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Rati Ram Ji Vs. Mithan Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3776 of 1958
Judge
Reported inAIR1960All408
ActsUttar Pradesh (Temporary) Control Rent and Eviction Act, 1947 - Sections 3 and 3(1); Transfer of Property Act, 1882 - Sections 106
AppellantRati Ram Ji
RespondentMithan Lal
Appellant AdvocateG.P. Bhargava, Adv.
Respondent AdvocateBanarsi Das, Adv.
DispositionAppeal dismissed
Excerpt:
.....of rent and eviction act, 1977 and section 106 of transfer of property act, 1882 - filing of suit for ejectment of tenant - allowed only with the permission of district magistrate - landlord eligible to take all other steps in the lawful exercise of his rights - no bar against the termination of tenancy by serving notice on the tenant. - - act terminating the tenancy is an inseparable part of a continuous process culminating in the fifing of the suit, and cannot be issued by the landlord unless and until the has obtained the permission required under section 3. 6. the argument of learned counsel appears plausible at first sight and raises some interesting questions. but it is not pleasant for any tenant to be labelled a trespasser, and it would be better if the tenants,.....s.s. dhavan, j.1. this is a tenant's second appeal in a suit for ejectment. the appellant contested the suit on the grounds, inter alia, that the notice served by the landlord under section 106 of the t. p. act prior to the filing of the suit was invalid. the trial court held that the notice was invalid and dismissed the suit-the lower appellate court reversed this finding andheld that the notice was valid. it accordingly allowed the appeal and decreed the suit for the appellant's eviction with costs. he has now come to this court in second appeal.2. the only point urged before me is that the notice under section 106 of the t. p. act was not a valid notice according to law and therefore the suit was not maintainable. the facts of the case are these. the appellant rati ram, a practising.....
Judgment:

S.S. Dhavan, J.

1. This is a tenant's second appeal in a suit for ejectment. The appellant contested the suit on the grounds, inter alia, that the notice served by the landlord under Section 106 of the T. P. Act prior to the filing of the suit was invalid. The trial Court held that the notice was invalid and dismissed the suit-The lower appellate court reversed this finding andheld that the notice was valid. It accordingly allowed the appeal and decreed the suit for the appellant's eviction with costs. He has now come to this court in Second Appeal.

2. The only point urged before me is that the notice under Section 106 of the T. P. Act was not a valid notice according to law and therefore the suit was not maintainable. The facts of the case are these. The appellant Rati Ram, a practising Vakil, has been the tenant of the respondent Mithan Lal without interruption since 1938. In 1953 the landlord applied to the District Magistrate for permission under Section 3 of the Control of Rent and Eviction Act to file a suit for the ejectment of the appellant.

Permission was refused both by the Rent Control and Eviction Officer and the Commissioner, but granted by the State Government under Section 7-F of the Act by an order dated 13-4-1955. This Order allowed Ratiram six months to vacate the accommodation and stated that the permission to file a suit would take effect after six months.

3. It appears that the appellant did not vacate the house voluntarily. Six months were due to expire on 13-10-1955. The landlord served a notice under Section 106 of the T. P. Act terminating the tenancy which was received by the appellant Rati Ram on 22nd September. It asked him to vacate the house within thirty days of its receipt. The appellant, however, appears to have taken no notice of this warning and on 1-12-1955 the landlord filed his suit for ejectment.

4. It should be noted that the permission of the State Government became effective on the 13th October, 1955. The suit itself was filed after the permission had become effective. But the notice under Section 106 of the Transfer of Property Act terminating the tenancy was issued and received in September, 1955 when the permission to file a suit had not become effective, that is to say, when there was no permission at all in law. This fact is the foundation of the entire case of the appellant in this appeal.

5. Mr. Ojha, who argued the case for the appellant with ability, contended that the permission under Section 3 of the Control of Rent and Eviction Act is a necessary condition not only for the filing of the suit for ejectment, but also for all steps which are ancillary to and a pre-condition of the filing of the suit. According to him, the service of notice under Section 106 of the T. P. Act terminating the tenancy is an inseparable part of a continuous process culminating in the fifing of the suit, and cannot be issued by the landlord unless and until the has obtained the permission required under Section 3.

6. The argument of learned counsel appears plausible at first sight and raises some interesting questions. It is true that a suit for the ejectment of the tenant can succeed only if the landlord has previously terminated the tenancy by serving a notice to that effect on the tenant under Section 106 of the T. P. Act. Without such notice the tenant will have in case of a tenancy at will, an impregnable defence that he has a right to occupy the accommodation and cannot be evicted.

Under Section 106 of the T. P. Act, as applied to the State of Uttar Pradesh, the landlord can terminate the tenancy by giving one month's notice. After the expiry of thirty days from the receipt of this notice, the tenancy is at an end and, if the tenant continues to occupy the premises, he becomes a trespasser and the landlord can file a suit for his ejectment. The question for me to decide is whether it is open to a landlord to terminate the tenancy by serving on the tenant a notice under Section 100 pi the T. P. Act, without first obtaining the permission of the District Magistrate under Section 3 (1) of the Control of Rent and Eviction Act.

7. It is true that if the landlord could issue the notice terminating the tenancy without obtaining the District Magistrate's permission under Section 3 of the Control of Rent and Eviction Act, the position would be anomalous. That section provides a safeguard against the arbitrary eviction of the tenant by prohibiting the landlord to file any suit for ejection without the permission of the District Magistrate, It gives the tenant a limited security of tenure. But if the bar under Section 3 is limited to the filing of the suit and does not prevent the service of a notice under Section 106 of the T. P. Act, it follows that the landlord can determine the tenancy and make his tenant a trespasser in law but cannot file a suit for his ejectment.

This is an anomaly which the court must seek to avoid unless it is powerless in the face of the plain language of the statute. I have, therefore, to consider whether the words of Section 3 of the Control of Rent and Eviction Act can be so interpreted as to include the service of notice under Section 106 of the T. P. Act within the scope of the bar imposed by it. I have reluctantly come to the conclusion that such an interpretation is not possible.

8. Section 3 (1) of the Control of Rent and Eviction Act provides:

'Subject to any order passed under Sub-section (3) no suit shall, without the permission of the District Magistrate be filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds'.

Now, the words of this sub-section are:

'No suit shall ..... be filed in any civilcourt against a tenant for his eviction ........'.

If the words had been, 'the tenancy shall not be determined' or, 'the landlord shall not terminate the tenancy', the bar would have extended to the service of notice under Section 106 of the Transfer of Property Act. But the words of Section 3 are quite specific. It says that 'no suit shall be filed in any civil court', and no more.

9. The word 'suit' is not defined in the Control of Rent and Eviction Act nor in the C. P. C. But Section 26 of the Code says that 'every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed'. The filing of a suit thus means the presentation of a plaint to the court. This view finds support from the following observation of the Privy Council in Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd.

'The word 'suit' ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint.'

10. I am, therefore, of the opinion that Section 3 of the U. P. Control of Rent and Eviction Act imposes a ban on the filing of a suit but none on the service of notice under Section 106 of the T. P. Act. The landlord cannot file a suit for the ejectment of a tenant without the permission of the District Magistrate, but he is entitled as far as Section 3 is concerned, to take all other steps in the lawful exercise of, his rights as a landlord. There appears to be no bar against his termination of the tenancy by serving a notice on the tenant under Section 106 of the T. P. Act,

11. I cannot agree that the service of notice under Section 106 is a part of the process of filing a suit The suit for ejectment can be filed, in the case of a fixed period tenancy, even without issuing this notice. Even in the case of a tenancy at will, the omission to send a notice before filing the suit will merely provide the tenant with a defence that he still remains a tenant and is not a trespasser. The notice under Section 106 enables the landlord to terminate the tenancy and then ask the tenant to vacate the accommodation. It may not always result in a suit.

It is only when the tenant ignores the notice that the landlord has to seek the help of the court for his eviction. There is nothing in the Control of Rent and Eviction Act to prevent a landlord from requesting or persuading a tenant to vacate the accommodation of his own free will. He may even issue a notice under S, 106 of the Transfer of Property Act. But he must stop short of filing a suit for the ejectment of his tenant. This last step he can take only after obtaining the permission of the District Magistrate.

12. It is noteworthy that the Central Provinces and Berar Rent Control Order, 1947, on which the present legislation in Madhya Pradesh controlling rents and eviction of tenants is based, avoided this lacuna by enjoining that the landlord shall not terminate the tenancy without the permission of the Collector.' These words extended the bar to any step for the termination of his tenancy including any notice under Section 106 of the T. P. Act. But the bar under the U. P. Act is confined to the filing of a suit for eviction in the civil court. It is for the legislature to fill up this lacuna.

13. It is true that this interpretation would leave the tenant exposed to annoyance or harassment by the landlord who may bombard him with notice after notice terminating his tenancy. It may also be true that he can afford to ignore these notices as long as the District Magistrate withholds his permission for the filing of the suit for ejectment. He may also apply to the District Magistrate for the prosecution of the landlord for the disobedience of the order of the District Magistrate if his tenancy was created as the result of what is popularly called an ''allotment order' under Section 7 of the Act.

But it is not pleasant for any tenant to be labelled a trespasser, and it would be better if the tenants, particularly those whose tenancies were created before the passing of the Act, are protected against such annoyance by a suitable amendment of the language of Section 3. This, however, is a matter entirely for the legislature. The Court could not insert words in a statute which were not there simply because it felt that they ought to have been there. If it did, the judiciary would be crossing the border of interpretation of laws into the forbidden territory of legislation.

14. In the result, this appeal must fail and is dismissed. In the circumstances of the case parties are directed to bear their own costs throughout. The decree for ejectment of the appellant is confirmed with this modification that he is granted six month's further time to vacate.

15. Leave for special appeal is granted.


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