Ram Lal Kapur and Sons (P)Ltd v. Ram Nath and Others

AYYANGAR, J.-This is an appeal by special Ayµnzar J. leave against a judgment of a learned Single Judge of the Punjab High Court holding that s. 7 A of the Delhi. and Ajmer Rent Control Act, 1947 (herein· after called the Act), was unconstitutional as viola· tive of the fundamental right guaranteed by Art. 14 of the Constitution.

The first respondent Ram Nath owns a building in Delhi of which, among others, the appellant-company was a tenant. The appellant moved the Rent Controller, Delhi, under s. 7A of the Act for fixation of the fair Tent of the portion in its occupation. These proceedings have had a chequered history which it is not material to set out, but suffice it to say that the Rent Controller,

241 SUPREME OOURT REPORTS [1963)

l~G .. Delhi, computed the fair rent for the entire building

at Rs. 565/- p. m. and the fair rent payable by the Ham/al Kapur appellant at Rs. 146/- per month. It is necessary cl: So1111 (f'J Ltd

v. to mention that under the Act the Rent Controller Ram Nallt. would have had jurisdiction to entertain the appel-AyJ41tlOT J. lant's application for the fixation of fair rent and

for so fixing it only if the construction of the building in question was completed after March 24, 194 7, but if the construction of the building was completed earlier the ordinary Civil Courts and not the !:tent Controller would have had jurisdiction to _, determine the matter. The date of the completion of the first respondent's building therefore loomed large in the enquiry before the Rent Controller and tba.t authority recorded e. finding on this matter adverse to the first respondent in hie order.

The landlord-first respondent preferred an appeal against the order of the Rent Controller to the learned District Judge, Delhi, but the appeal was dismissed. Thereafter he moved the High Court of the Punjab under Art. ~27 of the Constitution challenging the correctness and propriety of every finding by the Rent Controller and of the District Judge on appeal. Thie petition ca.me on for hearing before e. learned Single Jud~e of the High Court. A Division Bench of the High Court had sometime previously held in another batch of cases (British .Medical Stores' v. Bhagirath ]lfal) (1) a.rising under the Act, that s. 7 A was unconstitutional and void and following this decision he allowed the petitien oi the first respondent and set aside the order of the Rent Controller as without jurisdiction, without considering the other matters which would arise if the section was valid and the Rent Cont-roller had jurisdiction. From this decision of the learned Single Judge, the appellant preferred an appeal under the Letters Pe.tent to a Division Bench.

(I) [195~] I. L It. I Puojab, 639.

' Mean while the judgement in British Medical 1961 Stores v. Bhagirath Mal(') was brought np by way Rt1t11/ol KapUI' of appeal to this and as the appeal was dl Sons (P) Lti· Cou~t, v. getting ready to be heard, the appellanta applied .1,, R11tn .. ,., Na.fh for and obtained special leave to appeal to this J. Court even during the pendency in the High "Court, of the appeal by it under tha Letters Patent. The Letters Patent appeal was thereafter withdrawn by the appellant.

The appeal in the Briti,ah Medical Stor~ case (') was heard by this Court an<!. the same was allowed by a judgment dated August 2, 1961, aqd this Court held reversing the judgment of the Punjab High Court that s. 7 A of the Act was valid (2).

It would thus be seen that the only point which the learned Judge considered and on which the revision petition of the landlord-first respondent was allowed no longer subsists and hence the appel· lant is entitled to have the appeal allowed. As the learned Single Judge did not consider the other objeotions raised by the first respondent to the otder of the Controller fixing the standard fair rent · payable by the appellant, the appeal has to be

remanded to the High Court for being dealt with according to law. ·

Before concluding it is necessary to advert to a preliminary objection to the hearing of t.bti appeal raised by learnetl Counsel for the Jandlord.respon· ·dent. His submission was that the special leave which was granted by this Court exparte should be revoked as having been improperly obtained. The facts in relation thereto were these. The judgment of the learned Single Judge to appeal from which the leave was granted was dated January 5, 1955, and the application to this Court seeking leave was

(I) (19SSJ l.L.R. 8 Punjab 639.

(21 See R•shanL·I Mlhr.u.JshwarDass [l962J 2 S, C.R. 947.

246 i:iUP.REME COURT REPOHTS (IlllJ3j 1962 made on January 5, 195!.l, i.e., nfLcr a lapse of four

years. It is obvious thl\t it waA an applicat10n Roml·/ s.., Koptl'I' which had been filed far beyond the period of d: (P) LJd.

•• limitation proscribed by the rules of this Court . lioin N .Ila Learned Counael for the reApondent urged that

there were no sufficient grounds for condon;ng that long delay and that we should therefore revoke the leave.

We are not disposed to accede to this request for revoking the leave in tho peculiar circumstances of this case. Learned Counsel invited our atten-tion to a few drciaions in which leave granted ex-parte was revoked at the stage of the hearing of tho appeal on an objection raised by the respondent; but we do not consider that the facts of the present appeal bear any analogy to those in the decisions cited. In the first place, there was no by·p81!8ing the High Court, because the appellant had filed an appeal under the Letters Patent and it was during the pendency of that appeal that he moved this Court for leave. Next, there was no suppression of !\DY fact which would have relevance to the gran-ting or withholding of the leave, and the exact position as it stood at the time the petition was tiled was eet out in it. Thirdly, it is obvious that if the delay had not been condoned and leave refused when application therefor was made in January 1959, the appellant would have prosecuted his Letters Patent appeal and he could obviously have come up here if the decision went against him. In fact, the grant of special leave in the circumstall·· oes of this case, merely served to shorten the proce-edings, a.od this Court acceded to the petition for leave obviously because the appeal in this Court froln judgments in the ca.se of the British Medical .~torea el,c, (l) were getting ready for hearing and there wae some advantage if the appellant wae in a position to intervene in those other appeals. In

(I) (19SS) l.L.R. 8 Punjab t.3).

~ S.O.R. SUPREME OOUR'l' REPORTS 247

view of these considerations we a.re of the opinion that this is not a case in which the leave should he revoked. ' Ramlal l\opur &I Sant •• (P) Ltd. NevertheleBB, we consider that we should add that, except in very rare cases, if not invariably, it RamJlath - should be proper that this Court should adopt as a AyµagarJ. settled rule that the delay in making an application for special leave should not be condoned ex.parte but that before granting leave in such oases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave. Such a. oobrse besides being just, would be preferable to having to decide applications for .

revoking leave on the ground that the delay in making the same was improperly condoned yea.rs after the grant of the leave when the Court natural-ly feels embarraBSed by the injustice which would be caused to the appellant if leave were then revok-ed when he would he deprived of the opportunity of pursuing other remedies if leave had been refused earlier. We would suggest that the rules of the Court should be amended suitably to achieve this purpose.

The result is that the appeal is allowed &nd the order of the learned Single Judge accepting the revision petition under Art. 227 preferred by the ·landlord-first respondent is set aside. The case is remanded to the High Court for considering the petition of the respondent in accordance with law and on the footing that s. 7 A of the Rent Control Act is a valid piece of legislation.

It is admitted that the point as regards the constitutionality of P.. 7 A of the Rent Control Act was not raised by the landlord-respondent, and in the circumstances of the case we direct the parties to bear their own costs in this Court. The costs in the High Court will be as directed by that Oourt.

CIVIL APPELLATJ<J JURISDICTION~ Civil Appeal No. 470 of 19tll.

Appeal by special leave from judgment and order dated January 5, 1955, of the Punjab High Court of (Circuit Bench) at Delhi in Civil Misc. l'etn. No. 71/D of 1954.

N. O. OhaUerjee, Hardayal Hardy and N. N.

Keswani, for the appellant .

• R. S. Narula, (or the respondents Nos. 1 to a.

1962. April 18. The Judgment of the Court was delivered by