High Court

dated 18.10.2024 was challenged, as regards the order dated

19.03.2024, it was alleged that the same was fraudulently obtained by respondent Nos.2 to 5 against the law. In the interim application, a relief was sought for staying the operation and effect of the order dated 18.10.2024. The appellate authority entertained the appeal and after admitting, the same was transmitted to another court, where the interim application was pressed. The said interim application was rejected by means of the order dated 19.12.2024, mainly on the ground that the main order of the eviction dated 19.03.2024 had not been challenged. The main submission of learned counsel for the appellant that the order dated 19.03.2024 had merged in the order dated 18.10.2024 was not accepted by the appellate court and as such, the stay application was rejected.

4. While attacking the said order dated 19.12.2024, the main submission of Shri M.A. Khan, learned counsel appearing for the petitioner is that along with stay application, catena of judgements were cited by the petitioner, which are reflected in the order dated 19.12.2024. However, the appellate court has erred in not granting an interim relief despite admitting the appeal. He argues that it is fairly well settled that if the appeal is pending and entertained, any order which has the effect of adverse civil consequences should normally be stayed and thus, the said order is sought to be assailed as being beyond the settled proposition of law. It is fairly admitted that the order dated 19.03.2024 had never been challenged.

5. It is argued that in terms of the provisions contained in Section 34(2) of the Act, the Tribunal shall be treated to be a civil court and in terms of the mandate of the Rule 94 of the General Rules Civil, it is incumbent that the judgement be delivered within 15 days, which has not been done.

6. It is further argued that the petitioner had two remedies; firstly by challenging the order dated 19.03.2024 by filing an appeal and in alternative to move an application for recall of the said order dated 19.03.2024, the petitioner had rightly availed the said remedy and the dismissal of the application for recall, entitled the petitioner to prefer an appeal prescribed under Section 35 of the Act and as such, the appellate court was wrong in rejecting the stay application on the foundation that the main order dated 19.03.2024 has not been challenged.

7. He further argues that the remedies prescribed under Section 34 of the Act particularly Section 34(1)(h) of the Act, in which the application was filed read with Section 34(8) of the Act, are akin to Order 9 Rule 13 and it is fairly well settled that against an ex parte decree, it is open to the defendant to move an application under Order 9 Rule 13 and drawing a simile with the same, it is proposed to be argued that the petitioner had rightly availed the remedy of seeking of recall of the order. He further argues that the perusal of the order-sheet on record, which led to passing of the order dated 19.03.2024, clearly reveals that no hearing was afforded and despite the application filed by the land lord for issuance of Commission, being pending, the main case was decided, which should shake the judicial conscience of this Court. He thus argues that the petition deserves to be allowed and the impugned order deserves to be quashed.

8. Learned counsel for the respondents, on the other hand, argues that in terms of mandate of Section 34(1) of the Act, limited powers of civil court are conferred upon the Tribunal, which are specified in said Section 34(1) of the Act. He argues that the application was filed under Section 34(1)(h) of the said Act and there is no prescription by the State Legislature in the form of any enactment or in the form of any rule and thus, the application was not maintainable under Section 34(1)(h) of the Act.

9. He further argues that even under Section 34(8) of the Act, it is incumbent for the applicant filing the application to allege and establish that the order passed was an ex parte order and that notice was not duly served or the applicant was in any way prevented by sufficient cause from appearing when the case was taken up for hearing. He argues that no such pleadings existed and even in the appeal preferred against the order dated

18.10.2024, there is no averment that the order dated

19.03.2024 was an ex parte order.

10. He further argues that the submission of learned counsel for the petitioner that findings have been recorded with regard to raising of unauthorized constructions despite there being an application for appointment of Commissioner pending, would not given any benefit to the petitioners as the eviction petition was filed against the petitioners on three allegations, being in (i) default of rent, (ii) subletting and (iii) raising of illegal constructions and even if one of the ingredients are established, the eviction order is liable to be passed.

11. He further argues that in the appeal, there was no prayer made for staying the main eviction order dated 19.03.2024 and thus, the petitioner could not have made the said prayer either before the appellate court or before this Court. In light of the said, the petition is liable to be dismissed.

12. As the issues raised pertaining to interpretation of Section 34(1), 34(2) and 34(8) of the Act, they are quoted herein- below:- "34(1) The District Magistrate, the prescribed authority or any appellate authority shall for the purposes of holding any inquiry or hearing any appeal under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely,- (a) summoning and enforcing the attendance of any person and examining him on oath ;(b) receiving evidence on affidavits ;(c) inspecting a building or its locality, or issuing commissions for the examination of witnesses or documents or local investigation ;(d) requiring the discovery and production of documents ;(e) awarding, subject to any rules made in that behalf, costs or special costs to any party or requiring security for costs from any party ;(f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith ;(g) any other matter which may be prescribed. 34(2) The District Magistrate, the prescribed authority or appellate authority, while holding an inquiry or hearing' an appeal under this Act, shall be deemed to be a Civil Court within the Meaning of sections 480 arid 482 Of the Code of Criminal Procedure, 1898, and any proceeding before him or it to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code. 34(8) For the purposes of any proceedings under this Act and for purposes connected therewith the said authorities shall have such other powers and shall follow such procedure as may be prescribed."

13. Considering the submissions made at the Bar, as per the submission of learned counsel for the petitioners with regard to the applicability of the General Rules Civil by virtue of Section 34(2) of the Act, the same is liable to be rejected as on the plain language of Section 34(2) of the Act, the proceedings before the Rent authority or the Rent Tribunal are judicial proceedings only to the extent as defined under Section 193 and 228 of the Indian Penal Code and the Rent Tribunal is deemed to be a civil court only for the limited purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure. The said section on its plain reading and otherwise also, cannot lead to the conclusion that the General Rules Civil are applicable on the Rent Tribunal.

14. As regards the other submissions, the application filed by the petitioner for recall of the order dated 19.03.2024 was under Section 34(1)(h) of the Act, even if it is accepted for the sake of argument that the same would be relatable to Section 34(8) of the Act, the ingredients for invoking the powers to recall are apparently missing even in the appeal. There is no allegation that the order passed by the Rent Authority was an ex parte order, the allegation being the same has been obtained mala fide, there being no pleading to invoke the jurisdiction of the Rent Authority under Section 34(8) (even if it is presumed to be stated in the application), prima facie no ground existed for recall of the said order. In any case, the order of recall dated

18.10.2024 is subject matter of an appeal and cannot be commenced upon at this stage.

15. The contention of learned counsel for the petitioners with regard to the fact that the stay should be granted normally in an appeal which can lead consequences, also merits rejection, as the appeal was never filed against the main order of eviction. Even in the appeal, there was no relief sought staying the eviction in pursuant to the order dated 19.03.2024. The eviction is being done only in respect of the order dated 19.03.2024.

16. As regards the argument that the order dated 19.03.2024 stood merged in the order dated 18.10.2024, learned counsel for the petitioner does not want to press the said argument as such the same is not being considered.

17. For all the reasons recorded above, I do not see any reason to interfere with the impugned order dated 19.12.2024.

18. The petition lacks merits and is, accordingly, dismissed.

19. It is, however, observed that the order dated 18.10.2024 shall remain stayed. It is further clarified that the order dated

19.03.2024 has not been stayed by this Court and it shall be executed in accordance with law. Order Date :- 10.1.2025 Ashutosh

dated 18.10.2024 was challenged, as regards the order dated

19.03.2024, it was alleged that the same was fraudulently obtained by respondent Nos.2 to 5 against the law. In the interim application, a relief was sought for staying the operation and effect of the order dated 18.10.2024. The appellate authority entertained the appeal and after admitting, the same was transmitted to another court, where the interim application was pressed. The said interim application was rejected by means of the order dated 19.12.2024, mainly on the ground that the main order of the eviction dated 19.03.2024 had not been challenged. The main submission of learned counsel for the appellant that the order dated 19.03.2024 had merged in the order dated 18.10.2024 was not accepted by the appellate court and as such, the stay application was rejected.

4. While attacking the said order dated 19.12.2024, the main submission of Shri M.A. Khan, learned counsel appearing for the petitioner is that along with stay application, catena of judgements were cited by the petitioner, which are reflected in the order dated 19.12.2024. However, the appellate court has erred in not granting an interim relief despite admitting the appeal. He argues that it is fairly well settled that if the appeal is pending and entertained, any order which has the effect of adverse civil consequences should normally be stayed and thus, the said order is sought to be assailed as being beyond the settled proposition of law. It is fairly admitted that the order dated 19.03.2024 had never been challenged.

5. It is argued that in terms of the provisions contained in Section 34(2) of the Act, the Tribunal shall be treated to be a civil court and in terms of the mandate of the Rule 94 of the General Rules Civil, it is incumbent that the judgement be delivered within 15 days, which has not been done.

6. It is further argued that the petitioner had two remedies; firstly by challenging the order dated 19.03.2024 by filing an appeal and in alternative to move an application for recall of the said order dated 19.03.2024, the petitioner had rightly availed the said remedy and the dismissal of the application for recall, entitled the petitioner to prefer an appeal prescribed under Section 35 of the Act and as such, the appellate court was wrong in rejecting the stay application on the foundation that the main order dated 19.03.2024 has not been challenged.

7. He further argues that the remedies prescribed under Section 34 of the Act particularly Section 34(1)(h) of the Act, in which the application was filed read with Section 34(8) of the Act, are akin to Order 9 Rule 13 and it is fairly well settled that against an ex parte decree, it is open to the defendant to move an application under Order 9 Rule 13 and drawing a simile with the same, it is proposed to be argued that the petitioner had rightly availed the remedy of seeking of recall of the order. He further argues that the perusal of the order-sheet on record, which led to passing of the order dated 19.03.2024, clearly reveals that no hearing was afforded and despite the application filed by the land lord for issuance of Commission, being pending, the main case was decided, which should shake the judicial conscience of this Court. He thus argues that the petition deserves to be allowed and the impugned order deserves to be quashed.

8. Learned counsel for the respondents, on the other hand, argues that in terms of mandate of Section 34(1) of the Act, limited powers of civil court are conferred upon the Tribunal, which are specified in said Section 34(1) of the Act. He argues that the application was filed under Section 34(1)(h) of the said Act and there is no prescription by the State Legislature in the form of any enactment or in the form of any rule and thus, the application was not maintainable under Section 34(1)(h) of the Act.

9. He further argues that even under Section 34(8) of the Act, it is incumbent for the applicant filing the application to allege and establish that the order passed was an ex parte order and that notice was not duly served or the applicant was in any way prevented by sufficient cause from appearing when the case was taken up for hearing. He argues that no such pleadings existed and even in the appeal preferred against the order dated

18.10.2024, there is no averment that the order dated

19.03.2024 was an ex parte order.

10. He further argues that the submission of learned counsel for the petitioner that findings have been recorded with regard to raising of unauthorized constructions despite there being an application for appointment of Commissioner pending, would not given any benefit to the petitioners as the eviction petition was filed against the petitioners on three allegations, being in (i) default of rent, (ii) subletting and (iii) raising of illegal constructions and even if one of the ingredients are established, the eviction order is liable to be passed.

11. He further argues that in the appeal, there was no prayer made for staying the main eviction order dated 19.03.2024 and thus, the petitioner could not have made the said prayer either before the appellate court or before this Court. In light of the said, the petition is liable to be dismissed.

12. As the issues raised pertaining to interpretation of Section 34(1), 34(2) and 34(8) of the Act, they are quoted herein- below:- "34(1) The District Magistrate, the prescribed authority or any appellate authority shall for the purposes of holding any inquiry or hearing any appeal under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely,- (a) summoning and enforcing the attendance of any person and examining him on oath ;(b) receiving evidence on affidavits ;(c) inspecting a building or its locality, or issuing commissions for the examination of witnesses or documents or local investigation ;(d) requiring the discovery and production of documents ;(e) awarding, subject to any rules made in that behalf, costs or special costs to any party or requiring security for costs from any party ;(f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith ;(g) any other matter which may be prescribed. 34(2) The District Magistrate, the prescribed authority or appellate authority, while holding an inquiry or hearing' an appeal under this Act, shall be deemed to be a Civil Court within the Meaning of sections 480 arid 482 Of the Code of Criminal Procedure, 1898, and any proceeding before him or it to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code. 34(8) For the purposes of any proceedings under this Act and for purposes connected therewith the said authorities shall have such other powers and shall follow such procedure as may be prescribed."

13. Considering the submissions made at the Bar, as per the submission of learned counsel for the petitioners with regard to the applicability of the General Rules Civil by virtue of Section 34(2) of the Act, the same is liable to be rejected as on the plain language of Section 34(2) of the Act, the proceedings before the Rent authority or the Rent Tribunal are judicial proceedings only to the extent as defined under Section 193 and 228 of the Indian Penal Code and the Rent Tribunal is deemed to be a civil court only for the limited purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure. The said section on its plain reading and otherwise also, cannot lead to the conclusion that the General Rules Civil are applicable on the Rent Tribunal.

14. As regards the other submissions, the application filed by the petitioner for recall of the order dated 19.03.2024 was under Section 34(1)(h) of the Act, even if it is accepted for the sake of argument that the same would be relatable to Section 34(8) of the Act, the ingredients for invoking the powers to recall are apparently missing even in the appeal. There is no allegation that the order passed by the Rent Authority was an ex parte order, the allegation being the same has been obtained mala fide, there being no pleading to invoke the jurisdiction of the Rent Authority under Section 34(8) (even if it is presumed to be stated in the application), prima facie no ground existed for recall of the said order. In any case, the order of recall dated

18.10.2024 is subject matter of an appeal and cannot be commenced upon at this stage.

15. The contention of learned counsel for the petitioners with regard to the fact that the stay should be granted normally in an appeal which can lead consequences, also merits rejection, as the appeal was never filed against the main order of eviction. Even in the appeal, there was no relief sought staying the eviction in pursuant to the order dated 19.03.2024. The eviction is being done only in respect of the order dated 19.03.2024.

16. As regards the argument that the order dated 19.03.2024 stood merged in the order dated 18.10.2024, learned counsel for the petitioner does not want to press the said argument as such the same is not being considered.

17. For all the reasons recorded above, I do not see any reason to interfere with the impugned order dated 19.12.2024.

18. The petition lacks merits and is, accordingly, dismissed.

19. It is, however, observed that the order dated 18.10.2024 shall remain stayed. It is further clarified that the order dated

19.03.2024 has not been stayed by this Court and it shall be executed in accordance with law. Order Date :- 10.1.2025 Ashutosh