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Jagannath Prasad Vs. Fateh-uddin - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 132 of 1961
Judge
Reported inAIR1965All345
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 7(2), 7B, 7B(1), 7B(3) to 7B(7) and 7B(11)
AppellantJagannath Prasad
RespondentFateh-uddin
Appellant AdvocateS.K. Vidyarthi, Adv.
Respondent AdvocateB.K. Srivastava, Adv.
DispositionRevision allowed
Excerpt:
.....before a munsif passes an order of eviction under sub-section (5) he ought to he satisfied that the relationship of landlord and tenant exists between the parties; lastly, our learned brother observed that though there was great delay, the court ought to have satisfied itself that the relationship of landlord and tenant exists between the parties. in the present case the learned munsif could not possibly have dismissed the application because on the face of it it was maintainable under section 7-b (1). if it could be dismissed it could be dismissed only on, the basis of some fact to be brought to the notice of the learned munsif subsequently and it could be brought to his notice only through an objection filed as required by sub-section (7). 12. the order passed by the learned munsif..........he hadlet to the opposite party. on 4-4-1961 the applicant made an application in the court of the learned munsif under section 7-b stating 'that he is theowner of the accommodation, that the opposite party is his tenant on rs. 10/- per month as rent and has not paid the rent for 14 months ending on 31-3-1961 and that the cause of action for the application accrued in his favour on 1-6-1960 within the learned munsif's jurisdiction and praying that the opposite party be ejected. section 7-b reads as follows: '(1) when any tenant, who is in occupation ofan accommodation in pursuance of an order madeunder the provisions of sub-section (2) of section 7 is in arrears of rent...... for more than three monthsthe landlord may make an application to the munsif having territorial jurisdiction for.....
Judgment:

Desai, C.J.

1. This is an application under Section 115 of theCode of Civil Procedure for revision of an order passed by a Munsif dismissing the applicant's application under Section 7-B of the U. P. (Temporary) Control of Rent and Eviction Act. The applicantis the landlord of an accommodation which he hadlet to the opposite party. On 4-4-1961 the applicant made an application in the Court of the learned Munsif under Section 7-B stating 'that he is theowner of the accommodation, that the opposite party is his tenant on Rs. 10/- per month as rent and has not paid the rent for 14 months ending on 31-3-1961 and that the cause of action for the application accrued in his favour on 1-6-1960 within the learned Munsif's Jurisdiction and praying that the opposite party be ejected. Section 7-B reads as follows:

'(1) When any tenant, who is in occupation ofan accommodation in pursuance of an order madeunder the provisions of Sub-section (2) of Section 7 is in arrears of rent...... for more than three monthsthe landlord may make an application to the Munsif having territorial Jurisdiction for an order of ejectment of the tenant from the accommodation,

(2) (a) The application shall contain the following particulars:

(i) The name of the landlord..................

(ii) A sufficient description of the accommodation. .........

(iii) The arrears claimed and the rate at whichthey are claimed.

(b) The application shall be verified in themanner prescribed for the verification of the plaint in the Code of Civil Procedure, 1908.

(3). On the making of the application.... the Munslf shall, without unnecessary delay, serve by registered post........ a notice on the tenantasking him to pay the amount of arrears within 15 days of the service thereof or to show cause within the said period why an order directing him to be evicted from the accommodation be not passedagainst him.

(4). If within the time allowed.... the tenant pays into court the amount mentioned therein, the Munsif shall dismiss the application......

(5). Where the tenant has been duly served with the notice under Sub-section (3) but has failed todeposit the amount mentioned within the time allowed therein and he does not file any objection, the Munsif shall...... make an order directing thatthe tenant be evicted from the accommodation andpay the costs of the application.

(6). ..................

(7). If the tenant appears in reply to the notice ....and files an objection, other than an objectionas to costs of these proceedings, the Munsif shall inform the applicant that he may..... have theapplication treated as a plaint in a suit for recovery of arrears of rent alone:

Provided that the tenant shall not be permitted to file any objection, unless he has deposited in Court the amount mentioned in the notice or furnishes security to the satisfaction of the Court. (11). Whenever the Munsif finds that the application by the landlord.... was frivolous or vexatious, he shall award special costs to the tenant....'

2. It will be seen that the application made by the applicant contained all the particulars required by Sub-section (2) (a) of Section 7-B. It was also verified, though not exactly as required by the Code of Civil Procedure. However, the defect in the verification has not been noticed by the learned Munsif and has not been made a ground for dismissal of the application. The defect is also of a trivial nature and has not caused any prejudice to the tenant. He did not bring it to the notice of the learned Munslf while the proceeding was pending before him; otherwise it would have been removed by the applicant. The applicant did not state in the application that the opposite party waa in occupation of the accommodation in pursuance of an order made under Section 7(2), i.e., in pursuance of, what is known popularly as, an 'allotment order', but he was also not required to state this fact in the application. The application was in order; (barring the unimportant defect in the verification) and the learned Munslf was bound by Sub-section (3) to issue notice to the opposite party asking him to pay the arrears or to show cause. He was required to do so 'without unnecessary delay' and was not required to do anything before serving the notice; it follows that he was not required to Inquire into either the correctness of the particulars mentioned in the application or the question whether the opposite party was in occupation of the accommodation under an allotment order or not. If an application itself mentions either that the tenant was not in possession of the accommodation under an allotment order, or that he was in arrears of rent for a period less than three months, or that he himself was not the landlord, or the other party was not the tenant, it can be dismissed by the Munsif because on Its face it is not an application governed by Section 7-B. The condition precedent for his serving upon the opposite party a notice is that the application was made under Sub-section (1) and if it Itself does not purport to have been made under Sub-section (1) and states facts showing that it could not be under Sub-section(1), he would not be obliged to proceed under Sub-section (3). The facts here, however, were that the application of the applicant purported to be under Sub-section (1) and contained nothing showing that it could not be under Sub-section (l) and the learned Munsif was bound by Sub-section (3) to serve upon the opposite party a notice. He did so and called upon him to pay the arrears of Rs. 140/- or to show effuse within fifteen days of the service of the notice. The notice was served upon: the opposite party on 8-5-61 andthe period of fifteen days expired on 23-5-1961. The opposite party did not pay the arrears, and did not appear and tile any objection before this date and the learned Munsif was bound by Sub-section (5) to make an order directing that he be evicted from the accommodation and pay the costs of the application, tie Had no option but to do so; there was no question whatsoever of his considering the application on merits. The law enjoined upon him to pass an order of eviction of the opposite party because of his failure to pay the arrears and file an objection within the time allowed. He had no jurisdiction to extend the time; to extend the timewould have meant his defying the provision contained in Sub-section (5). Still he failed to pass the order as required by Sub-section (5). On 3-6-1961 when he took up the case the opposite party appeared and fied an objection denying that he wasin occupation of the accommodation under an allotment order and contending that the applicant's application was not maintainable under Section 7-B, He did not deposit in Court the amount of Rs. 140/-mentloned in the notice nor furnished security to the satisfaction of the learned Munsif, Notwithstandlng: these facts the learned Munsif entertained the objection and proceeded to dispose of It. Theapplicant protested against the entertainment of theopposite party's objection and the learned Munsif heard the parties on 15-7-1961 and on 27-7-61 passed the impugned order dismissing the application of the applicant.

3. The applicant applied for revision of the learned Munsif's order and the application has been referred to a larger Bench on account of conflictof decisions.

4. we have reproduced the relevant provisions, from which it is clear that the learned Munsif acted without jurisdiction in (1) not passing an order for the opposite party's eviction as required by Subsection (5) of Section 7-B on, or immediately after, 23-5-1961 and (2) entertaining the opposite party's objection even though it was barred by time and he had . not deposited the amount of the arrears or furnished security. The proviso to Sub-section (7) lays down a condition precedent for the entertainment of an objection other than only an objection as to costs of the proceedings. The proviso in Its very nature is mandatory and the objection of the opposite party did not relate to the costs of the proceedings at all. The learned Munsif had, therefore, no option but to refuse to entertain It. No discretion was given to him -to entertain it on the ground that it related to a particular ground. Sub-section (7) divides all possible objections that can be filed by a tenant into only two classes (1) of objections relating to the costs of the proceedings and (2) of all other objections. There is no further division of 'all other objections' into two (or more) classes depending upon their nature, such as one of objections which go to the root of the Munsif's jurisdiction or are fatal to the maintainability of the application of the landlord under Section 7-B ana other of remaining objections. Regardless of Its nature, an objection cannot be entertained unless the condition precedent, viz., the deposit of the arrears mentioned in the notice or furnishing of security bas been fulfilled. Here it was not fulfilledand the learned Munsif acted without Jurisdiction in entertaining the objection and allowing it.

5. it is true that an application lies under Section 7-B(1) against a tenant only if he is in occupation of the accommodation under an allotment order, but a Munsif is not required to go into this question except on an objection filed by the tenant. if an application contains the particulars mentioned In, Sub-section (2), he is bound to serve the notice and the tenant can then file an objection only within the period allowed to him and after depositing the arrears or furnishing security. Then, and then only, can he go into the question whether the tenant was in occupation under an allotment order or not. It is not open to him to assume anything, he cannot assume that the tenant was not in occupation under an allotment order, hold that consequently the application is not maintainable and dismiss it. This is a matter to be pleaded by the tenant, and he can plead it only through an objection. He has no right except to pay the arrears or to file an objection within the time. He has no right to bring to the Munsif'a notice any matter otherwise than through an objection. If he was not in occupation under an allotment order, the application deserves to be dismissed out it can be dismissed only when it is found by the learned Munsif that he was not in such occupation and he can come to this finding only when the tenant appears before him and files an objection alleging the fact. Unless he does so the Munsif cannot proceed on the basis that he was not in such occupation and he can do so only if he files an objection within fitteen days and deposits the arrears mentioned in the notice or furnishes security. if he does not come within fifteen days or does not deposit the arrears or furnish security, his objection cannot be heard at all and if he cannot be heard, the Munsif can never come to a finding that he was not in such occupation and will never nave Jurisdiction to dismiss the application on this ground. An application lies when the tenant is in occupation under an allotment order, but the landlord is not requires to satisfy the Munsif of this fact either before the Munsif serves upon the tenant a notice under Subsection (3) or before he passes an order under Subsection (5) for his eviction. it is for the tenant to object to the maintainability of the application as it is for him to object to the application on any other ground. As we said earlier. Section 7-B makes no distinction between one ground of objection and another and whatever may be the ground of objection the tenant must proceed as laid down in. Sub-sections (4) to (7). if he succeeds in showing that he was not in occupation under an allotment order, the application will be dismissed but it cannot be dismissed in any other way on this ground. The procedure to be followed upon an application made under Sub-section (1) is exhaustively laid down in Sub-section (3) to (7) and the Munsif cannot depart from it and adopt his own procedure, it was no use the opposite party's contending before us that the applicant could not succeed unless be was in occupation under an allotment order, it was for him to establish this fact in the prescribed manner, i.e., by filing an objection within fifteen days of the receipt of the notice and after depositing the arrears mentioned in the notice or furnishing security. Under the prescribed procedure a tenant would be ejected even though he was not in occupation under an allotment order, if the application did not recite the fact and he did not object within the prescribed period or did not deposit the amount of the arrears or furnish security. The fact that the tenant was not in occupation under an allotment order prevents his being evicted tout not an application being tiled under Sub-section (1). A landlord may suppress a fact or may not know of it, or may have forgotten it, or may interpret the provisions of Section 7-33 incorrectly, but in spite of all these facts he will succeed unless the tenant files an objection in the prescribed manner and within the prescribed period, unless he files an objection the Court will never come to know of the suppression etc. The only manner in which the learned Munsif could know in the Instant case that the opposite party was not in occupation under an allotment order was through an objection to be filed by him and all the provisions contained in Sub-sections (5) and (7) applied to the objection.

6. The opposite party's objection raised a question of fact which to be answered in his favour required evidence, it could not be decided in his favour unless it was allowed to be raised by the learned, Munsif and the landlord had been confronted with it. This could have been done only if the opposite party's objection had been entertained and it could have been entertained only if he had come within time and deposited the arrears or furnished security.

7. If an application contains particulars prescribed by Sub-section (2) the Munsif is bound to issue notice of it to the tenant even though the particulars are subsequently found to be incorrect. The application would be dismissed on the particulars being fount! to be incorrect but they wow it J be found to be incorrect only after the tenant's objection has been entertained find adjudicated upon. one of the particulars is the amount of the arrears; this is required to be mentioned in the application so that the tenant may Know the exact amount to be paid by him m Court, Even if a wrong amount is claimed, a notice will be Issued against him and if he objects he will be bound to do so within the prescribed period and after depositing the amount claimed in the application, or furnishing security. There is absolutely no justification for saying that different law applies if his objection is not against the amount of the arrears but on the ground that he does not hold the accommodation under an allotment order.

8. The contention that it would be harsh or onerous if a tenant was required to deposit the entire amount of the arrears or furnish security before his objection on the ground that he does not occupy the accommodation under an allotment order is entertained, does not merit any consideration. We are not concerned with the question whether the Legislature was wise or not in prescribing this condition precedent for an objection by a tenant; if it operates harshly, it is for the Legislature to remove or modify it and a Court cannot refuse to enforce it because it finds it to be harsh. There is no dispute in the present case about the arrears of rent and it cannot be contended by the oppositeparty that his being required to deposit the entire amount was a harsh condition. Such a condition is imposed under taxing statutes also, (a right of appeal is given to a tax payer only if he deposits the entire amount of the tax assessed upon him) and it has not been knocked down on the ground of hardship. A court has no jurisdiction to knockdown a statute oil the ground of unreasonableness.

9. The view that we take receives support from Civil Kevn. No. 91 of 1949 Smt. Jashoda v. Ram Swarup decided by Kldwai and Chaturvedl JJ.. on 15-3-1955 (All--LB), Ram Lal v. Hindustan Commercial Hank Ltd. 1952 All L J 154 : (AIR 1952 All 498) Dayal Das v. Sushila Devi, AIR 1953 All 755 and Haradwar Singh v. Sateyndra Kumar Gupta, (S) AIR 1957 All 305.

10. The contrary view has been taken by Oak J. In Shridhar Snukla v. Babu Lal, 1961 All W. R. 508. The facts there were that the tenant filed an objection not before, but after, the expiry of 15 days and without depositing the arrears claimed or furnishing security, denying that the applicant was the landlord. Oak J. held that still the objection could be entertained by the Munsif. He observed that Section 7-B does not apply if the 'objector takes the stand that he is not a tenant at air but it does not follow that he can take this stand without complying with the requirement of Sub-section (5) and (7). He can certainly defeat the application on this ground but only after filing an objection before the expiry of fifteen days and after depositing the arrears or furnishing security. Our learned brother has not explained why these provisions do not apply to the objection that the applicant is not the landlord as they apply to any other objection (other than an objection as to costs of the proceeding). He has also not explained how it could be found that the applicant was not the landlord unless an objection was filed to that effect by the tenant. Before the issue of a notice under Sub-section (3) the Munsif could not know that the applicant was not the landlord and after the issue there could not arise any question of his jurisdiction to issue it. The application would fail but it would fail on merits and not on the ground that he had no jurisdiction in the very baginning. Then our learned brother observed that before a Munsif passes an order of eviction under Sub-section (5) he ought to he satisfied that the relationship of landlord and tenant exists between the parties; there is no provision in the entire section 7-B imposing this obligation upon the Munsif. The circumstances in which he can pass an order of eviction are laid down in Sub-section (5) and it is not for1 a court, to subtract from them. If the relationship does not exist, it is for the tenant to show this to the satisfaction of the Munsif by filing an objection. Our learned brother then observed that the objection filed by the tenant in the case before-him was 'of an unusual nature.' We have made it clear that the Legislature has made no distinction between one objection and another and that there is no warrant for saying that one objection is of an unusual nature and another not. An objection, cannot be said to be of unusual nature and to be treated differently from other objections merely because on its being allowed the application would beliable to be dismissed in to to. It cannot be said that an objection merely challenging the amount of the arrears is one of 'usual' nature, whereas one denying the relationship of landlord and tenant is of an 'unusual' nature governed by quite a different law. further, our learned brother says that if there is any substance in the contention raised by the tenant, no action should be taken under Section 7-B. Section 7-B contemplates several actions to be taken by the Munsif; one is that of issuing notice under Sub-section (3), another is passing eviction order under Sub-section (5) and the third is giving an option to the landlord to have his application treated as a plaint in a suit and only the second action cannot be taken by him if there is any substance in, the tenant's contention. Lastly, our learned brother observed that though there was great delay, 'the court ought to have satisfied itself that the relationship of landlord and tenant exists between the parties.' No authority has been cited in support of this view. There is no provision in Section 7-B which casts this obligation upon the court in the absence of an objection within the prescribed period and after fulfilment of the condition precedent. With great respect we differ from the view expressed by our learned brother,

11. Another decision which was brought to our notice is Karam Chand Kapoor v. Mushtaq Husalii, .1958 All L.J 340. The facts of the case were entirely different from those in the Instant case and this is obvious from the fact that Roy and Bishambhar Dayal JJ. themselves distinguished the case before them from the cases of AIR 1953 AH 755 and 1952 All LJ 154: (AIR 952 All 498 (supra), if the instant case is goevrned by the decisions in the cases of ALL 1953 All 755 and 1952 All LJ 154: (AIR 1952 All 498) (supra) it follows that it is not governed by the decision in Karam Chand Kapoor's case, 195S All LJ 340. In that case the application Itself recited the fact, though not called for, that the tenant was in occupation of the accommodation with effect from 1-2-1955 and it was made on 31-3-1955; so it was obvious from the application itself that the tenant was not in arrears for more than two months' rent and that, consequently, Section 7-B did not apply at all. An application under Section 7-B lies only when the tenant is in arrears for at least three months' rent. aS in the case it was apparent from the application Itself that it could not lie under Section 7-B, the learned Judges held that, the Munsif ought not to have entertained it. The Munsif had entertained it and issued notice to the tenant, who without deposit ing the amount of the arrears filed an objection contending that it was not maintainable. Roy and Bishambhar Dayal JJ. held that the Munsif ought to have entertained the objection though the tenant had not deposited the arrears or furnished security. Even without the objection being entertained the Munsif was bound to dismiss the application which on its own face was not maintain able under Section 7-H. No new fact was brought to the notice of the Munsif by the tenant through his objection; he simply relied upon what was stated in the application itself. No objection was needed at all, the facts were all there and it was for the Munsif to apply the law to the facts. He should have dismissed the application as soon anit was filed before him and could have dismissed it at any subsequent stage even without an objection being filed before him. It was in these circumstances that the learned Judges held that the Munsif could not refuse to entertain the objection on the ground that it was not accompanied by the deposit or security. In the present case the learned Munsif could not possibly have dismissed the application because on the face of it it was maintainable under Section 7-B (1). If it could be dismissed it could be dismissed only on, the basis of some fact to be brought to the notice of the learned Munsif subsequently and it could be brought to his notice only through an objection filed as required by Sub-section (7).

12. The order passed by the learned Munsif was clearly without jurisdiction. He also went wrong in ordering special costs to be awarded against the applicant. His application could not be said to be frivolous or vexatious even though the opposite party was not in occupation under an allotment order. Every application that does not lie is not necessarily frivolous or vexatious. The learned Munsif has not explained how he treated the applicant's application as frivolous or vexatious. After all it is not denied that the relationship of landlord and tenant existed and that the opposite party was in arrears of rent. If the applicant Instead of filing a suit against him for the arrears of rent, made an application under Section 7-B (1) even though he could not do so. It could hardly be said that he acted frivolously or vexatiously.

13. In the result we allow this application, set aside the order of the learned Munsif under Section 7-B (5), direct the opposite party to be evicted from the accommodation and pay the costs of the application and the applicant's costs in this Court.


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