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Bansidhar Joshi Vs. Chandra Kumar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1027 of 1956
Judge
Reported inAIR1964All348
ActsUttar Pradesh (Temporary) control of Rent and Eviction Act, 1947 - Sections 7B; Code of Civil Procedure (CPC) , 1908 - Sections 9, 96 and 100 to 101; Contract Act, 1872 - Sections 70
AppellantBansidhar Joshi
RespondentChandra Kumar and anr.
Advocates:L.M. Pant, Adv.
DispositionAppeal dismissed
Excerpt:
.....(temporary) control of rent and eviction act, 1947 and sections 9 and 96 of code of civil procedure, 1908 - cases that are generally triable by the small causes court - held, munsif has an ordinary right to decide such matters and decisions are appealable. (ii) compensation - section 70 of contract act, 1872 - tenant entered in the house - electricity cuts-off - tenant paid the bill - held, landlord not bound to compensate the tenant. - - i think the munsif is intended to function as an ordinary court, and, therefore, any decree passed by him would be appealable like any other decree. if he does, it follows that any decree passed by him in that section is appealable like any other decree. he can ask the landlord for compensation only on proof that he did not intend to pay the..........of the different civil courts. but if the sub-section is interpreted as conferring upon the munsif a jurisdiction to hear suits for the recovery of rent without any limit in regard to valuation, this will create a confusion.i am afraid learned counsel cannot be permitted to agitate this question as it is concluded by a decision of this court in moti ram v. smt. hasina begum air 1953 all 346. it was held in that case that the munsif has jurisdiction to hear and decide a suit for arrears of rent and is not required to return the plaint for presentation to the court of small causes. the learned judge who decided this case pointed out that the munsif has the power under sub-section (ii) to award special costs against the landlord or the tenant if the former's application or the.....
Judgment:

S.S. Dhavan, J.

1. This is a defendant's second appeal against the decision of the Second Additional Civil Judge, Agra decreeing the landlord's suit for recovery of arrears of rent. The plaintiff respondents are the owners of a house in the city of Agra. They filed an application before the learned Munsif under Section 7-B of the Control of Rent and Eviction Act for the ejectment of the tenant Bansidhar Joshi on the ground that he was in arrears of rent for more than three months. The tenant filed an objection under Sub-section (8) in which he admitted the tenancy but disputed the rate of rent alleged by the landlord who had claimed it at Rs. 50/-/- per mensem. The application was converted into a regular suit for recovery of arrears of rent. The learned Munsif held that the tenant had not agreed to pay Rs. 50/ per mensem and that the reasonable rate of rent was Rs. 20/-per mensem. He also held that the tenant was entitled to deduct the amount paid by him as house-tax, water tax and charges for the restoration of the electric supply. Accordingly he decreed tha landlord's suit for recovery of rent at Rs. 20/-per mensem minus a sum of Rs. 77/3/9 paid by him as house tax, water tax and electric charges.

2. On appeal the Additional Civil Judge disagreed with the trial court on the question of the rate of rent and held that there was an agreement between the parties fixing the rent at Rs. 50/- per mensem. He disbelieved the version of the tenant and accepted that of the landlord. He agreed with the trial court that the tenant was entitled to adjust against rent any amounts paid by him towards the house and water taxes but did not agree that he was entitled to deduct the electricity charges. Accordingly he modified the decision of the trial court and passed a decree for arrears of rent at the rate of Rs. 50/- per mensem against the tenant who has now come to this Court in second appeal.

3. Mr. L. M. Pant, learned counsel for the appellant advanced the following arguments in support of this appeal. First, he contended that the appellate court had no jurisdiction as there is no right of appeal against the decree of the Munsif under Section 7-B. Learned counsel contended that the jurisdiction of the Munsif under Section 7-B is a special one and the ordinary right of appeal under Section 96 of C. P. C. is not available. Such a right could only arise under the statute creating the special jurisdiction. As Section 7-B provides for no appeal, it follows that the legislature intended the decree of the Munsif for arrears of rent under Section 7-11 to be final. I do not agree. Sub-section (8) of Section 7-B provides that if the applicant pays the necessary court fee within the time allowed, the application shall be treated as a plaint and the proceedings as a suit. The words 'plaint' and 'suit' indicate that the Munsif functions as an ordinary court. Any doubt is further removed by the requirement that the landlord must pay the necessary court fees. The Word 'necessary' means court fee at the rate applicable to such a suit if it were filed as a suit ab initio. I think the Munsif is intended to function as an ordinary court, and, therefore, any decree passed by him would be appealable like any other decree. The appeal would lie to the court to which appeals from the decrees of the Munsif ordinarily lie. Learned counsel laid stress on the fact that Section 7-B confers on the Munsif the jurisdiction to try all suits for arrears of rent without any limitation as regards valuation. This fact, according to learned counsel, makes the jurisdiction of the Munsif a special one with no right of appeal. I do not think so. The fact that the Munsif can try suits of any valuation under Section 7-B does not make his Court any the less a Civil court. The pecuniary jurisdiction of the Munsif's court is fixed by law and can be enlarged or restricted by any other law in suitable cases. The extent of the pecuniary jurisdiction is irrelevant, in my opinion, to the question whether the Munsif functions as an ordinary court when trying a suit for the recovery of rent under Section 7-B. If he does, it follows that any decree passed by him in that section is appealable like any other decree.

4. Mr. Pant then argued that a Munsif had no jurisdiction under Section 7-B to hear a suit for the recovery of rent if the amount is less than Rs. 1000/-, as such suits are within the exclusive jurisdiction of the Small Cause Court in Agra. Counsel pointed out that Sub-section (8) does not say that the Munsif shall try the suit but that 'the application shall be treated as a plaint and the proceedings as a suit'. The Munsif had the power to treat the landlord's application in this case as a plaint but he could not hear the suit if the plaint disclosed on the face of it absence of jurisdiction. He should have returned the plaint for presentation to the proper court. Mr. Pant contended that the words 'the application should be treated as a plaint' should be given a meaning which is consistent with the policy of the Legislature defining the jurisdiction of the different Civil Courts. But if the sub-section is interpreted as conferring upon the Munsif a jurisdiction to hear suits for the recovery of rent without any limit in regard to valuation, this will create a confusion.

I am afraid learned counsel cannot be permitted to agitate this question as it is concluded by a decision of this court in Moti Ram v. Smt. Hasina Begum AIR 1953 All 346. It was held in that case that the Munsif has jurisdiction to hear and decide a suit for arrears of rent and is not required to return the plaint for presentation to the court of Small Causes. The learned Judge who decided this case pointed out that the Munsif has the power under Sub-section (II) to award special costs against the landlord or the tenant if the former's application or the latter's objection is found to be frivolous of vexatious, and there can be no finding that the application or the objection is frivolous or vexatious unless the Munsif enters into the merits of the case. If the Munsiff has to send a suit for recovery of arrears of the rent to another Court, this must have two results. Either his jurisdiction to award special costs is taken away or he can award special costs regardless of the decision of the Small Causes Court. His power to award special costs must remain in fact for Sub-section (II) says that whenever the Munsif finds that the application by the landlord or the objection by the tenant was frivolous or vexatious ho shall award special costs .........' The use of theword 'whenever' implies that his power to award special costs is subject to no exception, and he could decide the question of frivolity of the application or the objection even if the suit were tried by the Small Causes Court. This might lead to two conflicting decisions on the merit of the application or the objection--a possibility which is eliminated only if the Munsif tries every suit himself. I think Section 7-B confers a jurisdiction on the Munsif to try all cases including those which would ordinarily be triable by the Small Causes Court.

5. Mr. Pant then argued that the finding of the appellate court that there was agreement between the parties fixing the rent at Rs. 50/- is erroneous. I am afraid a finding of fact cannot be reviewed in second appeal.

6. Lastly Mr. Pant argued that the appellate court was wrong in holding that the tenant was not entitled to deduct the electricity charges from the rent. He contended that the landlord was bound to make compensation to the tenant in respect of the payment of these charges under Section 70 of the Contract Act. I do not think that Section 70 has any application. It provides that where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of the thing so done or delivered. In this case the electric connection had been cut off by the Electric Supply Company for non-payment of dues. This was the situation when the tenant occupied the house but as he was anxious to have electricity, he paid the arrears to the Company from his own pocket. He can ask the landlord for compensation only on proof that he did not intend to pay the arrears gratuitously and the landlord enjoyed the benefit of this act. The courts have not found that the tenant did not intend to pay the electricity charges gratuitously and that the landlord benefited by this act. On the contrary, the appellate court has found that there was nothing to show that the landlord was agreed to reimburse the tenant. As regards any benefit from this payment I should think that the tenant himself got it as he was able to enjoy the amenities of electricity. It might have been fair on the part of the landlord to pay up this amount but if he refuses to do so the tenant could not compel him under the law. The view of the appellate Court appears to be correct.

7. No other point was urged. The appeal dismissed. Leave to appeal is refused.


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