Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. On the scheme of the Act, it is clear lhat the preliminary step is to declare a vacancy. At this stage, an enquiry has to be made including an C enquiry involving at least two respectable neighbours. It is thereafter that the vacancy has to be notified and objections invited. This is followed by either dropping of the proceedings on the objections being upheld that there was no vacancy or by allotment to a tenant on finding the vacancy or in ordering a release of the building, in case a landlord was found entitled to have such a release under the Act. Therefore, the notifying of a vacancy is only a step in D the process of making an allotment of the building to a tenant. The Act contemplates that no building should be let out by a landlord except through the process of allotment by the Rent Control Authority. Since the order notifying a vacancy is only a step in passing the final order in a proceeding under the Act regarding allotment, it is clear that the same could be challenged E while challenging the final order, unless there is anything in the Act precluding such a challenge or conferring a finality to the order notifying a vacancy. It was held long ago by the Privy Council in Moheshur Singh v. The Bengal Government, (1859) 7 Moo Ind App 283 (302): "We are not aware of any law or Regulation prevailing in India which· renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not do so, of forfeiting forever the benefit of the consideration of th.e Appellate Court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing, whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities." r- r ACHAL MISRA v. RAMA SHANKER SINGH [BALASUBRAMANY AN, J.] In Sheonath v. Ramnath, (IO MIA 413) the Privy Council reiterated A that a party is not bound to appeal from every interlocutory order which is a step in the procedure that leads to a final decree. It is open on appeal from such final decree to question an interlocutory order.
12. This principle is recognized by Section 105(1) of the Code of Civil Procedure and reaffirmed by Order XLIII Rule (IA) of the code. The two B exceptions to this Rule are found in Section 97 of the Code of Civil Procedure, 1908, which provides that a preliminary decree passed in a suit could not be challenged in an appeal against the final decree based on that preliminary decree and Section 105(2) of the Code of Civil Procedure, 1908 which precludes a challenge to an order of remand at a subsequent stage while filing C an appeal against the decree passed subsequent to the order of remand. All these aspects came to be considered by this Court in Satyadhan Ghosal and Ors. v. Smt. Deorajin Debi and Anr., [1960] 3 SCR 590 wherein, after referring to the decisions of the Privy Council, it was held that an interlocutory order which had not been appealed from either because no appeal Jay or even though an appeal lay an appeal was not taken, can be challenged in an appeal D from a final decree or order. It was further held that a special provision was made in Section 105(2) of the Code of Civil Procedure as regards orders of remand where the order of remand itself was made appealable. Since Section l 05 (2) did not apply to the Privy Council and can have no application to appeals to the Supreme Court, the Privy Council and the Supreme Court E could examine even the correctness of an original order of remand _while considering the correctness of the decree passed subsequent to the order of remand. The same principle was reiterated in Amar Chand Butail v .. Union of India and Ors., AIR (1964) SC 1658 and in other subsequent decisions.
13. It is thus clear that an order notifying a vacancy which leads to the F final order of allotment can be challenged in a proceeding taken to challenge the final order, as being an order which is a preliminary step in the process of decision making in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. The decision in Ganpat Roy' s case, which has disapproved the ratio of the decision in Mis Tirlok Singh and Co., cannot G be understood as laying down that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the notifying of vacancy itself, in a revision against the final order of allotment. It has only clarified that even the order notifying the vacancy could be immediately and independently challenged. The High Court, H [2005) 3 S.C.R. A in our view, has misunderstood the effect of the decision of this Court in Ganpat Roy's case and has not kept in mind the general principles of law governing such a question as expounded by the Privy Council and by this Court. It is nobody's case that there is anything in the Act corresponding either to Section 97 or to Section I 05(2) of the Code of Civil Procedure, B 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case and in Smt. Kun} lata v. Xth Additional District Judge, Kanpur Nagar and Ors., (supra) that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenge the order notifying the vacancy would preclude a C successful challenge to the allotment order itself. In fact, the person aggrieved by the order notifying the vacancy can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter, to approach the High Court. It would really be a case of election of remedies.
14. We are, therefore, satisfied that the High Court was in error in allowing the Writ Petition solely on the ground that the landlord had not challenged the original order notifying the vacancies then and there. The· decision of the High Court in the Writ Petition, therefore, requires to be set E aside and the Writ Petition remanded to that Court for a fresh hearing and disposal in accordance with law, including the question whether the order notifying the vacancy was proper. It would also be necessary for the High Court to consider the effect of the cancellation of the order in favour of Respondent No. 2 considering the nature of the allotment made in his favour, even assuming that the High Court does not find any reason to interfere with F the order notifying the vacancy or with the order making the allotment. The appeal is hence allowed. The jttdgment of the High Court in the Writ Petition filed by the allottees is set aside and the Writ Petition is remanded to the High Court for a fresh disposal in accordance with law and in the light of the observations contained in this judgment. The High Court, it is hoped, will G expeditiously dispose of the Writ Petition afresh pursuant to this order of remand, in the circumstances of the case preferably within a period of six months of the receipt of a copy of this Judgment. I.A. NOS. 4 AND 5 of 2004
15. It appears that the respondents who are in occupation of the two ACHAL MISRA v. RAMA SHANKER SINGH [BALASUBRAMANY AN, J.] 45 J floors in the suit premises, have not paid rent since the beginning. They seem A to be taking advantage of the pendency of litigation, also of the landlord being not resident in India or in the city.
16. I.A. No.4 of 2004 is filed by the landlord seeking direction to the respondent-tenants to pay the rent of the premises during the pendency of litigation. I.A. No.5 of 2004 is filed for a direction to the respondents to B vacate the premises. Notice on the applications was issued to the respondents. On 5.4,2004, this Court directed respondent-tenants to pay the entire arrears of rent/damages within a period of two months from the date of the order and to continue to pay monthly rent/damages as and when it falls due. On 5.7.2004, the Court directed that any amount tendered by the respondent-tenant would C be accepted by the landlord without prejudice.
17. On 5.7.2004, respondent No.2-Raj Singh filed an affidavit-in- response stating that on 2.6.2004 he tendered a crossed cheque of Rs. l ,45,860 as rent for 26 years calculated on the basis of the annual value as stated in the assessment list of 1976, of the first floor of the premises in question D which is Rs.5, l 00, water tax Rs. 408 and drainage tax Rs. 102 making a total of Rs.5,610 per annum. However, the cheque was received back by respondent No. l as addressee-landlord was not available at the address given by him.
18. Respondent No. I-Rama Shanker Singh has stated that he is a tenant on the ground floor assesse4 at Rs.6,120 per annum whereas water tax is E Rs.489.60 and drainage tax is Rs.122.40 making a total of Rs.6,732 per annum. According to him he is a tenant since 14.11.1978 and with his letter . dated 15th May, 2004 he tendered a pay order in an amount ofRs.l,75,032 to the landlord. The pay order sent through registered post has been received back by him as undelivered to the addressee-landlord.
19. According to the landlord, the property is a valuable property situated in a prime locality of Lucknow city. The landlord has got the property valued through Snow Fountain Consultants, Architects and Valuers. The valuation report dated 17.7.2004 has been filed in the court, according to which the total rent of the property would come to Rs.28,496 per month.
20. This litigation is more than 25 years old. To allow the tenants to contest the case without payment of arrears and occupation charges falling due month by month would be travesty of justice. There are two proceedings pending between the parties: one is the present proceedings and the other is a suit for recovery of rent filed by· the landlord against the tenants.
21. We direct as under:- (i) Within a period of two months from today respondent No. I- Rama Shanker Singh, in occupation of the ground floor, shall tender an amount of Rs.3,50,000 through demand draft drawn on a scheduled bank in the name of the landlord and hand over the same to the counsel for the landlord. With effect from J .5.2005, month by month, or on or before the 15th day of that month, Rama Shanker Singh-respondent No. I shall pay an amount of Rs.1200 per month plus the amount of water tax and. drainage tax through bank draft drawn i.n the name of the landlord and c tendered either to the landlord or to her counsel. (ii) Within a period of two months from today respondent No.2-Raj Singh, in occupation 'of the first floor, shall tender an amount of Rs.3,oo;ooo by way of demand draft drawn on a schedule bank in the name of the landlord and hand over the same to the counsel for the landlord. With effect from 1.5.2005, month by month, on or before the 15th day of that mon_th, Raj Singh-respondent No.2 shall pay an amount of Rs. I 000 per month, plus the amount of water tax and drainage tax through bank draft drawn in the name of the landlord and tendered either to the landlord or to her counsel. (iii) This amount shall be treated as .a provisional payment but a condition precedent to their entitlement to contest the present proceedings. The amount so paid shall be liable to be adjusted consistently with the decree that may be passed by the competent Court for the recovery of the rent. (iv) Any respondent who does not comply with the above-said order, shall not be entitled to contest in the proceedings and shall not be entitled to be heard.
22. From the material available on record it does not appear that any rate of rent was appointed at which rent would be payable by the respondents G to the landlord. 'The respondents also do not seem to have taken any steps for fixation of rent of the premises in their occupation. They have been happy to have got the premises in a prime locality, occupying and enjoying the same for no payment. We make it clear that the respondents shall be liable to pay the rent equivalent to mesne profits with effect from the date with H which they are found to have ceased t_o pe entitled to retain possession of the ·—: -;im ACHAL MISRA v. RAMA SHANKER SINGH (BALASUBRAMANYAN, J.] premises as tenant and for such period the landlord's entitlement cannot be A held pegged to the standard rent. Reference may be had to the law laid down by this Court in Atma Ram Properties (P) ltd v. Federal Motors (P) ltd [2005] 1 sec 105.
23. The appeal is allowed. I.A. Nos. 4 and 5 are disposed of in the terms above said. The parties through their respective counsel are directed to B appear in the High Court on 2nd May, 2005. As it is long pending litigation, we request the High Court to give this matter a priority in hearing and decide the same as far as possible within a period of six months from 2.5.2005, the date on which the parties would appear in the High Court. K.K.T. Appeal allowed.