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Mangal Prasad Vs. Sirdar Tara Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 527 of 1966
Judge
Reported inAIR1971All378
ActsUttar pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3 and 7F; Code of Civil Procedure (CPC) , 1908 - Sections 9, 16 and 100-101
AppellantMangal Prasad
RespondentSirdar Tara Singh
Appellant AdvocateS.D. Misra, Adv.
Respondent AdvocateJ.B. Srivastava and ;K.L. Gurnani, Advs.
DispositionAppeal allowed
Excerpt:
.....of the plaintiff-appellant before the commissioner also failed, whereafter he applied to the state government which passed the following order: the contention of the defendant-respondent is that it is not a speaking order and is a nullity and for that reason civil courts are competent to hold that the suit giving rise to this appeal on the basis of the order of the state government aforesaid is bad in law and the civil courts have no jurisdiction to entertain it. misra, learned counsel for the plaintiff-appellant, and sri jagat bahadur srivastava, learned counsel for the defendant-respondent have made a joint statement before us that the only question involved in the second appeal is whether the suit filed by the plaintiff-appellant is liable to be dismissed on the ground that the..........the following two issues which were numbered as 1 and 3.'1.--whether the permission granted by the state government was illegal, arbitrary, unjust and mala fide as alleged in paras 25 and 26 of the written statement. if so, its effect?3--whether the order of the state government cannot be the basis of the suit as alleged in para 27 of the written statement?'before filing the suit the plaintiff-appellant had sought the permission of the district magistrate under section 3 of the u. p. (temporary) control of rent and eviction act (hereinafter referred to as the act) for permission to sue the defendant-respondent. the district magistrate refused the permission and the revision application of the plaintiff-appellant before the commissioner also failed, whereafter he applied to the state.....
Judgment:

Jagdish Sahai, J.

1. This second appeal is directed against the decree passed by Sri S. L. Tripathi, Civil Judge. Mohanlal Ganj, Lucknow, on 18-10-1966 allowing Regular Civil Appeal No. 195 of 1966 and setting aside the decree passed by the learned Munsif on 27-5-1966 decreeing the suit for ejectment and recovery of Rs. 12/- per month as damages in favour of the appellant who was plaintiff before the learned Munsif. The plaintiff-appellant filed the suit giving rise to this appeal (Regular Suit No. 284 of 1964 in the court of Munsif North, Lucknow) for the ejectment of the defendant-respondent from a house situate in Mohalla Rajendra Nagar, Lucknow, and for the recovery of a sum of Rs. 60/- by way of damages. The learned Munsif, inter alia, framed the following two issues which were numbered as 1 and 3.

'1.--Whether the permission granted by the State Government was illegal, arbitrary, unjust and mala fide as alleged in paras 25 and 26 of the written statement. If so, its effect?

3--Whether the order of the State Government cannot be the basis of the suit as alleged in para 27 of the written Statement?'

Before filing the suit the plaintiff-appellant had sought the permission of the District Magistrate under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act) for permission to sue the defendant-respondent. The District Magistrate refused the permission and the revision application of the plaintiff-appellant before the Commissioner also failed, whereafter he applied to the State Government which passed the following order:

'Sri Mangal Prasad ko unke uparukt vishay per dinank 21 December, 1962, ke prarthana patra ke sandarbh me soochit kiya jata hai ke is mamle ke abhilekho kee pareeksha kar lee gayee hai aur virodhi paksha ke kathan tatha es mamle ke anya tathyon par bhi vichar kar liya gaya hai aur Nyaya ke driste se yah aawashyak samjha jata hai ke prashnagat makan prarthi ko niju upyog ke liye uplabdha ho.

2. Ateya Bajyapal. Uttar Pradesh. Temporary Control of Rent and Eviction Act 1947 kee dhara F dwara prapt adhika-rpn ka prayog karke Additional Commissioner, Lucknow, Division, Lucknow, dwara Revision Sankhya 36/13, of 1961.62 me diye gaye addesh dinank 22 November, 1962, ko jisme Rent Control and Eviction Officer Lucknow ke aadesh dinank 21 September. 1962, kepushitee ke gaye hai radd karte hai tatha prarthee ko vipakshee ke virudh divani adalat me bedakhle ke mukdama dayar karne hetu ukt Act kee dhara 3 kee anumati pradan karte hai'.

It is on the basis of this permission that the suit giving rise to this appeal was filed by the plaintiff-appellant. The contention of the defendant-respondent is that it is not a speaking order and is a nullity and for that reason civil courts are competent to hold that the suit giving rise to this appeal on the basis of the order of the State Government aforesaid is bad in law and the civil courts have no jurisdiction to entertain it. The learned Munsif overruled this objection, but the learned Civil Judge in appeal allowed it. Against the decree passed by the learned Civil Judge dismissing the suit of the plaintiff-appellant and reversing the decree passed by the learned Munsif the instant second appeal has been filed in this Court.

2. The matter came up before our brother Sehgal, who referred the case to a larger Bench. This is how the matter has come before us.

3. Sri S. D. Misra, learned counsel for the plaintiff-appellant, and Sri Jagat Bahadur Srivastava, learned counsel for the defendant-respondent have made a joint statement before us that the only question involved in the second appeal is whether the suit filed by the plaintiff-appellant is liable to be dismissed on the ground that the order passed by the State Government, mentioned above, is bad in law and for that reason the civil courts had no jurisdiction to try this suit.

4. No other question has been raised before us. We have reproduced the order of the State Government in extenso above. In the first place, we are not satisfied that it is not a speaking order. The State Government has clearly stated that they have carefully perused the representations of both the parties and also considered all the circumstances operating in the case and having done so it appeared to them that it is necessary in the interest of justice that they should accord the plaintiff-appellant the necessary permission under Section 3 of the Act. Sri Jasat Bahadur, learned counsel for the defendant-respondent has submitted that the order of the State Government, which we have extracted above, is in fact not an order of the State Government but only a communication of the order of the State Government. In our opinion, at this stage it does not lie in the mouth of the learned counsel for the defendant-respondent to make such a submission. On the back of the order of the State Government, which has been marked as Ext. 1 by the learned trial Judge, the learned counsel for the defendant-respondent has made the following endorsement:

'Formal proof dispensed with subject to pleas. Contents denied.'

It does not appear that in the court of the learned Munsif it was ever the defendant-respondent's case that the order, mentioned above, is not the order of the State Government passed under Section 7-F of the Act and is only a communication. The defendant-respondent cannot now be heard at this stage to take such an objection when the litigation has proceeded on the footing that that is an order of the State Government, under Section 7-F of the Act.

5. Even if the order be taken to be one not Hiving reasons, it cannot, in our opinion, be ignored by the civil courts. There cannot be any manner of doubt that the District Magistrate, the Commissioner of the Division and the State Government have been given exclusive jurisdiction to decide the question whether or not to grant permission and the civil courts have no say in the matter.

6. It may also be pointed out that U. P. (Temporary) Rent Control and Eviction Act is a special Act and provides its own machinery for granting permission for filing suits for ejectment. Section 3 of the Act imposes restriction on the powers of the civil courts inasmuch as it clearly provides that except on the grounds mentioned in that provision a suit will not be competent in a civil court without the permission accorded by the District Magistrate or the Commissioner or the State Government, It is well-known that the special excludes the general. Here the exclusion is not implied but clearly express.

7. Section 16 of the Act reads:

'No order made under this Act by the State Government or the District Magistrate shall be called in question in any court.'

The expression 'any court' shall include any civil court. True Section 9 C. P. C. confers jurisdiction on civil courts to entertain suits of a civil nature but that provision is qualified by the words 'excepting suits of which their cognizance is either expressly or impliedly barred.'

8. In our opinion civil courts cannot enter into the question of validity or otherwise of the permission granted by the State Government. We derive support for our view from the case of Ramji Das v. Trilok Chand. (1970) 1 SCC 566 = (AIR 1971 NSC 155) where a similar question arose and their Lordships observed:

'Even if we assume that he committed an error in the exercise of his jurisdiction, the error could be corrected only in a proceeding under Section 7-F of the Act by approaching the State Government and by way of a writ petition to the High Court, but the order made by the Bent Control and Eviction Officer and confirmed by the Additional Commissioner could not be challenged in the suits.'

On the other hand, Sri Jagat Bahadur Srivastava, learned counsel for the defendant-respondent, has placed reliance on the following three cases: Mohd. Ismail v. Nanney Lal, AIR 1970 SC 1919; Ram Swarup v. Shikar Chand, AIR 1966 SC 893; Haji Manzoor Ahmed v. State of U. P.. AIR 1970 All 467 (FB).

In the first case the only question before the Supreme Court was whether a suit filed on the basis of a permission granted by the District Magistrate or the Commissioner would be affected if the State Government recalled the order granting permission to file the suit, subsequent to the institution of the suit. The question in the second case was as to whether a permission which was a nullity could validly form, the basis of a suit. In the third case the question was as to whether the State Government in exercise of its power under Section 7-F of the Act had to accord reasons for its decision and two out of three Judges constituting the Bench held that it was so bound to do. In none of the three cases mentioned above the question that has been raised before us was raised. Learned counsel for the defendant-respondent contends that if an order does not Hive reasons, it is a nullity. In our opinion the submission is not correct. It may make the order irregular or defective, but the order cannot be a nullity so long it has been passed bv an authority which was competent to pass that order and is not passed against or in favour of a dead man. There is a difference in want of jurisdiction and the defect in the manner of exercise of jurisdiction. If orders are passed completely without jurisdiction they will be a nullity, but if there has been only a defect or irregularity in passing the order and the authority passing it had jurisdiction to do so it would not be a nullity. We are, therefore, satisfied that the view taken by the learned Civil Judge is wrong. The Civil Courts could not go into the question of the appropriateness or irregularity of the orders passed by the State Government. The learned Civil Judge has clearly pointed out 'that the State Government had given an opportunity to defendant to put up his case before it. The defendant had actually filed his written statement before State Government.' The State Government has also clearly said in Ext. 1 that they have considered the written statement filed by the defendant-respondent. The ground on which the learned Civil Judge dismissed the suit is that Ext. 1 is a communication and not the order of the State Government and no order of the State Government had been filed. The learned Civil Judge lost sight of the fact that the parties had proceeded on the assumption that Ext. 1 was the order of the State Government granting permission to the plaintiff appellant. In paragraph 5 of the written statement it has been stated as follows:

'The validity and legality of the order dated 25-4-1964, passed by the State Government is questioned and the plaintiff cannot make it a basis of his suit.'

The challenge was that the order is not legal or valid and not that it is not an order of the State Government but only a communication.

9. In paragraph 25 of the written statement it has again been assumed or accepted that Ext. 1 is the order of the State Government. That paragraph reads:

'That the orders of the State Government are illegal, arbitrary and unjust and mala fide as also they want to help the plaintiff who is a Government servant and they have not only disregarded two concurrent decisions of two courts below, out also disregarded the inspector's detailed report on record regarding the two house accommodation of the plaintiff, and without assigning any reasons. The very fact that the plaintiff possesses two houses, as per inspector's report on record, which could be a very important factor for deciding the genuineness or otherwise of the need of the plaintiff, has not been considered.'

After the written statement was filed it was again amended and paragraphs 25-A and 27-A were added. Paragraph 25-A reads:

'That even if it be proved that permission under Section 3 of the Control of Rent and Eviction Act has been granted by the State Government to the plaintiff, the said permission is illegal, ultra vires, mala fide and without jurisdiction, as also no opportunity was given by the State Government to substantiate and put his case before them'.

Paragraph 27-A reads :

'That the suit not being based on twin grounds of D. M's. permission coupled with any of the exceptions provided in Section 3 (1) (a) to (g) of Rent Control and Eviction Act is not maintainable.'

It would be noticed that in all there are 30 paragraphs in the written statement, but nowhere has the plea been raised that Ext. 1 is only a communication and not an order. Contrary to it the defendant-respondent has definitely proceeded on the footing that Ext. 1 is the order of the State Government under Section 7-F of the Act and not a mere communication. The learned Civil Judge was, therefore, not justified in treating it as a mere communication. It may be pointed out that he had clearly recorded a finding that the permission granted by the State Government is not invalid.

10. Sri Jagat Bahadur Srivastava, learned counsel for the defendant-respondent made a request to us that we do not enter into the question as to whether the impugned order of the State Government contains reasons or not and that we should only decide that the Civil Courts could not ignore the order of the State Government. The reason why Sri Jagat Bahadur Srivastava wants us to do so is that that would enable his client to file a writ petition against the order of the State Government for its being quashed on the ground that it is not a speaking order. We do not wish to express any opinion upon the validity or otherwise of a writ petition, if one is filed. We are unable to agree with the learned counsel for the defendant-respondent that we should not decide this case fully and effectively and should not meet the points that have been raised by the learned counsel for the parties before us. The order of the State Government was passed as far back as on 25-4-1964 and the defendant-respondent has not challenged it by a writ petition so far. We must decide the two points raised by the learned counsel for the plaintiff-appellant, the same being (1) that the order of the State Government contains reasons and (2) that the civil courts cannot ignore it inasmuch as the authority passing the order is possessed of the jurisdiction to pass the order. We have only, decided these two points.

11. In our opinion, the view taken by the learned Civil Judge is erroneous. We, therefore, allow this appeal, set aside the decree passed by him and restore the one passed by the learned Munsif North, Lucknow. The defendant respondent should pay the plaintiff-appellant his costs of this appeal.


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