Gujerat Commercial Corporation v Dass and Others (Civil Appeal No. 539 of 1951) [1952] EACA 308 (1 January 1952)

### APPELLATE CIVIL

#### Before BOURKE, J.

# GUJERAT COMMERCIAL CORPORATION, Appellants (Original Applicants)

v.

## (1) LAZMAN DASS, (2) RULIA RAM, (3) BANTA SINGH, (4) KHUSAL SINGH, (5) NASIB CHAND SIBU, (6) RALA SINGH, (7) JAGATRAM, (8) GYAN SINGH, (9) JAWALA SINGH, (10) HUKAMRAM, Respondents (Original Respondents).

### Civil Appeal No. 539 of 1951

(Appeal from the decision of the Central Rent Control Board, Nairobi)

Landlord and tenant—Rent Control Board's power to revise its own decision given ex parte.

The appellant brought a case claiming possession and arrears of rent from a sub-tenant and other persons described as trespassers in occupation.

The Board after recording "Tenants absent served" proceeded ex parte to hear evidence and ordered vacant possession and payment of arrears of rent.

Six respondent occupiers applied to allow their case to be put forward and the Board granted an order to set aside the order for possession *ex parte*.

Held (13-6-52).—The Board has power to revise its ex parte decision.

Cases referred to: Dhondu Sonar v. Waman Patwardham (1927) I. L. R. 51, Bombay, 495; Sunder Singh v. Nighaiya (1925) I. L. R. 6 Lahore, 94, 97; Arjan Virdee v. Mechani & Others. C. A. No. 378 of 1951.

#### D. N. Khanna for appellants. $\mathcal{L}$

D. V. Kapila for respondents.

JUDGMENT.—The appellant corporation is the head tenant of premises to which the Increase of Rent (Restriction) Ordinance, 1949, applies. The appellant brought a case before the Central Rent Control Board seeking recovery of possession and arrears of rent from a sub-tenant named Nandlal and the other persons described in the pleading as trespassers in occupation.

The record of the hearing on 22nd November, 1950, contains the entry "Tenants absent—served", referring apparently to all the respondents to the application. The Board proceeded ex parte to hear evidence for the appellant and gave a determination ordering vacant possession to be rendered before 30th November, 1950, and payment of arrears of rent.

Then Mr. Kapila applied to the Board in writing on behalf of six of the respondent occupiers. The Board was so informed that these persons were making the case that the premises had been lawfully sublet to them by Nandlal and that they did not file a reply or appear because they received no intimation from the Board that they might enter a pleading or as to the date of the hearing. They were illiterate persons and made no inquiry for themselves though they knew the application had been lodged; they then discovered that the order sought had been made in their absence. The Board was also informed that four of the respondents, Nos. 1, 2, 3 and 8 on the application, were not residing on the premises. Application was accordingly made to the Board to allow these six respondents to put forward their case and to make the appropriate order after they had been heard.

On 25th January, 1951, the Board heard this application and granted the request by Mr. Kanila to set aside the order for possession *ex parte* so far as it affected his clients.

The advocate for the appellant merely argued that there must be a strong prima facie case made out before the order for possession was set aside and the case reopened. On this appeal, however, it is submitted that the Board had no power at all to set aside this order it had made and it must stand as the final determination of the tribunal. The Board, it is evident, was satisfied that there was merit in Mr. Kapila's complaint on behalf of the six occupiers and in regard to them it set aside the order for possession and reheard the case. In the event these occupiers were held to be lawful sub-tenants and not liable to eviction and the application against them was dismissed.

Both advocates have requested this Court to deal with the grounds in question of this course adopted by the Board before going, if need be, into the merits, and this I have agreed to do.

In the first place Mr. Kapila takes the preliminary point that it is not now competent for the appellant to question the order for setting aside and rehearing as he should have appealed against such order within the fixed period of 30 days. I do not think there is any substance in this. The decision of the Board to commence the proceedings anew so that the present respondents in occupation might be heard is not in itself a determination within section 7 of the Ordinance that can be appealed as such.

Now whether it is open to all to question the propriety of an order of this nature in an appeal from a determination under section $\overline{7}$ is, I think, open to very considerable doubt. The Courts have entertained appeals on points of procedure affecting a determination under section 7 where the course followed has been contrary to the principles of natural justice. In this case the Board was satisfied. I have no doubt for sufficient reason, that the respondents had good cause for failing to enter a pleading in defence and attending at the hearing. Clearly the Board was concerned in the interests of justice that they should be given the opportunity of being heard and putting forward their case. The Board accordingly took the course of setting aside the ex parte determination and entering into the full merits. Even if the Board can be said $\mathbf{t}$ have so acted under no legislative provision and the only remedy of the respondents as to the *ex parte* determination was to appeal against it instead of applying to the Board to set it aside, I am of opinion that the validity of the order, which did not affect the final determination on its merits (see Dhondu Sonar v. Waman Patwardhan, I. L. R. 51, Bombay (1927), 495), but enabled "the points in litigation to be decided on the merits, the ideal goal of all litigation" (Sunder Singh $v$ . Nighaiya, I. L. R. 6 Lah. (1925), 94, 97) cannot now be questioned under the provisions of section 7 of the Ordinance, which provides solely for appeal on any point of law or mixed fact and law against a determination of any question arising for decision under the provisions of the Ordinance. But were I not prepared so to hold I would consider myself bound by the judgment of Thacker, J., in Arjan Virdee v. Mechani and Others, C. A. No. 378 of 1951. In that case it does not appear to have been argued that there was no right of appeal against such an order and it was held that under section 9 (1) of the Ordinance the Board has the power conferred upon it to set aside an *ex parte* determination and go into the whole merits.

The grounds of appeal set out in paragraphs 1 and 2 of the memorandum fail for the reasons I have given. The appellant will in any event pay the costs of the appeal on these issues.