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Saeed Ahmed Vs. Syed Qamar Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1642 of 1970
Judge
Reported inAIR1973All24
ActsEvidence Act, 1872 - Sections 16 and 114; Uttar Pradesh Rent Control and Eviction Act, 1947 - Sections 3 and 16
AppellantSaeed Ahmed
RespondentSyed Qamar Ali and anr.
Appellant AdvocateLalji Sinha, Adv.
Respondent AdvocateM.C. Agrawal, Adv.
DispositionAppeal dismissed
Excerpt:
..... (ii) authority of tehsildar - section 3 of u.p. rent control and eviction act, 1947 - tehsildar authorized by district magistrate to give permission to landlord to file suit of eviction against tenant. (iii) stay order - section 6 of u.p. rent control and eviction act, 1947 - order pending suit for eviction by state does not have any effect till it is communicated to landlord - commissioner does not have any power of review. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations..........plaintiff respondent was the landlord. 2. on 30-12-1967 the landlord obtained permission from the rent control and eviction officer to file a suit for eviction of the tenant. a revision was filed by the tenant before the commissioner and on 25-1-1968 pending the revision the commissioner stayed the operation of the order of permission. the landlord served a notice under section 106 of the transfer of property act terminating the tenancy. on 14-2-1968 the landlord filed a suit for eviction, recovery of arrears of rent and damages. it was alleged that the permission had been obtained from the rent control and eviction officer and the suit was maintainable. it was further alleged that a registered notice sent to the tenant by the jail address where he was detained was returned as refused,.....
Judgment:

K.B. Asthana, J.

1. This is a defendant tenant's appeal from a concurrent decree of his eviction from a shop of which the plaintiff respondent was the landlord.

2. On 30-12-1967 the landlord obtained permission from the Rent Control and Eviction Officer to file a suit for eviction of the tenant. A revision was filed by the tenant before the Commissioner and on 25-1-1968 pending the revision the Commissioner stayed the operation of the order of permission. The landlord served a notice under Section 106 of the Transfer of Property Act terminating the tenancy. On 14-2-1968 the landlord filed a suit for eviction, recovery of arrears of rent and damages. It was alleged that the permission had been obtained from the Rent Control and Eviction Officer and the suit was maintainable. It was further alleged that a registered notice sent to the tenant by the jail address where he was detained was returned as refused, while another notice sent to the tenant by his home address and redirected to the jail was acknowledged by the Superintendent of the Jail. It is not necessary to encumber this judgment by other allegations made in the plaint as nothing will turn on the same in this appeal. The defendant mainly contested on the pleas that no notice terminating his tenancy was served upon him; that the suit of the plaintiff was not maintainable as there was no subsisting permission on the date when the suit was filed that the permission granted by the Rent Control and Eviction Officer was set aside by the Commissioner by his order dated 10-12-1968, and that the Tahsildar not having been empowered to exercise the powers of the District Magistrate under Section 3 of the Rent Control Act the permission granted by him was invalid.

3. Both the courts below found that the notice under Section 106 of the Transfer of Property Act was duly served; that it was not established on record that the Tahsildar was not authorised by the District Magistrate under the provisions of the Rent Control Act and that the suit was maintainable as it was filed on the basis of a validly subsisting permission, the subsequent order of the Commissioner setting aside that permission was invalid being without jurisdiction. The suit of the plaintiff was decreed for eviction of the defendant from the shop and for recovery of arrears and damages.

4. The first point raised In support of the appeal was that the court below erred in presuming on the basis of the endorsement of refusal that the notice under Section 106 of the Transfer of Property Act would be deemed to have been duly served.

It was submitted that the endorsement of refusal on the inland letter containing the notice of termination not being initialled by the postman and there not being any other evidence that the postman actually took the registered letter to the defendant, the plaintiff on whom was the onus to establish service of the notice failed and he was not entitled to the benefit of presumption. I have perused Ext. 6 which is the inland letter sent by registered post by the jail address where the defendant was confined in January 1968. I find on the cover three endorsements of refusal at three different places, two are in red pencil and the one in ink. I find that below the endorsement of refusal in ink there is an initial but it does not bear any date. There is also an initial below one of the endorsements in red pencil. Therefore, it is incorrect to say that the endorsement of refusal does not bear any initial. The presumption would be that the initial was that of the postman and it was the postman who made the endorsement of refusal. It was then for the defendant to adduce evidence to rebut that and no such evidence had been adduced. The plaintiff was under no duty to produce the postman. The Court below in these circumstances rightly applied the ratio of the decision of the Full Bench in Ganga Ram v. Smt. Phulwati, 1970 All LJ 336 = (AIR 1970 All 446) (FB). In any view of the matter, I find from the record that the other notice which was redirected to the defendant to the jail has been acknowledged by the Superintendent of the Jail. I think that notice would be deemed to have been served on the defendant since he was confined as a prisoner of the Superintendent of Bareilly Jail and the presumption would be that the Superintendent must have given the letter to the defendant. This ground of attack fails.

5. The second ground raised was that the Commissioner having passed the order staying the operation of the permission on 25-1-1968, the permission granted by the Rent Control Officer would cease to subsist for the time being and the plaintiff could not competently file the suit on 14-2-1968. There is no evidence on record that the plaintiff had knowledge of the passing of the stay order by the Commissioner either based on the fact that it was passed in his presence or that it was officially conveyed to him. It is the settled law of this Court that a stay order passed by the State Government pending revision against an order granting permission is in the nature of an injunction restraining the landlord from filing a suit and it will take effect only from the date it is communicated and not from the date of its passing. The plaintiff not having received any communication or order of the Commissioner passed on 25-1-3968, the stay order will not take effect; the suit filed by the plaintiff on 14-2-1968, therefore, would be competent.

6. It was next urged in this connection that ultimately the Commissioner allowed the revision of the tenant and set aside the permission, the suit therefore became incompetent and could not be maintained as under Section 3 of the Rent Control and Eviction Act the suit filed by the landlord for eviction is always subject to order passed under Section 3 of the Act, the Commissioner's order being within the purview of that section. It has come in evidence that the Commissioner had at first dismissed the revision on 24-9-1968 and upheld the order of the Rent Control and Eviction Officer. The defendant tenant then made an application for review which the Commissioner entertained and on a reconsideration allowed the revision and set aside the order of permission by an order dated 10-12-1968 subsequent to the filing of the suit. There is no provision in the Rent Control and Eviction Act or the Rules made thereunder conferring any power of review on the Commissioner. It is the settled law that a review is a creature of statute and unless an authority, tribunal or court is expressly conferred by statute a power of review to entertain and grant relief, it cannot review its own orders. It is difficult for me to agree with the contention of the learned counsel for the defendant appellant that the power exercised by the Commissioner under Section 3 of the Rent Control Act is purely administrative. I think it is judicial or at any rate quasi-judicial. Even in cases of purely administrative orders which affect the civil rights of the parties there is a restriction on the exercise of powers for review or reconsideration of an order passed. An order once passed cannot be reconsidered or reviewed, set aside or modified unless the party affected by it is heard. Here of course, I am concerned with the question whether the application for review could be entertained by the Commissioner. The matter does not appear to be free from difficulty, but I think I cannot find fault with the view taken by the courts below as I am inclined to hold that the Commissioners or other authorities passing an order under the Rent Control Act ought to be discouraged from passing repeated differing orders on the same matter. I think the better view to take is that unless the Commissioner has been conferred expressly a power for review he cannot review the orders once passed by him. I, therefore, endorse the view taken by the courts below that the Commissioner having no jurisdiction to review his order dated 24-9-1968 dismissing the revision the subsequent order passed by him allowing the revision would be a nullity and the provisions of Section 16 of the Rent Control and Eviction Act would not be attracted. Some of the cases cited by the learned counsel for the appellant that of the Supreme Court and the High Court in support of his contention that in a civil suit the order passed by the Commissioner could not be collaterally attacked and declared in-valid, do not help him. All those decisions are based on the provisions of Section 16 of the Rent Control Act which are attracted only when any order is passed by the authorities under the provisions of that Act. Haying found that there is no power vesting in the Commissioner for reviewing his decisions under Section 3 of the Rent Control Act, the order passed by him on 10-12-1968 setting aside his previous order dated 24-9-1968 would fall outside the scope of his jurisdiction or authority conferred on him under the provisions of the Act This ground also fails.

7. The third ground raised was that the Tahsildar had no power or authority to grant permission under Section 3 of the Rent Control Act. The presumption is that official acts are always done in accordance with law. There is nothing wrong in the view taken by the Court below that the District Magistrate must have duly authorised the Tahsildar to grant permission under Section 3 to the landlord for filing suits for eviction of the tenants. However, the defendant did not adduce any evidence to prove the contrary. Moreover, as observed by the Court below in the revision before the Commissioner the authority of the Tahsildar was never challenged by the defendant. This ground also fails.

8. The result is that this appeal is dismissed but in the circumstances of the case I direct the parties to bear their own costs of this appeal.


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