# Ali Khan v. Mirza Wahid Beg and another - **Citation:** High Court of Judicature at Allahabad #39669 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2000 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ali-khan-v-mirza-wahid-beg-and-another-39669 - **Pages:** 5 ## Text 38 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 in the lease deed and thirdly, the lease is forfeited by the lessor on the ground that the lessee has not complied with the terms of payment of rent as contained in the lease deed. 6. In Sardar Kartar Singh v. Smt. Phoolwati. AIR 1961 Allahabad 95, it has been held that section 114 of the Transfer of Property Act applied to the cases where the forfeiture relied upon by the plaintiff is one incurred under the terms of the lease. The scope of section 114 was explained in Riyasat Ali Khan v. Mirza Wahid Beg and another. AIR 1966 Allahabad 165, observing that the right of forfeiture is limited to cases where the tenant is guilty of some kind of misconduct as for example non-payment of rent. Section 114 enables the court to grant the tenant relief against forfeiture for non-payment of rent. It applies to those cases where the land lord invokes his rights under a forfeiture clause under the agreement and determines the lease by the forfeiture and sues to eject the tenant on the ground of forfeiture of lease. 7. Learned counsel for the petitioner has placed reliance upon the decision Surjeet Singh v. Additional District Judge, Haridwar and others, 1994 AWC 17, where the court granted relief against eviction where the tenancy was forfeited on the ground of nonpayment of rent. This case has no application, as in this case there was an agreement of forfeiture of lease on the ground of nonpayment of rent. 8. The petitioner has annexed a copy of rent note as Annexure-1 to the writ petition. In this rent note there is no forfeiture clause. It only states that the tenant shall be liable to pay rent at the rate of Rs. 200/- per month and after the expiry of the period of lease he will hand over possession to the land lord. The tenant paid the rent for the entire period of 11 months and there was no occasion to forfeit the lease on this ground. 9. The learned counsel for the petitioner further submitted that the plaintiff-respondent had sent notice terminating the tenancy under section 106 of the Transfer of Property Act and subsequently another notice under section 111 of the said Act. The termination of tenancy in both ways did not make any difference as regards the right of the plaintiff of treat the tenancy as determined under section 111 of the Transfer of Property Act. The tenancy can be determined on various grounds mentioned under section 111 of Transfer of Property Act. The tenancy can be determined under clause (a) by efflux of time limited thereby, by forfeiture under clause (g) and by serving a notice determining the tenancy or to quit under clause (h) of section 111 of the Transfer of Property Act. The plaintiff determined the tenancy under section 106 of the Transfer of Property Act and also issued another notice indicating that the tenancy has come to an end by efflux of time. The notice sent by the plaintiff did not indicate that the tenancy has been forfeited on account of non-payment of rent. The provisions of Section 114 of the Transfer of Property Act were, in these circumstances, not applicable in the case of the petitioner. 10. No other point has been pressed. I do not find any merit in the writ petition. It is accordingly dismissed. The parties shall , however, bear their own costs. $33(//$7( -85,6',&7,21 $33(//$7( -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' '$7(' $//$+$%$' %()25( %()25( 7+( +21 %/( 86 75,3$7+, 7+( +21 %/( 86 75,3$7+, - - )LUVW $SSHDO )URP 2UGHU 1R RI 'LQHVK 6LQJK $SSHOODQW5HVSW 9HUVXV 'LVWULFW -XGJH *KD]LSXU DQG DQRWKHU 5HVSRQGHQW 2ALL Dinesh Singh V. District Judge, Ghazipur and another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y the Court 1. This First Appeal From Order has been preferred under Order XLIII Rule 1 (d) C.P.C. against the order dated 6.8.1994 passed by the District Judge, Ghazipur acting as Motor Accident Claims Tribunal, rejecting the application of the appellant under Order IX Rule 13 C.P.C. 2. The learned counsel for the respondent no.2 raised preliminary objection regarding maintainability of appeal. 3. Heard the learned counsel for the parties on the question of maintainability of appeal. 4. The facts giving rise to this First Appeal From Order are that the respondent no.2 filed Motor Accident Claim Petition No. 31 of 1989 in the Court of Motor Accident Claims Tribunal/District Judge, Ghazipur, for grant of compensation on account of death of Smt. Bigni Devi in a motor accident, which took place on 5.5.1989 at 1.00 P.M. by vehicle no. DEP 3099. Notices to above claim petition were served on the appellant. He appeared before the Tribunal on 12.2.1992 but absented thereafter. Therefore, the Tribunal proceeded ex parte, vide order dated 26th November, 1992, The claimant adduced evidence and on considering his evidence, the Tribunal awarded a sum of Rs. 18,000/- as compensation against the appellant payabale alongwith interest at the rate of Rs. 9% per annum from 27.2.91 to the date of actual payment, vide judgement/award dated 7.1.1992. 5. The appellant on 28.10.1993 moved an application under Order IX Rule 13 C.P.C. for setting aside the above ex parte award on the grounds that petition was filed showing wrong parentage of appellant and he was not served with the notice. He came to know about the ex parte award only on 24th October, 1993. 6. The above application was registered as Miscellaneous Case No.238 of 1993. The Tribunal found that there was no sufficient ground for allowing the application. Consequently, it rejected it, vide order dated 6.8.1994. 7. Aggrieved with the above order, the appellant has come up in this First Appeal From Order. 8. The learned counsel for the respondents contended that appeal against award is provided under section 173 of Motor Vehicles Act, 1988, but this appeal has not been preferred against the award, but against the order rejecting the application for setting aside ex parte award, under order 43 Rule 1 (d) C.P.C. That the proceeding arose under Motor Vehicles Act, which is self contained Act. Under Motor Vehicles Rules, 1988 the provisions of Order 43 Rule 1 C.P.C. have not been made applicable to the proceedings 40 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 under Motor Vehicles Act and therefore, there is no provision under Motor Vehicles Act or Rules to prefer an appeal against the order rejecting the application for setting aside ex parte award and therefore, the appeal is incompetent. 9. On the other hand, the learned counsel for the appellant contended that since the provisions of Order 9 C.P.C. are applicable to the Motor Accident Claims Tribunal and therefore, remedy of appeal provided under C.P.C. against the rejection of application under Order 9 is also available. 10. It has been laid down in a catena of decisions of the Supreme Court and other High Courts that appeal, review or revision are creation of statute and no one has got inherent right to prefer an appeal, revision or review if it is not provided in the statute. Section 173 of Motor Vehicles Act, which provides appeals reads as under:- "(1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court." 11. "Award" occurring in section 173 means award given under section 168 of Motor Vehicles Act i.e. after giving the parties an opportunity of being heard, holding an enquiry into the claims, or as the case may be, each of the claims, and subject to the provisions of section 162 made an award determining the amount of compensation, which appears to it to be just and specifying the person or persons to whom compensation shall be paid. Admittedly, the order against which this appeal has been preferred is not an "award". 12. Rule 221 of U.P. Motor Vehicles Rules, 1998 as well as Rule 21 of the Accident Claims Tribunal (U.P.) which make certain provisions of C.P.C. applicable to the proceedings under Motor Vehicles Act read as under :- "The following provisions of the First Schedule to the Code of Civil Procedure, 1908. Shall so far as may be, apply to proceedings before the Claims Tribunal, namely, Rule 9 to 13 and 15 to 30 of Order V, Order IX, Rules 3 to 10 of Order XIII, Rules 2 to 21 of Order XVI, Order XVII, and Rules 1 to 3 of Order XXIII." 13. The above Rules does not make Order XLIII Rule 1 C.P.C. applicable to a proceeding before Claims Tribunal. No doubt, provisions of Order IX of C.P.C. have been made applicable to the proceedings before Claims Tribunal and the appellant has admittedly availed that provisions before the Tribunal itself. Since, Order XLIII Rule 1 has not been made applicable by the statute to the proceedings arising before Claims Tribunal, no appeal lies against an order rejecting an application under Order IX Rule 9 or Rule 13 C.P.C. in respect of a proceeding arising out of Motor Accident Claims. 14. A Division Bench of this Court in a recent decision in Lallu Bharati vs. Anwar, 1998 (2) T.A.C. 9 (All) has clearly held that appeal filed against an order dismissing restoration application is not maintainable. A similar question was referred to the Full Bench of this Court in the case of Smt. Shivraji and others versus Dy. Director of Consolidation, Allahabad and others, 1997 (88) R.D., 562 as to whether it is open for the Consolidation Authorities to review/recall their final orders exercising inherent powers even though the U.P. Consolidation of Holdings Act, 1953 does not vest with them any review jurisdiction. The Full Bench held that it is not open for the Consolidation Authorities to review/recall their final orders passed in a proceeding under the U.,P. Consolidation of Holding Act in exercise of inherent powers, as there is no provisions for review in U.P. Consolidation of Holdings Act 2ALL Diwan Singh and another V. Sub Divisional Magistrate and others 41 and the powers of review has to be specifically conferred and unless there is a provision in the Act permitting initiation of such proceedings, no review lies. 15. It was contended that even if there is no specific provision for appeal against an order rejecting the application for restoration of proceedings for setting aside ex parte award under Motor Vehicles Act, the Court can entertain appeal in its inherent jurisdiction. But powers of appeal, review or revision, if not specifically provided under the Statute, cannot be assumed under inherent powers of the Court. 16. In this way, the appeal in incompetent and is not maintainable. The appeal is, accordingly, dismissed with costs. 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' '$7(' $//$+$%$' %()25( ()25( 7+( +21 %/( %,12' .80$5 52< - 7+( +21 %/( %,12' .80$5 52< - 7+( +21 %/( /$.6+0, %,+$5, - 7+( +21 %/( /$.6+0, %,+$5, - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI 'LZDQ 6LQJK DQRWKHU «3HWLWLRQHUV 9HUVXV 7KH 6XE 'LYLVLRQDO 0DJLVWUDWH %DJKHVKZDU 'LVWULFW $OPRUD 2WKHUV «5HVSRQGHQWV &RXQVHO IRU WKH 3HWLWLRQHUV 6KUL 6 1DLWKDQL 6KUL /31DLWKDQL 6KUL 3L\XVK 6KXNOD &RXQVHO IRU WKH 5HVSRQGHQWV 6& 6KUL 6-