Punjab-Haryana High Court
Tirlok Singh Anand vs M/S Prem Chand & Sons And Others on 29 May, 2012
Bench: Hemant Gupta, A.N.Jindal
C.R.No.2268 of 2008 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R.No.2268 of 2008 (O&M)
Date of Decision : 29.05.2012
Tirlok Singh Anand ...Petitioner
Versus
M/s Prem Chand & Sons and others ...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N.JINDAL
Present: Mr. Arun Palli, Senior Advocate, with
Mr. Thushar Sharma, Advocate,
for the petitioner.
Mr. Akshay Bhan, Advocate,
for the respondents.
HEMANT GUPTA, J.
Learned Single Judge of this Court vide order dated 25.02.2012 has referred the following issues for the decision by a Larger Bench:
(a) If the notification dated 14.04.1947 is still holding the field by which only an order passed under Sections 4, 10, 12 & 13 is made appealable, then whether all orders passed by the Rent Controller have become appealable in terms of the notification No.4137/2-CII-76/17354 dated 29.04.1976 issued by the Government of Punjab?
(b) Whether the observation of the Supreme Court in para No.25 of the Harjit Singh Uppal Vs. Anup Bansal (Supra) i.e. (2011) 11 SCC 672, while referring to Section 15(1)(b) of the East Punjab Urban Rent Restriction Act, 1949 only, is an observation in context of the facts of that case as there was no issue of maintainability of appeal or revision arising out of C.R.No.2268 of 2008 (O&M) 2 interlocutory orders before it and there is no reference to Section 15(5) of the Act or Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973?
(c) Whether the orders passed by the Rent Controller during the proceedings exercising its inherent powers like in the case of amendment of pleadings, impleadment of parties, setting aside of ex parte proceedings, restoration of petition etc. etc... are revisable under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949? The brief facts out of which the present revision petition arises is that in a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short 'the Act'), the petitioner-tenant was proceeded ex parte. An application was filed by the tenant to set aside the ex parte proceedings as well the ex-parte ejectment order under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short 'the CPC'), which was dismissed on 01.02.2008. Initially, an objection was raised before this Court that the present revision petition is not maintainable, as the order declining to set aside ex parte proceedings is an appealable order. Reliance was placed upon Harjit Singh Uppal Vs. Anup Bansal (2011) 11 SCC 672.
Learned Single Judge while hearing the revision petition noticed the judgments of this court reported as Guranditta Ram Vs. Murari Lal & another 1974 PLR 579; Bikramjit Singh Paul Vs. Jaswant Singh 1976 PLR 16; Daya Chand Hardayal Vs. Bir Chand 1983 PLR 775 (F.B.); Chander Mohan Mittal Vs. Bihari Lal Gupta 1985 (1) PLR 458 & Shri Krishan Lal & another Vs. The Punjab, C.R.No.2268 of 2008 (O&M) 3 Backward Classes Land Development & Finance Corporation, Chandigarh 1985 (2) RCR (Rent) 59, wherein this court has taken a view that the orders passed by the learned Rent Controller under Sections 4, 10, 12 & 13 alone are appealable.
On the other hand, learned counsel for the respondents-landlord relied upon Harjit Singh Uppal's case (supra) and another Single Judge judgment of this Court in Sham Sunder & others Vs. Ravinder Nath Sharma 2011 (2) RCR (Rent) 608 to contend that an appeal lies against all orders passed by a Rent Controller.
Learned Single Judge in the order of reference observed that the notification dated 29.04.1976 has not superseded the notification dated 14.04.1947, as observed by the learned Single Bench in Sham Sunder's case (supra). Therefore, the District Judges or the Additional District Judges have been conferred powers to hear appeals against the orders passed under Sections 4, 10, 12 & 13 of the Act. In view of the said fact, learned Single Judge referred the matter on the issues, as mentioned above, by the Larger Bench. In pursuance of the said order, the matter has been placed before this Bench.
Since the issues are purely legal, it may be advantageous to reproduce relevant statutory provisions and the notifications issued from time to time:
The East Punjab Urban Rent Restriction Act, 1949 "15. Vesting of appellate authority on officers by State Government:
(1) (a) The State Government may, by a general or special order, by notification confer on such officers and authorities as they think fit, C.R.No.2268 of 2008 (O&M) 4 the powers of appellate authorities for the purposes of this Act, in such area in such classes of cases as may be specified in the order.
(b) Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order or such longer period as the appellate authority may allow for reasons to be recorded in writing, prefer an appeal in writing to the appellate authority having jurisdiction. In computing the period of fifteen days the time taken to obtain a certified copy of the order appealed against shall be excluded.
xxx xxx xxx"
Notification No. 1562-CR47/9228 dated 14th April, 1947 "In exercise of the powers conferred by sub-clause (a) of clause (1) of Section 15 of the Punjab Urban Rent Restriction Act, 1947, the Governor of Punjab is pleased to confer on all District & Sessions Judge in the Punjab in respect of the Urban Areas in their respective existing jurisdiction, the powers of Appellate Authorities for the purpose of the said Act, with regard to orders made by Rent Controller under Section 4, 10, 12 and 13 of the said Act."
Notification No. 9319-4CI-69/18997 dated 15th July, 1969 "In exercise of the powers conferred by clause (a) of sub-section (1) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949, the Governor of Punjab is pleased to confer upon the Additional District & Sessions Judge, Patiala at Rupar, the powers of an appellate authority for the purpose of the said Act in respect of the appeals arising from the orders passed by the Rent Controllers in the Rupar District."
Notification No. 3738-2CII-75/17408 dated 28th May, 1975 "In exercise of the powers conferred by clause (a) of sub-section (1) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949, the Governor of Punjab is pleased to confer on the Additional District & Sessions Judges of Amritsar, Jullundar, Ludhiana and Sangrur, the powers of Appellate Authorities for the purposes of the said Act in their respective jurisdiction, in respect of such appeals arising from orders passed C.R.No.2268 of 2008 (O&M) 5 by the Controllers, as may be allotted to them by the respective District & Sessions Judge (Appellate Authority)." Notification No. 4137-2CII-76/17534 dated 29th April, 1976 In supersession of Punjab Government Local Government Department notification No.9319-4CL-69/18997, dated the 15th July, 1969 and No.3738-2CII-75/17408, dated the 28th May, 1975 and in exercise of the powers conferred by clause
(a) of sub-section (1) of section 15 of the East Punjab Urban Rent Restriction Act, 1949 (Act No.III of 1949), the Governor of Punjab is pleased to confer on all the Additional District & Sessions Judges in the State of Punjab, the powers of Appellate Authorities for the purposes of the said Act to be exercised by them in their respective jurisdiction, in respect of such appeals arising from orders passed by the Controllers as may be made over to them by the District & Sessions Judge concerned.
It may be noticed that except the first notification of the year 1947 i.e.14th April, 1947, all the notifications published are after the re- organization of the State of Punjab carving out of a separate State of Haryana w.e.f. 01.11.1966 by the Punjab Reorganization Act, 1966. Therefore, the notification dated 15.07.1969 and the subsequent notifications are not applicable to the State of Haryana.
The East Punjab Urban Rent Restriction Act, 1949 was repealed by Section 24 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short 'the Haryana Act'). The relevant provisions of the Haryana Act read as under:
"15. Appellate and revisional authorities - (1) The State Government may, by a general or special order, by notification, confer on such officers and authorities as it may think fit, the powers of appellate authorities for the purposes of this Act, in such area or in such classes of cases as may be specified in the order.C.R.No.2268 of 2008 (O&M) 6
(2) Any person aggrieved by an order passed by the Controller may, within thirty days from the date of such order of such longer period as the appellate authority may allow for reasons to be recorded in writing, prefer an appeal in writing to the appellate authority having jurisdiction.
In computing the period of thirty days the time taken to obtain a certified copy of the order appealed against shall be excluded.
xxx xxx xxx"
24. Repeal and Savings - (1) The East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act No.3 of 1949), is hereby repealed;
Provided that such repeal shall not affect any proceedings pending or order passed immediately before the commencement of this Act, which shall be continued and disposed of or enforced as if the said Act had not been repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the Act so repealed (included only rule, notification or order made) which is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act as if this Act were in force at the time such thing was done or action was taken, and shall continue to be in force, unless and until superseded by anything done or any action taken under this Act.
In the State of Haryana, notification dated 07.09.1973 was published in the Haryana Government Extra-ordinary Gazette on 10.09.1973 in respect of constitution of the Appellate Authorities. The said notification reads as under:
Notification No. 9037-2C(1) 73/26753 dated September 7, 1973 "In exercise of the powers conferred by Sub-section (1) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, and in supersession of all previous notifications issued in this behalf the Governor of Haryana hereby confers on all the Deputy Commissioners in the State the powers of appellate authorities for the purposes of the said Act in the areas of their respective jurisdiction.
Provided that the persons exercising the powers of appellate authorities immediately before the issue of this notification shall continue to exercise the said powers in respect of the cases pending C.R.No.2268 of 2008 (O&M) 7 with them."
Subsequently, the Haryana Urban (Control of Rent and Eviction) Amendment Act, 1978 was enacted and in pursuance thereof, notifications were issued on 08.05.1978 appointing the subordinate Judges, as Controller and the District Judges as the Appellate Authorities. The relevant notification appointing District Judges, as the Appellate Authorities reads as under:
"No. S.O./71/HA-11/73/S.15/78. In exercise of the powers conferred by sub-section (1) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, and in supersession of all previous notifications issued in this behalf, the Governor of Haryana hereby confers on all the District Judges in the areas of their respective jurisdiction, the powers of Appellate Authority."
A Full Bench of this Court in a judgment reported as Daya Chand Hardayal Cloth Commission Agents Vs. Bir Chand AIR 1983 Punjab 378 has examined the notifications issued by the State of Haryana on 07.09.1973 and 08.05.1978 and returned a finding that in terms of Section 22 of the Punjab General Classes Act, 1898, the 1947 notification is applicable to both in the State of Punjab and in the State of Haryana. The relevant finding is as under:
"10. ....I would notice straightway that there is not a hint of challenge to the validity and enforceability of the aforesaid notification and the fact that thereby the only orders of the Controller which were made appealable were the ones issued under Sections 4, 10, 12 & 13, of the said Act. Nor is there any dispute that the aforesaid notification continued to have force and validity. Under the later provisions of the East Punjab Urban Rent Restriction Act, 1949, and indeed this is the case of the petitioner-tenant himself in the grounds of revision. This apart, Lakhi Ram Vs. Sagar Chand and another 1963 PLR 691, is clear C.R.No.2268 of 2008 (O&M) 8 authority that the aforesaid notification continued to hold the field under the subsequent statute in view of Section 22 of the Punjab General Clauses Act, 1898.
"Now Section 4 deals with the determination of fair rent, Section 10 lays an embargo on the landlord to interfere with the amenities enjoyed by the tenant, Section 12 empowers the Controller to make an order, for necessary repairs on the failure of the landlord to do so, while section 13 deals with the eviction of tenants. Appeals apparently are provided only in these four contingencies. The notification no doubt was passed under the Punjab Urban Rent Restriction Act, 1947, which was repealed by Section 21 of the East Punjab Urban Rent Restriction Act, 1949. It is, however, well to observe that sections 4, 10, 12 and 13 of the repealed Act dealt with identical situations in the corresponding provisions off the Act which is now in force........ "
The aforesaid judgment undoubtedly has held the field within this jurisdiction and was followed, and reiterated later in Bikramjit Singh Pal Vs. Jaswant Singh 1976 PLR 16. Consequently, there is no manner of doubt that the 1947 notification remained applicable in terms both in the State of Punjab and in the State of Haryana as well." After holding so, the Court held that the notifications issued by the State of Haryana does not effect radical change of making any and every order of Rent Controller as appealable. To return such finding, the support was taken from the Division Bench judgment in Raghu Nath Jalota Vs. Ramesh Duggal and another AIR 1980 Pb. & Hry. 188. It was observed as under:
13. Even otherwise on larger considerations, I find myself unable to subscribe to the view that either the Legislature or the State Government by issuance of the aforesaid notification had intended to effect a radical change of making any and every order or Rent Controller as appealable. The sole purpose and object of the rent laws in creating the special forum was to expedite the process and to take the matter away from the rather tedious speed in the ordinary civil courts.C.R.No.2268 of 2008 (O&M) 9
This was aptly highlighted by the Division Bench in Raghu Nath Jalota Vs. Ramesh Duggal and another AIR 1980 Pb. & Hry. 188 in the following terms:
'.......The underlying purpose was to rid the authorities under the Act from the shackles of technical procedure and to provide a summary and expeditious mode of disposal, is further evident from the fact that originally only one appeal was provided by the statute to the Appellate Authority and all further appeal or revisions were barred by Section 15(4) of the Act. It was not till 1956 that by the Punjab Act XXIX sub-section (5) was added to Section 15 of the Act vesting the High Court with special revisional jurisdiction thereunder.' If any and every order of the Controller is to be made appealable and that in turn may become either revisable under section 15(6) or supervisable under Article 227 of the Constitution of India, then by a process of interpretation, we would not be subserving the cause of expeditious disposal of the rent matters but only creating further road blocks therein. I have already pin pointed in considering Section 15 that if the intention of the Legislature was that any and every order of the Controller is appealable, then Section 15(1) and (2) would not be cast and framed as they are. In any case, if the legislature intended to make a significant change of this kind the proper and indeed the only method was the amendment of Section 15 designedly to that effect. It could then follow the existing example of Delhi, Madhya Pradesh and Rajasthan States where the statute in terms provided for every order or decree to be appealable. One cannot easily assume that so meaningful a change was sought to be introduced by a mere side wind by issuing a notification and then by implication withdrawing the same."
The view taken in the aforesaid judgment of the Full Bench came to be reiterated in Chander Mohan Mittal and Shri Krishan Lal's cases (supra) while interpreting the Punjab Act.
The entire controversy; whether all orders passed by the learned Rent Controller are appealable or not; arose in view of the Hon'ble Supreme Court judgment in Harjit Singh Uppal's case (supra).C.R.No.2268 of 2008 (O&M) 10
The question for determination in Harjit Singh Uppal's case (supra) was that if a tenant does not avail his remedy to challenge the order of provisional rent fixed under Section 13(2)(1) and the proviso to the East Punjab Urban Rent Restriction Act, 1949 by filing an appeal under Section 15(1)(b) within 15 days from the date of such order, whether the order fixing provisional rent becomes final and cannot be challenged subsequently, particularly, in an appeal challenging the order of eviction.
In the aforesaid case, the landlord sought eviction of the tenant for non-payment of agreed rent. The tenant took up a defence that he has been paying rent to the landlord regularly and also raised counter claim and claimed refund of excess amount paid to the landlord. The Rent Controller determined the provisional rent on June 11, 2009 and directed the tenant to make the payment of arrears of rent. The tenant moved an application for recall of the order and another application for calling upon the landlord to provide list of employees, so as to prove the factum of payment made by him to the landlord. Another application was filed by the tenant annexing copies of cheques encashed by the Manager of the landlord in support of the assertions that the rent stands paid to the landlord. All such applications were rejected by the Rent Controller vide order dated 07.04.2010. It was held that on the failure of the tenant to comply with the order of provisional assessment of arrears of rent, nothing remains to be done and accordingly, the Rent Controller passed the order of eviction relying upon the Hon'ble Supreme Court judgment in Rakesh Wadhawan & others Vs. Jagdamba Industrial Corporation & C.R.No.2268 of 2008 (O&M) 11 others (2002) 5 SCC 440.
The tenant filed an appeal assailing both the orders i.e. order dated 11.06.2009 determining the provisional arrears of rent and the order of eviction dated 07.04.2010. The Appellate Authority set aside the orders passed by the Rent Controller and remanded the matter to the Rent Controller with a direction to pass fresh order regarding provisional assessment of the arrears of rent, interest and costs of the proceedings.
The said order was challenged in revision. This Court set aside the order passed by the Appellate Authority and that the order of Rent Controller was restored. The tenant was in appeal before the Hon'ble Supreme Court aggrieved against the order passed by this court.
The argument of the tenant was that the Appellate Authority did not commit any error in setting aside the order in appeal preferred by the tenant, whereas the counsel for the landlord, inter alia, argued that the order determining provisional rent is a foundational order and not an interlocutory order and such order could have been challenged in appeal within 15 days from the date of passing of that order and in no other way and that in an appeal challenging the eviction order dated 07.04.2010, the order determining the provisional rent could not have been challenged. It was, in this background, the Hon'ble Supreme Court observed as under:
"25. Section 15(1)(b) of the 1949 Rent Act provides, to a person aggrieved by an order passed by the Rent Controller, a remedy of appeal. The Section provides for limitation for filing an appeal from that order and also the forum to which such appeal would lie. The provisions, for maintaining the appeal, does not make any difference between the final order and interlocutory order passed by the Rent C.R.No.2268 of 2008 (O&M) 12 Controller in the proceedings under the 1949 Rent Act. There is no specific provision in the Section that if a party aggrieved by an interlocutory order passed by the Rent Controller does not challenge that order in appeal immediately, though provided, and waits for the final outcome, whether in the appeal challenging the final order of the Rent Controller, the correctness of the interlocutory order from which an appeal lay could or could not be challenged in the appeal from the final order.
xxx xxx xxx
30. The order passed by the Rent Controller determining the provisional rent in an eviction petition based on the ground of default in a situation where the tenant fails to comply with that order may be a foundational order for an order of eviction that follows but nevertheless such order is an interlocutory order as that order does not determine the principal matter finally; it is only the order on subordinate matter with which it deals.
31. Section 15(1)(b) of 1949 Rent Act provides that a person aggrieved by an order passed by the Rent Controller may prefer appeal to the Appellate Authority within the time prescribed therein; it does not say that if any aggrieved person by an interlocutory order passed by the Rent Controller from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. There is no provision in Section 15(1)(b), a provision like Section 105(2) and Section 97 of the Code.
32. We find no impediment for an aggrieved person, on reading Section 15(1)(b) of the 1949 Rent Act, that an interlocutory order which had not been appealed though an appeal lay, could not be challenged in an appeal from the final order. In our opinion, Section 15(1)(b) does not make it imperative upon the person aggrieved to appeal from an interlocutory order and, if he does not do so, his right gets forfeited when he challenges the final order.
33. It is true that an order of eviction follows as a matter of course if there is non-compliance of the order determining the provisional rent but when tenant challenges the order of eviction and therein also challenges the order of fixation of provisional rent - the order of eviction, in its nature, being dependent on the correctness of the order fixing the provisional rent and there being no indication to the contrary C.R.No.2268 of 2008 (O&M) 13 in Section 15(1)(b) - it must be open to the Appellate Authority to go into correctness of such provisional order when put in issue.
After observing so, the order passed by this Court was set aside and that of the Appellate Authority was restored.
A learned Single Judge of this Court in Sham Sunder's case (supra) held that the notification dated 14.04.1947 is applicable, but vide notification dated 29.04.1976, all the Additional District Judges in the State of Punjab have been empowered to hear appeals arising out of all the orders of Rent Controller. The Court observed as under:
11. Thus, a perusal of the aforesaid notification would show that vide aforesaid notification all the Additional District Judges in the State of Punjab have been empowered to hear appeals arising out of all orders of the Rent Controllers passed in the proceedings under the said Act, whereas, in the notification of 1947 the Appellate Authorities under the said Act were vested with powers of Appellate Authority only with respect to orders passed by the Rent Controllers under sections 4,10,12 and 13 only. In fact, under the aforesaid notification dated 29.4.1976, the Appellate Authorities under the provisions of the East Punjab Urban Rent Restriction Act, 1949, have been vested with much wider powers for the purpose of the said Act to be exercised by them in their respective jurisdiction in respect of such appeals arising from orders passed by the Rent Controllers, whereas, vide earlier notification dated 14.4.1947, the Appellate Authorities were vested with the powers of the Appellate Authority only with respect to the orders passed by the Rent Controllers under sections 4,10,12 and 13 of the Act only. In fact, the notification dated 29.4.1976 was not brought to the notice of the Hon'ble Full Bench of this Court in M/s Daya Chand Hardayal's case (supra).
We have heard learned counsel for the parties at length and found that the view of this Court in Sham Sunder's case (supra) is based upon in-correct interpretation of the statute and the notifications and that C.R.No.2268 of 2008 (O&M) 14 the judgment of Harjit Singh Uppal's case (supra) has been wrongly relied upon to return a finding that all orders passed by the Rent Controller are appealable.
The issue in Harjit Singh Uppal's case (supra) was not whether all orders passed by the Rent Controller are appealable before the Appellate Authority. It was contended that an order of fixation of the provisional rent is an appealable order and such appeal should have been filed within 15 days from the passing of the said order and cannot be made part of the challenge in an appeal against the order of eviction. Neither there was any occasion nor any reference made to the notifications dated 14.04.1947 and 29.04.1976 while interpreting the scope of the orders against which an appeal is maintainable. It is well- settled that the binding precedent of a judgment is the ratio decidendi, the question which arose and decided and not the observations, which are made during the course of discussion to arrive at a finding.
In Fida Hussain & others Vs. Moradabad Development Authority & another (2011) 12 SCC 615, the Hon'ble Supreme Court observed as under:
21. It is now well settled that a decision of this Court based on specific facts does not operate as a precedent for future cases. Only the principles of law that emanate from a judgment of this Court, which have aided in reaching a conclusion of the problem, are binding precedents within the meaning of Article 141. However, if the question of law before the Court is the same as in the previous case, the judgment of the Court in the former is binding on the latter, for the reason that the question of law before the Court is already settled. In other words, if the Court determines a certain issue for a certain set of C.R.No.2268 of 2008 (O&M) 15 facts, then, that issue stands determined for any other matter on the same set of facts.
In Union of India & another Vs. Arulmozhi Iniarasu & others (2011) 7 SCC 397 the Hon'ble Supreme Court observed as under:
14. Before examining the first limb of the question, formulated above, it would be instructive to note, as a preface, the well-settled principle of law in the matter of applying precedents that the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. The observations of the courts are neither to be read as Euclid's theorems nor as provisions of statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases. [Ref. Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani (2004) 8 SCC 579; Sarva Shramik Sanghatana (KV) v. State of Maharashtra (2008) 1 SCC 494 and Bhuwalka Steel Industries Ltd. v.
Bombay Iron & Steel Labour Board (2010) 2 SCC 273.] In State of Madhya Pradesh v. Narmada Bachao Andolan & another (2011) 7 SCC 639, the Hon'ble Supreme Court observed as under:
64. The court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases.
Disposal of cases by blindly placing reliance upon a decision is not C.R.No.2268 of 2008 (O&M) 16 proper. (Vide MCD v. Gurnam Kaur (1989) 1 SCC 101, Govt. of Karnataka v. Gowramma (2007) 13 SCC 482 and State of Haryana v. Dharam Singh (2009) 4 SCC 340.) Reference may also be made to Municipal Corporation of Delhi Vs. Gurnam Kaur (1989) 1 SCC 101 and Punjab Land Development and Reclamation Corporation Ltd. Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and others (1990) 3 SCC 682. In Gurnam Kaur's case (supra), it was observed as under:
"10. It is axiomatic that when a direction or order is made by consent of the parties, the court does not adjudicate upon the rights of the parties nor does it lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice.....
In the aforesaid case, the Court also observed that when no argument was addressed to the Court on the question, it is a decision passed sub silentio. It was observed as under:
11. .....So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J.Fitzgerald, editor of the Salmond on Jurisprudence. 12th edn. Explains the concept of sub silentio at p. 153 in these words:
"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of C.R.No.2268 of 2008 (O&M) 17 one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.
12. In Gerard v. Worth of Paris Ltd. (k)., [1936] 2 All E.R. 905 (C.A.), the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd., [1941] 1 KB 675, the Court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. We went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.
In Punjab Land Development and Reclamation Corporation Ltd. Chandigarh case (supra), it was held to the following effect:
"44. An analysis of judicial precedent, ratio decidendi and the ambit of earlier and later decisions is to be found in the House of Lords' C.R.No.2268 of 2008 (O&M) 18 decision in F.A. & A.B. Ltd. v. Lupton (Inspector of Taxes), [1972] AC 634, Lord Simon concerned with the decisions in Griffiths v. J.P. Harrison (Watford) Ltd., [1963] A.C. 1, and Finsbury Securities Ltd. v. Inland Revenue Commissioners, [1966] 1 WLR 1402, with their inter- relationship and with the question whether Lupton's case fell within the precedent established by the one or the other case, said (AC p.658): "...What constitutes binding precedent is the ratio decidendi of a case and this is almost always to be ascertained by an analysis of the material facts of the case that is, generally, those facts which the tribunal whose decision is in question itself holds, expressly or implicitly, to be material."
45. It has also been analysed: (AC pp.658-59) "A judicial decision will often be reached by a process of reasoning which can be reduced into a sort of complex syllogism, with the major premise consisting of a pre-existing rule of law (either statutory or judge-made) and with the minor premise consisting of the material facts of the case under immediate consideration. The conclusion is the decision of the case, which may or may not establish new law--in the vast majority of cases it will be merely the application of existing law to the facts judicially ascertained. Where the decision does consititute new law, this may or may not be expressly stated as a proposition of law: frequently the new law will appear only from subsequent comparison of, on the one hand, the material facts inherent in the major premise with, on the other, the material facts which constitute the minor premise. As a result of this comparison it will often be apparent that a rule has been extended by an analogy expressed or implied."
46. To consider the ratio decidendi of a case we have, therefore, to ascertain the principle on which the case was decided. Sir George Jessel in Osborne v. Rowlett, [1880] 13 Ch. D. 774, remarked that 'the only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided'.
47. The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a precedent. In the process the ratio decidendi which the judges who decided the case would themselves have chosen may be even different from the one which C.R.No.2268 of 2008 (O&M) 19 has been approved by subsequent judges. This is because Judges, while deciding a case will give their own reasons but may not distinguish their remarks in a rigid way between what they thought to be the ratio decidendi and what were their obiter dicta, that is, things said in passing having no binding force, though of some persuasive power. It is said that "a judicial decision is the abstraction of the principle from the facts and arguments of the case." "A subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower application." The submissions of Mr. Venugopal that for the purpose of ratio decidendi, the question is not whether a subsequent Bench of this Court thinks that it was necessary or unnecessary for the Constitution Bench, or the earlier Bench to have dealt with the issue, but whether the Constitution Bench itself thought it necessary to interpret section 2 (oo) for arriving at the final decision has to be held to be untenable in this wide and rigid form." The above delineated principles of law are required to be kept in view before any reliance is placed upon a judgment of the Hon'ble Supreme Court. In Harjit Singh Uppal's case (supra), no question was raised or debated that all orders passed by the Rent Controller are appealable or not. The notifications in respect of orders which are appealable were not brought to the notice of the Hon'ble Court. The findings recorded have to be read in the context of the issues raised and decided. The order under challenge was an order of fixation of provisional rent passed during pendency of the eviction petition. Such order was challenged in an appeal against the final order of eviction. In terms of the notification dated 14.04.1947, an order of eviction is appealable. The court has held that the order of fixation of provisional rent could be challenged in appeal against the order of eviction. It was not a case, where only an order of fixation of provisional rent was subject C.R.No.2268 of 2008 (O&M) 20 matter of challenge. The Hon'ble Supreme Court has restored the order passed by the Appellate Authority while setting aside the order passed by this Court in a revision petition. The observations that the interlocutory order of fixation of rent is appealable is an obiter, as in the aforesaid case, an appeal was filed against the final order of eviction, wherein challenge was made to an interlocutory order passed during the pendency of the proceedings. Therefore, the judgment in Harjit Singh Uppal's case (supra) does not lay down any proposition of law that all orders passed by the Rent Controller are appealable.
The Full Bench of this Court in Daya Chand Hardayal Cloth Commission Agents case (supra) has examined the notifications issued by the State of Haryana and returned a finding that the notification dated 14.04.1947 is in force in terms of Section 22 of the Punjab General Clauses Act, 1898. By virtue of the said notification, the delegated legislation has provided that which of the orders passed by the Rent Controller would be appealable. The subsequent notifications are to determine the forum to hear appeals and not conferring or modifying the appealability of the orders, as conferred by the notification dated 14.04.1947. The finding recorded by the learned Single Judge in Sham Sunder's case (supra) that the notification dated 29.04.1976 was not brought to the notice of the Full Bench in Daya Chand Hardayal Cloth Commission Agents case (supra) does not materially change the ratio of the decision of the Full Bench. It has been held by the Hon'ble Full Bench that the notification of 14.04.1947 deals with the orders in respect C.R.No.2268 of 2008 (O&M) 21 of which appeal is maintainable. The notification dated 08.05.1978 issued under the Haryana Act is pari materia to the notification dated 29.04.1976. The said notifications deal with forum to entertain appeals only, whereas, which order can be appealed against is subject matter of the notification dated 14.04.1947 alone.
Therefore, we answer the questions framed by holding that in terms of the notification dated 14.04.1947, orders passed by the Rent Controller under Sections 4, 10, 12 & 13 alone are appealable in both the States of Punjab and Haryana and that all other orders passed by the Rent Controller are not subject matter of appeal. Orders other that the orders which are appealable, can be disputed only by way of a revision petition before this Court.
The revision petition be now placed before the learned Single Judge as per roster for the decision of the petition in accordance with law.
(HEMANT GUPTA)
JUDGE
29.05.2012 (A.N.JINDAL)
Vimal JUDGE