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Rehtu Ram Vs. Karam Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2145 of 1960
Judge
Reported inAIR1964All208
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3, 3(1), 3(2) and 3(3)
AppellantRehtu Ram
RespondentKaram Singh
Advocates:Satya Prakash, Adv.
DispositionAppeal allowed
Excerpt:
.....order of refusal by d.m. - whether d.m. can cancel order granting permission to sue - landlord has filed suit for ejectment - d.m. cannot cancel permission as suit has been filed. - - permission was granted by the rent control and eviction officer on 23rd may 1958. in his order thatofficer observed that the need of the landlord would have been satisfied if he had been able to reap the benefit of the earlier permission to evict the other two tenants, but as the validity of the permission had been challenged in the high court there was likely to be delay in the disposal of the cases, and meanwhile the landlord's needwas pressing and it was just and desirable that he should be given permission to obtain additional accommodation in his own house. thereupon, karam singh filed an application..........filed, the application for the cancellation of the permission was not maintainable.karam singh filed a revision against this order before the commissioner which was opposed by the landlord on the ground that the commissioner had no jurisdiction to entertain a revision from an order of the rent control and eviction officer refusing to review his previous orderor to cancel an order granting permission after the landlord had filed his suit for ejectment. overruling both these objections, the commissioner set aside the order of the rent control and eviction officer dated 23rd may 1958 refusing a review and cancelled the permission. thereupon the defendant karam singh amended his written statement and added a plea that the suit for ejectment was no longer maintainable as the permission.....
Judgment:

S.S. Dhavan, J.

1. This is a landlord's second appeal from the decision of the Additional Civil Judge Muzaffarnagar dismissing his suit for ejectment, of his tenant. The plaintiff Rehatu Ram was the landlord of a house which wasoccupied by several tenants including the defendant Karam Singh. The landlord lived in a part of this house. He needed additional accommodation for his personal use and obtained the permission of the District Magistrate under Section 3 of the U. P. Control of Rent and Eviction Act to file a suit for the ejectment of two tenants other than Karam Singh but they challenged the decision by filing a petition under Article 226 of the Constitution in this Court and consequently the permission remained ineffective for several years. Despairing of getting an early decision, ne filed another application under Section 3 of the Act for the ejectment of the defendant Karam Singh on the same ground namely, his personal needs.

Permission was granted by the Rent Control and Eviction Officer on 23rd May 1958. In his order thatofficer observed that the need of the landlord would have been satisfied if he had been able to reap the benefit of the earlier permission to evict the other two tenants, but as the validity of the permission had been challenged in the High Court there was likely to be delay in the disposal of the cases, and meanwhile the landlord's needwas pressing and it was just and desirable that he should be given permission to obtain additional accommodation in his own house. No revision was filed by the tenant against this order. On 18th July 1958 the landlord served notice on Karam Singh under Section 106 of the Transfer of Property Act terminating the tenancy and ashinghim to vacate the house.

As the latter refused to comply with this request, the landlord filed the present suit for ejectment on 4thSeptember 1958. On 20th January 1959 Karam Singh filed a written statement resisting the suit. Soon after this another tenant Kunj Behari Lal vacated a portion of the house. Thereupon, Karam Singh filed an application before the Rent Control and Eviction Officer for the cancellation of the permission previously granted under Section 3 on the ground that the landlord's personal needs had been satisfied with the departure of Kunj Behari Lal and the reason for the granting of permission no longer existed. The Rent Control and Eviction Officer inspectedthe house and observed that the accommodation at the disposal of the landlord was sufficient for his family. But he held that as the suit for ejectment had already been filed, the application for the cancellation of the permission was not maintainable.

Karam Singh filed a revision against this order before the Commissioner which was opposed by the landlord on the ground that the Commissioner had no jurisdiction to entertain a revision from an order of the Rent Control and Eviction Officer refusing to review his previous orderor to cancel an order granting permission after the landlord had filed his suit for ejectment. Overruling both these objections, the Commissioner set aside the order of the Rent Control and Eviction Officer dated 23rd May 1958 refusing a review and cancelled the permission. Thereupon the defendant Karam Singh amended his written statement and added a plea that the suit for ejectment was no longer maintainable as the permission under Section 3 had been revoked. The trial Court rejected this plea and held that the bar of Section 3 having been lifted, no subsequent revocation of the permission could reimpose the bar, and decreed the suit. On appeal learned Additional Civil Judge held that the subsequent cancellation of the permission by the Commissioner was valid and consequently the suit must be deemed to have been filed without permission. He allowed the appeal and dismissed the suit of the landlord who has now come to this Court in second appeal.

2. in my opinion the view of the lower appellate Court is quite incorrect. The Commissioner's revisional. powers are derived from the Act and limited to the few cases specified in it. He has no general powers of revision like those of this Court under Section 115 of the Code of Civil Procedure empowering it to call for the record of any case in which no appeal lies. He can entertain a revision against art order of the District Magistrate granting or refusing permission to file a suit for the ejectment of the tenant, and also against any order under Section 7-A directing any person to vacate any accommodation. He has no other powers of revision. In this case no revision was filed against the original order granting permission to evict the tenant and that order became final after one month.

Subsequently an application was made for the cancellation of the permission which Was rejected, very properly in my opinion, by the Rent Control and Eviction Officer. The Commissioner however entertained a revision against the second order and cancelled the permission. His order is clearly without jurisdiction. The Commissioner's revisional power being limited to the two cases specified above he cannot entertain any revision against the refusal of the District Magistrate to review his earlier order. Moreover, after the statutory period of limitation for filing a revision against an order granting permission finder Section 3 has expired and an application for the review of that order rejected by the District Magistrate, the Commissioner cannot by the simple device of entertaining a revision against the second order extend the period of limitation for the filing of a revision against the original order itself.

3. The view of the lower appellate Court that thepermission under Section 3 can be cancelled even aftera suit has been filed is also incorrect. It is true thatthe District Magistrate has the power to review his order.But this power must be exercised before the landlordfiiad his suit. If after waiting for the statutory periodof 30 days, the landlord on the faith of the permissionfiles a suit for the ejectment of the tenant, the DistrictMagistrate has no power to cancel the permission exceptin very special circumstances as for example, if it wasobtained by fratfd. After a suit has been filed, the landlord acquires a vested right to have his suit decided toits final conclusion and the District Magistrate cannotdestroy this right by cancelling the permission on thefaith of which the landlord was induced to file thesuit.

4. Thus the power of cancelling or mdifying the order must ordinarily be exercised before the landlord has filed a suit. The only circumstance in which a suit can be invalidated by a cancellation of the permission with retrospective effect is when the landlord, without waiting for the expiry of the statutory period allowed for filing a revision against an order granting permission or during the pendency of the revision, if one has been filed, files a suit and the Commissioner subsequently revokes the permission on a revision filed by the tenant. The reason is that a landlord cannot defeat the tenant's right to file a revision by filing a premature suit.

I cannot accept the wide argument of the appellant's counsel, based on certain observations made by Desai J. (Mithan Lal J. dissenting) in Dwarika Nath Munshi v. Gayatri Devi, 1961 All LJ 353, that any revocation of the permission by the Commissioner is ineffective after the landlord has fiied his suit even if the revision was filed within the statutory period of limitation. The learned Judge in that case observed :

'The restriction imposed (on the landlord's right of filing a suit for ejectment) by Sub-section (1), which has been shown to be one only on the filing of a suit thus remains one only on the filing of a suit. In other words the cancellation of a permission by a Commissioner or the State Government acting under Sub-section (3) or Subsection (4) has absolutely no effect after the suit has been filed.'

With great respect, the combined effect of Sub-sections (2) and (3) by necessary implication is that any suit tiled by the landlord before the expiry of the period of limitation for revision or during the pendency of a revision before the Commissioner shall be subject to the final order of the Commissioner. Sub-section (2) confers on any person aggrieved by the order of the District Magistrate granting or refusing permission to apply to the Commissioner to revise the order and Sub-section (3) empowers the Commissioner to alter or revise it.

But if the cancellation of the permission by the Commissioner in revision is ineffective after the suit has already been filed, the provision for revision becomes meaningless, the right to file revision an empty right, and the revisional power an impotent power; for any landlord can defeat the tenant's right of revision by filing a suit immediately after obtaining permission from the District Magistrate unless the tenant can reach the Commissioner and obtain a stay order first. The Commissioner's power to interfere in revision was not intended to depend upon the result of a race between the landlord and the tenant after the District Magistrate grants permission under Section 3. The Court must consider the purpose of the section which conferred the right of revision and construe the section as a whole, avoiding an interpretation which will enforce one part of it at the expense of rendering another futile. The view of Desaj J. on this point did not have the concurrence of the other learned Judge.

5. However, In the present case the landlord waited for the statutory period of 30 days before filing his suit and no revision was filed against the order granting permission. The Commissioner had no power to cancel the permission under the guise of revising an order of the District Magistrate refusing a review.

6. I allow this appeal, set aside the decree of the (sic) appellate Court, and decree the plaintiffs suit forejectment. In the peculiar circumstances the parties shall bear their own costs throughout.


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