Skip to content


Behari Lal Vs. Mangat Ram Kohli - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 601 of 1957
Judge
Reported inAIR1964All36
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 7B; Code of Civil Procedure (CPC) - Order 9, Rules 8 and 9
AppellantBehari Lal
RespondentMangat Ram Kohli
Appellant AdvocateR.S. Pathak, Adv.
Respondent AdvocateS.K. Tewari, Adv.
DispositionAppeal dismissed
Excerpt:
.....- held, rightly dismissed under and fresh suit on the same cause is barred under order 9, rule 9,civil procedure code. - 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 act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are..........in respect of which the earlier suit had been dismissed for default but decreed the rest. the plaintiff appealed against the part of the decree dismissing his suit but the learned additional civil judge, dehra dun confirmed the view of the trial court. he has now come to this court in second appeal.3. only one point was urged before me--namely, that the trial court did not have a power of dismissal under order 9, rule 8, c. p. c. which an ordinary civil court enjoys. learned counsel for the appellant contended that the munsif while trying a suit arising out of an application under section 7b which has been converted into a plaint does not function as a civil court but as a special tribunal. therefore, the provisions of civil p. c. particularly order 9, rules 8 and 9, do not apply.4......
Judgment:

S.S. Dhavan, J.

1. This is a landlord's second appeal against the concurrent decisions of the Courts below dismissing a part of his suit for recovery of arrears of rent. The facts are these. The plaintiff-appellant Behari Lal filed an application under Section 7B of the U. P. (Temporary) Control of Rent and Eviction Act before the Munsif Dehra Dun for the ejectment of the defendant respondent Mangat Ram, his tenant, for non-payment of arrears of rent. The respondent filed an objection after depositing in Court the amount claimed in the notice. Thereupon the application was treated as a plaint and the necessary Court-fee was paid. The proceedings were treated as a suit and 5-7-1951 was fixed for the final hearing. On that date the plaintiff was absent but the defendant was present when the suit was called up. As the defendant had not admitted the claim, the trial Court dismissed the suit under Order 9, Rule 8, C. P. C.

2. Instead of filing an application under Order 9, Rule 9, C. P. C. for the setting aside of the dismissal order, the plaintiff filed a fresh suit in which he claimed, in addition to the rent already claimed in the dismissed suit, additional rent which had meanwhile accrued. The trial Court rejected the claim in respect of which the earlier suit had been dismissed for default but decreed the rest. The plaintiff appealed against the part of the decree dismissing his suit but the learned Additional Civil Judge, Dehra Dun confirmed the view of the trial Court. He has now come to this Court in second appeal.

3. Only one point was urged before me--namely, that the trial Court did not have a power of dismissal under Order 9, Rule 8, C. P. C. which an ordinary Civil Court enjoys. Learned counsel for the appellant contended that the Munsif while trying a suit arising out of an application under Section 7B which has been converted into a plaint does not function as a Civil Court but as a special tribunal. Therefore, the provisions of Civil P. C. particularly Order 9, Rules 8 and 9, do not apply.

4. I cannot agree. The proceedings under Section 7B consist of two stages. The first stage begins with the filing of an application for the ejectment of the tenant and ends when the landlord pays Court-fee on his application which is then treated as a plaint and the proceedings as a suit. The second stage begins with the disposal of the suit itself. No procedure is prescribed under Section 7B for the disposal of the suit. Evidently it was not considered necessary because it was assumed that a Civil Court hearing a suit arising out of a plaint on which Court-fee has been paid must follow the procedure prescribed by the C. P. C. It was argued before the lower Court that Section 7B merely enjoins that the application shall be 'treated' as a plaint, but this does not mean that it shall be deemed to be a plaint or becomes a plaint. The learned Judge rightly rejected this argument on the ground that there is hardly any difference between a document being treated as a plaint or being deemed to be a plaint. It is not necessary for me to discuss this argument in detail as it was not seriously pressed before me.

5. Learned counsel cited three decisions of other High Courts in support of his contention that the proceedings before the learned Munsif are not governed by the C. P. C. The first is a judgment of Ramaswami, J. in Fernandes v. Ranganaya-kulu, AIR 1953 Mad 236 in which it was held that the provisions of the C. P. C. do not apply to proceedings for the ejectment of the tenant under the Madras Buildings (Lease and Rent Control) Act. But the Madras Act, the provisions of which are not known, was described by the learned Judge as 'self-contained in regard to procedure', and he pointed out that the Act provided for bringing the legal representatives of the parties on record and awarding of costs. But Section 7B of the U. P. Act lays down no procedure for the hearing of a suit for the recovery of rent after the application for ejectment has been converted into a plaint. This decision affords no guide. The second is a judgment of a Division Bench of the then Travancore Cochin High Court in Janki Amma v. Krishna, AIR 1953 Trav Co. 37. It was held in that case that there was no right of appeal from a decision under the Travancore Naik Act which provides for the dissolution of marriage. It was observed that a right of appeal being a substantive right must be conferred by the statute which creates the proceedings. That point does not arise in this case.

The third is a decision of the Madras High Court in Koti Reddy v. Venkayya, AIR 1951 Mad 813 in which it was held that an Election Commissioner is not a civil Court within the meaning of the C. P. C. and did not therefore enjoy the power to set aside a final order passed under Order 9, Rule 7 on the ground that one of the parties was prevented by sufficient cause from taking part in the trial of the suit. A special rule provided that every election petition should be inquired into in accordance with the procedure applicable under the C. P. C. as nearly as may be. The learned Judges held that this did not confer the powers of setting aside a final order under Order 9, Rule 7. It is not necessary for me to agree or disagree respectfully with this decision as it was held that the Election Commissioner was not a civil Court but a persona designata. In the present case the earlier suit of the plaintiff was tried by a civil Court on a plaint on which the Court-fee had been paid. The C. P. C. will apply in its entirety. It was dismissed under Order 9, Rule 8 because the plaintiff was not present on the date of hearing. Therefore, a fresh suit on the same cause of action was barred under Rule 9.

6. The decision of the appellate Court was correct. This appeal is dismissed with costs.

7. Leave to appeal is refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //