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Petitioner: MUHAMMAD IDRIS KHAN VS Respondent: HAJI ERFANUDDIN
P L D 1958 Dacca 132
P L D 1958 Dacca 132
Before: Hassan, J
MUHAMMAD IDRIS KHAN‑Petitioner
versus
Haji ERFANUDDIN‑Opposite‑Party
Civil Rule No. 155 of 1957, decided on 27th June 1957.
(a) Fraud‑Order obtained by practising fraud on Court --Court has inherent power to set it right.
No order obtained by practising fraud on the Court and on the parties should be allowed to stand on record. If it be allowed to stand, the Court will be a party to fraud and the parties will be encouraged to commit fraud which cannot be allowed under any circumstances.
(b) East Bengal Premises Rent Control Act (X11 of 1953), S. 29 (2) & (5) ‑ Contravention of provisions of subsection (5)‑No ground for allowing order obtained ay fraud to stand‑Provisions of Civil Procedure Code‑Applicable to Proceedings before Controller, District Judge and person or persons appointed under S. 29 (2).
The Civil Procedure Code is applicable to the proceedings before the Controller, the District judge and person or persons appointed under subsection (2) of section 29 of the East Bengal Premises Rent Control Act.
The fact that the application for review of an ex‑pane order, granting the land‑lord permission to sue the tenant for ejectment was made to a Rent Controller other than the one who passed the order beyond 30 days from the date of the order arid was in contravention of the provision of section 29 (5) of the East Bengal Premises Rent Control Act will not make any difference where the order has been fraudulently obtained from the Court by suppressing summons and in such a case the Rent Controller has inherent jurisdic tion to set aside such order and restore the case to file.
C. Choudhury for Petitioner.
Nurul Huda for Opposite‑Party.
JUDGMENT
HASSAN, J.‑This Rule is directed against the order of the learned District Judge, Tippera, dismissing an appeal preferred against the order passed by the House‑Rent Controller in House‑Rent Control Case No. 18 of 1956, on a petition by the opposite party for review on 13th September 1956. It appears that the petitioner landlord filed an applica tion before the House‑Rent Controller for permission to sue the opposite party tenant for eviction on the ground that the suit remises were required for his own use and occupation and that the opposite party had been a habitual defaulter. The learned House‑Rent Controller allowed the application ex‑ parte on 1st of September 1954. Being clothed with the order, the petitioner filed a suit for ejectment which suit was also decreed ex‑parte. It is stated by the petitioner that in execution of the said decree the petitioner got delivery of possession of the premises but the opposite party filed two applications one before the Civil Court for setting aside the exparte decree in ejectment and Rent Controller for review of the ex‑parte order of 1st December 1954. On the ground of fraud , non service of summons, etc. The Civil Court granted the application and set aside ex-parte decree and restored the suit to file. The House-Rent Controller, however dismissed the application holding that was a fit case in which discretion might be used to avoid hardship to the land‑lord, that the Court had jurisdiction to entertain the petition, that no notice was served on the tenant by the landlord but, as the tenant was a habitual defaulter he did not interfere with the order passed by the House‑Rent Controller on 1st of December 1954. On appeal by the tenant; the lower Appellate Court held that was secured by the landlord by means of fraud practised upon the House-Rent Controller and on the tenant and, as such, the order was null and void; that the House‑Rent‑Controller has jurisdiction to entertain the application and to set aside the order and that merely because there were arrears of rent that did not allow a null and void order to remain on record but it should be set aside and parties should be given sufficient opportunity to prove their cases. In this view of the matter, the learned District judge set aside the order of the House‑Rent Controller giving permission to sue for eviction and restored the case to file. Hence the present Rule.
Mr. N. C. Chowdhury, the learned Advocate for the petitioner, contends only one point that in view of the fact that the allegations in the petition for review by the tenant before the Rent Controller did not bring the case under subsection (5) of section 29 of the East Bengal Premises Rent Control Act (XVI of 1953) and that the application was made beyond 30 days and that the application was filed before a Controller other than the Controller who passed the order, the lower Appellate Court had no jurisdiction to set aside the order of the Rent Controller and restore the applica tion for permission to sue for ejectment to file. It is no doubt true that the application was not filed within 30 days as provided by the Act nor before the same person, that is, the same Controller who passed the order giving the permission to the landlord 'to sue the opposite party for ejectment and the allegations in the petition do not come under the provisions of subsection (5) of section 29 of the East Bengal Premises Rent Control Act, yet the finding of both the Courts below is to the effect that the landlord fraudulently suppressing the summons and by practising fraud obtained the ex-parte order form the Rent Controller: This being the finding, I think the Rent Controller inherent jurisdiction to set aside such order and restore the inherent jurisdiction to set aside such order and restore the application file. No order obtained by practising fraud on the Court and on the parties should be allowed to stand on record. If it be allowed to stand, in that case the Court will be a party to fraud and the parties will be encouraged to commit fraud which, in my opinion, cannot be allowed under any circumstances.
Mr. N. Chowdhury contends that the House Rent Control Act is self‑contained and the case should be governed by it and no recourse can be taken to the Civil Procedure Code. He further states that the application of the Civil Procedure Code in a proceeding before the Rent Controller has been provided for in the Act in certain circumstances, namely, under subsection 2 of section 6 of the House Rent Control Act and under Rule 11 made under the Act. Subsection (2) of section 6 runs as follows
"The Controller shall, subject to any rules made under this Act, and, in so far as such powers are necessary for carrying out the provisions of this Act, have power to summon and enforce the attendance of witnesses and to compel the production of documents by the same means and, so far as may be, in the same manner as is provided in the case of a Court by the Code of Civil Procedure 1908."
and Rule 11 made under the Act runs as follows:‑
"In reviewing orders referred to in subsection (5) of section 29 of the Act, the procedure laid down in Order XLVII of the First Schedule to the Code of Civil Procedure, 1908, shall be followed as far as may be and no application for review shall be entertained unless it is made within thirty days from the date of the order for the review of which such application is made,"
Subsection (5) of section 29 of the Act runs as follows:
"Subject to such rules as may be made under this Act, any order passed under this Act by the Controller or a District judge or a person appointed under subsection (2) may be reviewed by the person who passed the order on the ground of the discovery of any new and important matter or evidence or on account of some mistake or error apparent on the face of the record or for any other sufficient cause.
Relying on these provisions, the learned Advocate for the petitioner, contends that by rule 11 only Order XLVII of the Code of Civil Procedure has been made applicable and by subsection (2) of section 6 the Civil Procedure Code has been made applicable only‑to summon and enforce the attendance of witnesses and to compel the production of documents by the same means and, so far as may be, in the manner as provided by the Code of Civil Procedure. If we look to the rules, we find from rule 4 the following provision:
"In the matter of summoning and enforcing the‑ attendance of witnesses and compelling the production of documents in inquiries, the Controller shall, so far as may be, follow the procedure laid down in that behalf in the Code of Civil Procedure, 1908, with such modifications as the circumstances may require."
Rule 5 further provides procedure for inquiries, which runs as follows‑‑
"In making inquiries under the Act the Controller, the District judge or person or persons appointed under sub section (2) of section 29 of the Act, shall follow, as nearly as may be, the procedure laid down in the Code of Civil Procedure, 1908, for the regular trial of suits, the substance only of the evidence being recorded as in non‑appealable cases."
Mr. Choudhury did not refer to rule 5. From rule 5, it appears that in making inquiries under the Act, the Rent Controller, the District Judge or person or persons appointed under subsection (2) of section 29 of the Act shall follow, as nearly as may be, the procedure laid down in the Code of Civil Procedure, 1908, for the regular trial of suits. From these sections and rules, it appears that Civil Procedure Code has been made applicable for the purpose of summoning, service and production of documents, for review, and also making inquiries under the Act by the Controller, District judge or person or persons appointed under subsection (2) of section 29. In my opinion, having in view the aforesaid provisions of law, the Civil Procedure Code is applicable in the proceedings before the Controller, the District judge or person or persons appointed under subsection (2) of section 429 of the Act and, moreover, when a fraud is committed on a Court, the Court has inherent power to set it right. It is beyond conception that though an order has been obtained by practising fraud' on Court the Court shall not have power to set it right which is against the fundamental principles of law and also against the provisions in the Act and the rules made thereunder. Hence, I find that in the present case the Controller had inherent jurisdiction to set aside tile order complained of and restore the application for permission to sue to file and the learned judge was perfectly justified in holding so.
In the result, the Rule is discharged with costs and the order of the learned District judge is affirmed.
Z. A. S.
Rule discharged.