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An appeal U/S.38 of Delhi Rent Control Act is not maintainable against an order of dismissal passed under Order IX Rule 13 CPC: High Court of Delhi

The application of the petitioner, though titled as one filed under Order IX Rule 13 of the Code, was one U/S 25B(9) of the Act and therefore, in terms of Section(s) 25A and 25B of the Act, any order passed thereon shall not be appealable under S.38 of the Act. The only remedy for the petitioner would be under S.25B(8) of the Act to this Court. This was held in BATA INDIA LIMITED V.  SMT. SARLA SHARMA (SINCE DECEASED) THROUGH LRS AND ORS [CM (M) 558/2020] in the High Court of Delhi by a single bench consisting of JUSTICE NAVIN CHAWLA.

Facts are that an Eviction Petition was filed by the respondent under S.14(1)(e) of the Act which was decided ex parte. Petitioner had filed an application under Order IX Rule 13 of the Code praying for setting aside of the eviction order passed ex parte but was dismissed on the ground of failure to comply with the conditions of deposit in terms of the prior order. The petitioner filed an appeal under S.38 of the Act before the learned Rent Control Tribunal against the order of dismissal of the application, maintainability of the same is the issue for consideration before the court.

The court made reference to Section 37 of the Act and also referred to  Rule 23 of the Delhi Rent Control Rules, 1959, which provides that in deciding any question relating to the procedure not specifically provided by the Act and the said Rules, the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code.

The court discussed the issue as to whether an appeal was maintainable against an order of the learned Rent Controller refusing to order eviction in a petition under Section 14(1)(e) the same was highlighted by the Supreme Court in the case of Vinod Kumar Chowdhry v. Smt Narain Devi Taneja, the following observations were made, “In the way of the above interpretation of sub-section (8) of Section 25-B, the provisions of sub-section (10) thereof do not pose a hurdle. All that sub-section (10) states is that the procedure for the disposal of an application for eviction covered by sub-section (1) shall be the same as the procedure for disposal of other applications by Controllers, except as provided in Chapter III- A. Sub-section (8) as interpreted by us governs an application covered by sub-section (1) of Section 25-B and expressly takes away the right of appeal or second appeal while providing the remedy of revision instead. As we have held the provisions of sub-section (8) to be exhaustive of the remedies available to a person aggrieved by an order passed by the Controller in applications triable under Chapter III-A, such applications fall outside the category of those which can be disposed of like other applications under sub-section (10) read with the provisions contained in other chapters of the Act.”

The court also made reference to the judgment passed by the Supreme Court in the case of Central Bank of India v. Shri Gokal Chand, and made the following observations, “..though the language of Section 38 of the Act may seem to suggest that an appeal lies against all or any order of the learned Rent Controller, however, no appeal would lie against any interlocutory order which are merely procedural and do not affect the rights and liabilities of the parties.”

Considering the facts of the case and keeping in mind the provisions of law applicable. The Court held that the eviction Petition to which the procedure prescribed under S.25B of the Act applies, an appeal under S.38 of the Act is not maintainable against an order dismissing an application under Order IX Rule 13 of the Code/S.25B(9) of the Act. The only remedy available to the aggrieved tenant is to file a petition U/S.25B(8) of the Act before the High Court. Thus dismissing the petition.

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