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Khazanchi Prasad and anr. Vs. Babu Ram and ors. - Court Judgment

LegalCrystal Citation
Subject Tenancy
CourtAllahabad
Decided On
Reported inAIR1949All559
AppellantKhazanchi Prasad and anr.
RespondentBabu Ram and ors.
Excerpt:
.....therefore, 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. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - it is, therefore, perfectly clear that sub-section (2) of section 6 was never intended to apply to a suit other than a suit instituted under sub-section (4) of..........read as follows:no appeal shall lie from any decree or order of the munsif or the civil judge in a suit brought under this act : provided that the decree or order so passed shall not operate as res judicata between the parties or their representatives-in-interest in any suit or proceeding under any other law.on the language of this sub-section alone without reference to other provisions of the act, an impression is created that in all suits brought under this act, the decision of the trial court is final and there is no further right of appeal. unlike the debt acts this act does not define what are the suits that should be deemed to be suits brought under the act. a suit by a landlord for ejectment of his tenant could be brought oven before the act was passed' : and could not strictly be.....
Judgment:

Malik, C.J.

1. This is a civil revision against a decree for ejectment passed by the learned additional Munsif of Ghaziabad on 21st July 1948. Babu Ram and Ors. plaintiffs, filed a suit for ejectment of Sultan Singh and Khazanchi Prasad on the ground that Sultan Singh was the tenant of a shop which had been rented to him under a registered lease dated 14th March 1940, that Khazanchi Singh was his sub-tenant, and that the lease having expired on 20th January 1947, the defendants were not entitled to remain in possession of that shop. It was alleged in the plaint that the suit was being filed with the permission of the Sub-Divisional Magistrate of Baghpat. The suit was resisted on various grounds but the learned Additional Munsif held against the defendants and decreed the suit for ejectment, but he reduced the amount of damages from Rs. 575 to Rs. 173.

2. We have been informed by the learned Counsel that an appeal against this decree has been filed in the lower appellate Court. As there was some doubt whether an appeal lay, the present revision was also filed in this Court by the defendants-applicants.

3. A preliminary objection has been raised by Mr. Brij Lal Gupta, learned Counsel for the plaintiffs-opposite parties, that no revision lies to this Court under Section 115, Civil P.C., the decree being appealable to the lower appellate Court.

4. Learned Counsel for the applicants, Mr. Gopi Nath Kunzru, has relied on Section 6, Sub-section (2), U.P. (Temporary) Control of Rent and Eviction Act, III [3] of 1947, in support of his contention that all appeals are forbidden under this provision and the only remedy that the defendants, therefore, had was by coming up to this Court in revision under Section 115. Sub-section (2) of Section 6 is not very happily worded, and at a first glance it tends to support the contention of the learned Counsel. This sub-section on the date when the suit was filed read as follows:

No appeal shall lie from any decree or order of the Munsif or the Civil Judge in a suit brought under this Act : provided that the decree or order so passed shall not operate as res judicata between the parties or their representatives-in-interest in any suit or proceeding under any other law.

On the language of this sub-section alone without reference to other provisions of the Act, an impression is created that in all suits brought under this Act, the decision of the trial Court is final and there is no further right of appeal. Unlike the Debt Acts this Act does not define what are the suits that should be deemed to be suits brought under the Act. A suit by a landlord for ejectment of his tenant could be brought oven before the Act was passed' : and could not strictly be said to be a suit brought under the Act. In Section 5, Sub-section (4) of the Act, however, we find that there is a special provision made for institution of a suit for fixation of rent in the Courts of Munsifs or Civil Judges, according to the valuation of the annual rent claimed. This is a special type of suit which can be filed in accordance with the provisions of Sub-section (4) of Section 5. Sub-section (1) of Section 6, determines the procedure in a suit brought under Section 5, Sub-section (4). Sub-section (2) should, therefore, ordinarily be read as a part of the section and the words 'In a suit brought under this Act' should be interpreted to mean 'a suit brought under Section 5, Sub-section (1) of the Act. Whatever doubt there may have been on the interpretation of this sub-section has now been removed by an amending Act XLIV [44] of 1948, which came into force on 15th December 1948, and provides that in Sub-section (2) of Section 6 the words 'except as regards the rate of rent but no further' after the words 'provided that' and the words 'Sub-section (4) or Section 5' in place of the words 'this Act' may be substituted. The Sub-section after amendment now reads as follows:

No appeal shall lie from any decree or order of the munsif or the Civil Judge in a suit brought under Sub-section (4) or Section 5 : Provided that except as regards the rate of rent, but no further the decree or order so passed shall not operate as res judicata between the parties or their representatives-in-interest in any suit or proceeding under any other law.

It is, therefore, perfectly clear that Sub-section (2) of Section 6 was never intended to apply to a suit other than a suit instituted under Sub-section (4) of Section 5. In that view of the matter, the decree passed by the learned Additional Munsif was appealable under Section 96, Civil P.C.

5. The decisions of this Court are very clear on the point that if another remedy is open, the revisional jurisdiction under Section 115 should not normally be exercised. As an appeal has already been filed in the lower Court and that appeal is pending, we are of opinion that it will not be proper to hear this case under our revisional jurisdiction.

6. The revision is, therefore, dismissed with costs. As the revision has been dismissed, the stay order is discharged. Let the record be sent down to the lower Court by an early date.


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