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Asharfi Lal Vs. Vaid Mohan Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3437 of 1963
Judge
Reported inAIR1970All125
ActsUttar Pradesh Temporary Control of Rent and Eviction Act, 1947 - Sections 3, 3(3), 3(4), 7F and 16; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantAsharfi Lal
RespondentVaid Mohan Lal
Appellant AdvocateS.P. Gupta, Adv.
Respondent AdvocateP.K. Misra, Adv.
DispositionAppeal allowed
Excerpt:
.....for the revocation of the suit - question of validity - held, does not cease to be maintainable - state government has power to revoke the grant of permission under section 3 of the act - gets exhausted once the suit has been validly instituted. (ii) civil - jurisdiction - section 9 of the code of civil procedure, 1908 - order of the commissioner final and express prohibition in the act - held, no jurisdiction. - 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..........ejectment in terms of a compromise filed by the parties' counsel. the tenant then went up to the state government under section 7-f of the act. he challenged the validity of the compromise. the state government cancelled the commissioner's order on 21st october, 1961. in the meanwhile, on 7th january, 1961, the plaintiff had filed the present suit. in defence, it was pleaded that the permission granted by the commissioner having been revoked by the state government the suit was not maintainable. the validity of the notice to quit was also contested. the trial court held that the state government's order did not affect the maintainability of the suit. it was validly instituted because the commissioner's permission was in operation on the date of the institution of the suit. the notice.....
Judgment:

Satish Chandra, J.

1. The plaintiff-appellant came to Court for the ejectment of the defendant and for recovery of arrears of rent.

2. The plaintiff was the landlord of the accommodation in dispute of which the defendant was a tenant on Rs. 12.50 p. m.The plaintiff applied for permission under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter called the Act). The Rent Control Officer after hearing the parties rejected this application on 15th April, 1960. The plaintiff preferred a revision. The Commissioner decided it on 11th July, 1960, and granted the requisite permission to sue the tenant in ejectment in terms of a compromise filed by the parties' counsel. The tenant then went up to the State Government under Section 7-F of the Act. He challenged the validity of the compromise. The State Government cancelled the Commissioner's order on 21st October, 1961. In the meanwhile, on 7th January, 1961, the plaintiff had filed the present suit. In defence, it was pleaded that the permission granted by the Commissioner having been revoked by the State Government the suit was not maintainable. The validity of the notice to quit was also contested.

The trial Court held that the State Government's order did not affect the maintainability of the suit. It was validly instituted because the Commissioner's permission was in operation on the date of the institution of the suit. The notice to quit was held valid. The suit was, therefore, decreed for ejectment and recovery of the arrears of rent. The defendant-tenant went up in appeal. The appellate Court held that the ultimate order passed by the State Government was the only effective order. Consequently the plaintiff had no permission to sustain the suit. It dismissed the suit for ejectment, but decreed the relief for arrears of rent.

3. Aggrieved, the plaintiff has come to this Court in second appeal. In Bhagwan Das v. Paras Nath, 1968 All WR (HC) 713 (SC) the Supreme Court has held that the Commissioner's order under Section 3 (3) of the Act remains effective notwithstanding its cancellation by the State Government, provided the State Government's order is passed after the institution of the suit. The present suit was, therefore, maintainable, and liable to be decreed on the basis of the Commissioner's order granting permission.

4. Mr. H. N. Seth for the respondent sought to challenge the correctness of the Commissioner's order. For the appellant Dr. Gyan Prakash raised an objection that in view of the provisions of the Act, the order of the Commissioner could not be called in question in a Civil Court. He relied on Sections 16 and 3 (4) of the Act Section 16 provides that no order made under this Act by the State Government or the District Magistrate shall be called in question in any Court. This provision does not mention the Commissioner. It cannot, therefore, be said that there is any express exclusion of the Court's jurisdiction to adjudicate the correctness of an order made by the Commissioner. Section 3 (4) of the Act states that the order of the Commissioner under Sub-section (3) shall, subject to any order passed by the State Government under Section 7-F, be final. Under this provision, the order of the Commissioner would be final so far as the Civil Courts are concerned. Under Section 7-F, the State Government can make such order as may appear to it necessary in the ends of justice. It can look into the propriety, correctness or legality of the Commissioner's order.

5. The true import and effect of statutory provisions, which expressly or by necessary implication exclude the jurisdiction of the Civil Court, was considered at length by the Supreme Court in Dhulabhai v. State of Madhya Pradesh, : [1968]3SCR662 . After considering the various decisions of the Privy Council and the Supreme Court Hidayatullah. C. J., laid down the following principles:--

'1. Where the statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

2. Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with action in Civil Courts are prescribed by the said statute or not.

3. Challenge to the provisions of the particular Act as ultra vires cannot be brought before tribunals constituted under that Act Even theHigh Court cannot go into that question on a revision or reference from the decision of the tribunals.

4. When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

5. Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.

6. Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and 'a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

7. An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.'

6. In the present case though there is no express bar to the jurisdiction of the Court, yet the statute attaches a finality to the order of the Commissioner. The present case would, therefore, be governed by the principles enunciated in paragraphs 1 and 6 mentioned above. The Civil Courts would be entitled to see whether in making the impugned order, the statutory authority complied with the provisions of the statute or whether it acted in conformity with the fundamental principles of judicial procedure. The jurisdiction of the Civil Courts would be barred if it is found that the scheme and machinery of the Act provides adequate or sufficient remedy to the person aggrieved against the impugned order.

7. The Act places restrictions on the right of the landlord to evict a tenant from an accommodation, on termination of his tenancy. He cannot sue for the ejectment of the tenant without the permission of the District Magistrate unless he makes out one or the other ground mentioned in Section 3 of the Act. The order of the District Magistrate on an application for such a permission is subject to the orders that may be passed by the Commissioner in revision. In turn, the order of the Commissioner has been made subject to the jurisdiction of the State Government which can also go into facts, and pass an appropriate order. The Act, therefore, provides an heirarchyof authorities to adjudicate upon and determine the rights and liabilities of the parties in relation to the question of ejectment of a tenant from an accommodation. Prima facie, the Act provides a remedy against the orders of the Commissioner, and the constituted authority, namely the State Government, could determine the said rights or liabilities just as the Civil Courts would do.

8. But the remedy provided by the Act ought to be adequate or sufficient. If the remedy is, by reason of the inter-action of the provisions of the Act, nugatory or illusory, it cannot be said that the Act in substance or in reality gives any relief.

9. In 1968 All WR (HC) 713 (SC) the Supreme Court has held that a suit validly instituted after obtaining the requisite permission does not cease to be maintainable even if the State Government revokes' it after the institution of the suit. If the, State Government revokes the permission granted before the institution of the suit, then there would be no valid permission to sue and the suit would become incompetent. In other words, the State Government's power to revoke the grant of permission under Section 3 of the Act gets exhausted, once the suit has been validly instituted. In that respect, the Supreme Court overruled the Full Bench decision in Bashi Ram v. Mantri Lal : AIR1965All498 .

10. In a subsequent decision in Purshottam Das v. Smt. Raj Mani Devi, 1968 All LJ 1023 (SC) the Supreme Court approved its decision in the case of Bhagwan Das. 1968 All WR (HC) 713 (SC) (supra) but held that if even after the institution of a suit for ejectment based upon a permission granted by the District Magistrate, the Commissioner revokes it but that order of the Commissioner is cancelled by the State Government, the permission granted by the District Magistrate revives and a suit which was pending when the State Government's order became effective, could be decreed.

11. The result of both these decisions of the Supreme Court appears to be that if the Commissioner grants permission to sue and thereupon a suit is instituted, an order of the State Government passed after the institution of the suit revoking the permission is ineffective. In such case the power of the State Government itself becomes exhausted after the institution of the suit, and the competence of the suit remains unaffected. Thus, even though the statute provides a remedy to the tenant against the order of the Commissioner granting permission, the event of the filing of the suit renders it illusory. The tenant gets no real relief under Section 7-F. The purpose of attaching finality to the order of the Commissioner by Section 3 (4) apparently was the existence of an effective remedy under Section 7-Pat the hands of the State Government. But, if in a given class of cases the remedy against an order is infructuous, much less adequate, the attachment of finality would not preclude the Civil Courts from adjudicating upon its validity or correctness.

12. Here, the tenant feeling aggrieved against the order of the Commissioner granting the permission, went to the State Government under Section 7-F. The State Government in the interests of justice cancelled the order of the Commissioner; but, in view of the decisions of the Supreme Court the State Government's order provides no relief at all to the tenant. The Commissioner's order continues to be operative and binding between the parties. The tenant-appellant can hence legitimately require the Civil Court to go into the validity of that order.

13. Mr. H.N. Seth contended that the Commissioner in acting upon the compromise did not comply with the provisions of the Act and also did not act in conformity with the fundamental principles of judicial procedure, because he acted upon a compromise signed and verified by the counsel for the tenant who had no authority to do so. No provision of the Act expressly or by an implication authorises the Commissioner to decide the revision on the basis of a compromise made by a person who is not a party or his duly authorised agent. The action of the lawyer appearing for the appellant being without authority was not at all recognisable by the Commissioner. It was also urged that in view of the language of Section 3 (3), which confers jurisdiction on the Commissioner, the Commissioner could not in law decide the revision merely on the basis of a compromise entered into between the parties after the date of the order of the District Magistrate. He was obliged to look into the propriety, correctness and legality of the order passed by the District Magistrate and base his decision exclusively on such grounds.

14. The defendant tenant engaged one Sri T.J.K. Ayyer, Vakil, as his counsel before the Rent Control and Eviction Officer. The counsel concerned filed a vakalatnama (power of attorney) duly signed by the tenant Mohan Lal. The vakalatnama authorised the counsel to do various kinds of acts in that case. It expressly authorised him to compromise the case. The vakalatnama, authorised the counsel to act for the appellant till the conclusion of the case.

15. For the appellant it was urged that firstly the revision before the Commissioner was a continuation of the case initiated before the Rent Control and Eviction Officer and so the vakalatnama in favour of Mr. Ayyer enured in his favour in the revision also, especially when by awriting signed by him, Mr. Ayyer informed the Commissioner that he was appearing for Mohan Lal in the revision also. In the next place it was urged that all counsel in India have an inherent and implicit power to compromise the case on behalf of their clients and even if the vakalatnama be deemed not to be available in the revision, Mr. Ayyer had the requisite and the necessary authority in himself to compromise the case without specific instructions or authority from, his client.

For the respondent, Dr. Gyan Prakash placed reliance upon the Full Bench decision of Nagpur High Court in Jiwibai v. Ramkuwar Shriniwas, AIR 1947 Nag 17 (FB). The Full Bench held that counsel in India, whether Barristers, Advocates, or pleaders, have inherent powers, both to compromise claims, and also to refer disputes in Court to arbitration, without the authority or consent of the client, unless their powers in this behalf have been expressly countermanded; and this rule applies whether the law requires a written authority to 'act' or 'plead' or not. But, I am afraid, I cannot give effect to this Full Bench decision, because, a Full Bench of our Court has ruled to the contrary. In Jang Bahadur Singh v. Shankar Rai, (1891) ILR 13 All 272 (FB) it was held that an advocate of the High Court has by virtue of his retainer and without need of further authority full power to compromise a case on behalf of his client; but, the Bench specifically observed at page 277 that when the authority of vakils to bind their clients is called in question that authority must depend entirely on the terms of the particular vakalatnama. That would indubitably suggest that vakils were not recognised to have any inherent power to compromise the case on behalf of the client. Mr. Ayyer signed the vakalatnama as well as his memorandum of appearance as a vakil. There is nothing to suggest that he was an advocate of the High Court. He could not, therefore, claim any inherent powers.

16. For the plaintiff-appellant it was also urged that in view of the decision of the Lahore High Court in Rasul Shah v. Diwan Chand, AIR 1936 Lah 583 that an appeal is a continuation or a stage in the progress of the suit and the power of attorney would continue to govern the purpose in appeals. The vakalatnama executed by the tenant-appellant in favour of Mr. Ayyer before the Rent Control and Eviction Officer would govern him in the revision pending before the Commissioner, especially when Mr. Ayyer informed the Commissioner that he was appearing for the appellant in the revision. Mr. Seth countered this submission and argued that the Lahore case is based upon an interpretation of Order III, Rule 4, Civil P. C. Clause (3) of that Rule 4 expressly by a fietion makes an appeal from any decree or order in the suit or an application or an act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into the Court in connection with the suit, to be proceedings in the suit. That would suggest that that is not the general rule. The Code of Civil Procedure is not applicable to the proceedings under the U. P. (Temporary) Control of Rent and Eviction Act. The deeming provision in Sub-rule (3) of Rule 4 of Order III, Civil P. C., would not govern the power of attorney filed by a counsel in proceedings under this Act. It was further submitted that even under the deeming clause a revision is not included, even though the Code of Civil Procedure itself provides for a revision; and so, a vakalatnama filed in the suit shall not enure in a revision filed under Section 115, Civil P. C. The submission is plausible and appears to have substance, but for a reason, which I shall presently state, it is unnecessary to discuss it any further.

17. The U. P. (Temporary) Control of Rent and Eviction Act does not prohibit practising lawyers from appearing before the authorities constituted under it. It does not require counsel to file written authority for 'acting' or 'pleading' separately. The question of the terms upon which a litigant engages a counsel for conducting his case before the Rent Control authorities would primarily depend upon the intention of the parties and the interpretation of the actual contract entered into by them. The tenant Mohan Lal indicated the terms of the authority of Mr. Ayyer by the vakalatnama. Before the Commissioner Mr. Ayyer on 20th May, 1960, filed a memorandum of appearance stating that he as appearing on behalf of Mohan Lal, the respondent-tenant in that revision. He then appended a note saying that his vakalatnama was already in the lower Court's file. Mohan Lal, the tenant, appeared in the witness-box and stated that he had engaged Mr. Ayyer to argue the revision before the Commissioner and that he had conferred no other authority on him. There is no documentary evidence to support this contention. The memorandum of appearance filed by Mr. Ayyer seems to contradict him. If it was true that Mr. Ayyer had been engaged merely for arguing the revision and had no other authority, he would not have mentioned in the memorandum of appearance filed by him that his vakalatnama was already on the lower court's file.

This note was appended obviously to Inform the Commissioner and the other side, that the vakalatnama in his favour would be operative in the revision. That would indicate that the appellant hadentitled Mr. Ayyer to conduct the revision before the Commissioner on the same terms and conditions on which he was engaged before the Rent Control and Eviction Officer. The terms and conditions mentioned in the vakalatnama were to govern them. Thus, the valalatnama, which was on the file, became operative in the revision also. Under it Mr. Ayyer had an express authority to compromise the case. His action in compromising the case was, therefore, within his powers. It cannot, therefore, be held that the Commissioner acted contrary to the provisions of the Act in recognising the compromise signed by Mr. Ayyer on behalf of the appellant. The order of the Commissioner was not invalid on this ground.

18. The other submission of Mr. Seth was that in view of Section 3 (3) of the Act the Commissioner could not act upon a compromise between the parties. Under Section 3 (3) of the Act the Commissioner is to hear the revision and 'he may if he is not satisfied as to the correctness, legality or propriety of the order passed by the District Magistrate or as to the regularity of proceedings held before him, alter or reverse his order, or make such other order as may be just and proper'. It was urged that the Commissioner can pass an order only after satisfying himself as to the correctness, legality or propriety of the order of the District Magistrate. In the present case he did not apply his mind to the merits of the District Magistrate's order, but decided the revision simply in terms of the compromise entered into between the parties. That was beyond the purview of the powers conferred on him by the statute. It was also urged on the authority of Commissioner, Sales Tax v. Ujjal Singh Autar Singh, (1968) 22 STC 26 (All) that the Commissioner has to confine himself to the record of the case as it was before the District Magistrate and had no power to accept or act upon additional evidence or fresh material. The compromise was such a fresh material. It is true that Jagdish Sahai, J. did make such observations while interpreting Section 10 (3) of the U. P. Sales Tax Act, 1948, but Beg, J. the other learned Judge, did not go as far. He held that if a case does arise in which the purpose for which the revisional power exists requires adduction of additional evidence, it would fetter the revisional powers, as found in the Sales Tax Act, too much to lay down that additional evidence cannot be taken. I would, with respect, dissent from the views expressed by Jagdish Sahai, J. Section 3 (3) authorises the Commissioner to pass such order as may be just and proper. The legislature obviously left an element of flexibility with the Commissioner. Holding that the Commissioner could not take into consideration subsequent events either on factsor in law which may be germane to the purpose for which the revisional power exists, would be making the Commissioner's jurisdiction unduly rigid, and placing him in a sort of straight jacket. In other words, that would frustrate, rather than advance, the legislative intent and object.

19. In the present case the defendant was the tenant of the entire house. The landlord had purchased it and wanted its possession for his personal residence. On that ground, he sought permission to eject the tenant. The compromise Detween the parties was that the tenant would vacate the inner portion of the house within four months so as to enable the landlord to live in it, and the landlord would continue to recognise the defendant as the tenant of the outer portion. It was further provided that if the tenant failed to vacate the inner portion, the permission would be deemed to have been granted for the entire house.

20. The U. P. (Temporary) Control of Rent and Eviction Act does not affect the contractual rights of the lessor and the lessee in relation to a tenancy. The Act does not place any restriction on the right of the tenant to surrender the tenancy and vacate the accommodation whenever he chooses to do so. The rights of the landlord and the tenant to put an end to a contract of tenancy by an agreement, remain unaffected by any provision of the Act They can substitute, for an existing contract of tenancy, a fresh one. They can alter the subject-matter of the tenancy by reducing or enlarging the accommodation which would be the subject of tenancy. The compromise in the present case merely amounted to this: that both the parties agreed that henceforth the appellant would remain a tenant of only a portion of the house and that he would surrender the tenancy in relation to the rest. By so arranging their mutual rights they sought to resolve the controversy whether it was a case fit for the grant of permission to sue for the ejectment of the tenant under Section 3 of the Act, a matter which was the subject of the revisional jurisdiction conferred on the Commissioner. The compromise, therefore, was germane to the purpose of the power conferred on the Commissioner. By taking into consideration this subsequent development between the parties, a development to which both the parties were agreed, the Commissioner could not be said to have acted upon any fresh material or evidence foreign to the purposes of the power conferred on him.

21. When the Act authorises the Commissioner to pass such orders as may be just and proper, the Commissioner would be within his powers in taking into consideration a mutually agreed solutionadvanced by both the parties. An order based upon an agreement between the parties could not but be said to be just and proper in relation to the rights and liabilities of both the parties.

22. It is true that the order of the Commissioner does not in terms indicate whether he considered the legality, correctness or propriety of the District Magistrate's order on merits, but it is apparent that when the parties themselves put forth before the Commissioner an agreed solution which involved a modification of the District Magistrate's order, the fact that the Commissioner acted upon the compromise would inevitably mean that the order of the District Magistrate was duly taken into account. I am, therefore,, unable to hold that the Commissioner's order was outside the purview of the jurisdiction conferred on him by Section 3 (3) of the Act. Thus the Respondent has failed to establish that the Commissioner did not comply with the provisions of the Act or did not act in conformity with the fundamental principles of judicial procedure or that he otherwise acted illegally or improperly. His order hence would remain binding on the parties. The State Government's order being ineffective, the suit for ejectment was liable to be decreed on the basis of the Commissioner's order granting the requisite permission.

23. In the result, the appeal succeeds and is allowed. The appellate decree is set aside and that of the trial Court restored. Under the circumstances, I would leave the parties to bear their own costs in this and the lower appellate Court.


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