conditional tender by reference to the decision of harnam singh j. in maya ram v. shivji maharaj idol mandir, shawla, batala, civil misc. no. 141 of 1955, d/- 22-8-1955 (punj), wherein such a tender was held to be not a conditional tender. mr. aggarwal disputes the correctness of this decision as well.5. this is a matter which is of considerable importance on both the aspects and is likely to arise frequently. as no letters patent appeal lies against my decision, it would be proper that this case is heard by a larger bench. i, therefore, direct that the papers of this case be laid before my lord the chief justice for constituting a division bench for disposal of this case.

Judgment:
ORDER

Mahajan, J.

1. This petition for revision is directed against the order of the Appellate Authority allowing the landlord's application for eviction of the tenant.

2. An application was made in the first instance by the landlord on the 3rd of October, 1968, claiming rent at the rate of Rs.25/- per mensem from the tenant from 1st of October, 1967. That application was dismissed on the 11th of June, 1969 because the Rent Controller accepted the plea of the tenant that there was no relationship of landlord and tenant between the parties. It may be mentioned that at the first hearing neither the rent due nor interest or costs were paid by the tenant, though the costs were assessed by the Rent Controller. The landlord then appealed and during the pendency of the appeal the landlord filed a second application on the 9th of January, 1970. In this application, again rent was claimed from 1st October, 1967, to 31st December, 1969. On the 4th of March, 1970, the tenant paid the rent claimed without prejudice to his right to a decision that he was not the tenant of the landlord. This application was dismissed on 4th of March, 1970, because arrears of rent with costs and interests had been paid.

3. The appeal that had been filed in the first application, was allowed by the Appellate Authority and it was held that the relationship of landlord and tenant existed between the parties. Against that decision, the present petition for revision has been filed by the tenant.

4. The contention of the tenant is that the ground on the basis of which eviction has been ordered, namely non-payment of arrears of rent at the first hearing, was not available to the landlord in view of the second application filed by him in which those arrears had been claimed. For this contention, reliance has been placed on M/s. Bagarian Armoury v. Rakha Ram, 1966-68 Pun LR 847. Mr. R. L. Aggarwal, who appears for the landlord, on the other hand, contends that this decision is distinguishable, and, in any case, the costs of the first application cannot be said to have been cleared because that application was still pending and on the basis of non-payment of costs the tenant had suffered eviction. His further contention is that the tender in the second application was a conditional tender and, therefore, that was no tender in law which would take away his plea of non-payment of arrears of rent in the first application. Mr. Sarin, for the tenant, meets the argument of Mr. Aggarwal regarding conditional tender by reference to the decision of Harnam Singh J. in Maya Ram v. Shivji Maharaj Idol Mandir, Shawla, Batala, Civil Misc. No. 141 of 1955, D/- 22-8-1955 (Punj), wherein such a tender was held to be not a conditional tender. Mr. Aggarwal disputes the correctness of this decision as well.

5. This is a matter which is of considerable importance on both the aspects and is likely to arise frequently. As no letters patent appeal lies against my decision, it would be proper that this case is heard by a larger Bench. I, therefore, direct that the papers of this case be laid before my Lord the Chief Justice for constituting a Division Bench for disposal of this case.