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Jagdishwar Sahai Vs. Surjan Singh Pal - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1971 of 1975
Judge
Reported inAIR1977All554
ActsUttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 20 and 43; Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1973 - Sections 43(2); Code of Civil Procedure (CPC) , 1908 - Sections 2(2) and 10
AppellantJagdishwar Sahai
RespondentSurjan Singh Pal
Appellant AdvocateVinod Swaroop, Adv.
Respondent AdvocateRajesh Tandon and ;R.P. Misra, Advs.
DispositionRevision dismissed
Excerpt:
.....section 43(r) applied to suits pending on 20th september, 1972 as per new act - on filing date suit barred by section 20 - still suit to continue as per new act. - - iii of 1947 'any suit for the eviction of a tenant instituted with the permission referred to in ,section 3 of the old act or any proceeding arising out of such suit, pending immediately before the commencement of this act, may be continued and concluded as if this act had not been passed, and like-wise, any suit for eviction with such permission referred to in clause (i), clause (1). clause (m) or clause (o) may be instituted after the commencement of this act. like-wise a suit for eviction with such permission referred to in clause (i), clause (1), clause (m) or clause (o) could be instituted after the commencement..........meet the fate that it deserves. it cannot, however, be contended that no suit was instituted. a suit barred on the ground of limitation, incompetency or any other preliminary ground is nonetheless a suit. if such a suit is dismissed the plaintiff would have a right of appeal to the superior court. that right cannot be denied on the ground that the suit was incompetent or was barred by law of limitation or any other enactment or that the court had no jurisdiction to entertain it. similarly even if the appeal is found to be irregular or incompetent, e. e. barred by time, and dismissed assuch the aggrieved party may have a right of second appeal or revision if the statute so provides. that right could not be denied on the ground that the appeal itself was irregular or incompetent as an.....
Judgment:

K.N. Seth, J.

1. The suit giving rise to the present revision was instituted on 1-8-1972 for eviction of the defendant applicant on the strength of permission obtained by the plaintiff under Section 3 of the U. P. Act No. III of 1947 and also on the ground that he had committed default in payment of rent in spite of a notice of demand. A decree for arrears of rent and pendente lite and future mesne profits at the rate of Rs. 60/- per month was also claimed, The trial Court rejected the plaintiff's contention that the defendant was in arrears of rent when the notice of demand was served on him. The suit for ejectment, however, was decreed on the basis of the permission under Section 3 of Act No. III of 1947. Pendente lite and future mesne profits was decreed at Rs. 40/- per month. In the revision before the learned District Judge the decree of the trial Court for eviction of the defendant was challenged only on the ground that the suit for ejectment instituted on 1-8-1972 on the strength of the permission under Section 3 of Act No. III of 1947 was incompetent on account of the bar created by Section 20 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The revision has been placed before us for decision as the learned Chief Justice while hearing the revision felt that 'an authoritative decision by a Division Bench would subserve the public interest.'

2. It is not disputed that Section 20 of the Act by itself would bar a suit However, Section 43 (2) (r) provided that notwithstanding the repeal of Act No. III of 1947 'any suit for the eviction of a tenant instituted with the permission referred to in ,Section 3 of the old Act or any proceeding arising out of such suit, pending immediately before the commencement of this Act, may be continued and concluded as if this Act had not been passed, and like-wise, any suit for eviction with such permission referred to in Clause (i), Clause (1). Clause (m) or Clause (o) may be instituted after the commencement of this Act.' The Act came into force on July 15, 1972. It is obvious that a suit for the eviction of the tenant on the strength of the permission granted under Section 3 of the old Act would have to be continued and concluded as if the new Act had not come into force, if the suit was pending on the date of enforcement of the Act. Like-wise a suit for eviction with such permission referred to in Clause (i), Clause (1), Clause (m) or Clause (o) could be instituted after the commencement of the new Act. In all other cases the suit would be barred under Section 20. Certain amendments in the Act were introduced by the U. P. Civil Laws Amendment Act, 1972 (Act No. 37 of 1972). By Section 8 of the aforesaid Act Clause (r) of Section 43 (2) was amended and the portion beginning with the words 'and like-wise' and ending with the words 'after the commencement of this Act' were omitted. Again, the State Legislature by S 7 of the U P. Civil Laws (Amendment) Act, 1973 (Act No. 19 of 1973) amended Clause (r) by substituting for the words 'the commencement of this Act' the words and figures 'the commencement of the Utter Pradesh Civil Laws Amendment Act, 1972'. In the enforcement clause of Act No. 19 of 1973 it was provided that Section 7 shall be deemed to have come into force on 20th day of Sept. 1972. As a result of these amendments Clause (r) reads as follows:--

'any suit for the eviction of a tenant instituted with the permission referred to in Section 3 of the old Act or any proceeding arising out of such suit, pending immediately before the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1972, (U. P. Act 37 of 1972) may be continued and concluded as if this Act had not been passed.'

It, is thus obvious that whereas the original Section 43 (2) (r) applied to suits on the basis of permission pending on July 15, 1972, under the amended provision it became applicable to such suits pending on 20th Sept. 1972 and such suits have to be continued and concluded as if this Act had notbeen passed i. e. the bar of Section 20 would not be applicable to such suits.

3. Learned counsel for the applicant contended that when the present suit was instituted on 1-8-1972 Clause (r) as it originally stood applied to the case and the suit was, therefore, incompetent i. e. it was not a suit in the eye of law. Such a suit being non-existent in the eye of law could not be made a 'live' suit by subsequent amendments. While it is true that if the present suit had come up for final decision before 20th Sept. 1972 it would have been dismissed as barred by Section 20 but it cannot be successfully contended that if the suit was pending on 20th Sept. 1972 the same result would follow. On the date of its institution the suit was certainly barred by Section 20 but nonetheless it was a suit. Merely because it was barred under the Act it is not right to contend that the suit was non-existent. A suit may be barred under the law of limitation or it may be barred by any other enactment or it may not be maintainable because the plaintiff may not be competent to institute it yet it cannot be held that no suit comes into existence. The word 'suit' has not been denned but it must be taken to mean a civil proceeding instituted by a plaint. For the existence of the suit it is enough if a party approaches the court and seeks its assistance by presenting a plaint. If the plaintiff fails to satisfy the court on the validity of his claim or it is found to be barred by any enactment or the court has no jurisdiction to grant the relief claimed for, the claim will meet the fate that it deserves. It cannot, however, be contended that no suit was instituted. A suit barred on the ground of limitation, incompetency or any other preliminary ground is nonetheless a suit. If such a suit is dismissed the plaintiff would have a right of appeal to the superior court. That right cannot be denied on the ground that the suit was incompetent or was barred by law of limitation or any other enactment or that the court had no jurisdiction to entertain it. Similarly even if the appeal is found to be irregular or incompetent, e. e. barred by time, and dismissed assuch the aggrieved party may have a right of second appeal or revision if the statute so provides. That right could not be denied on the ground that the appeal itself was irregular or incompetent as an appeal is no less an appeal because it is irregular or incompetent.

4. In the present case since the suit was pending on 20th Sept., 1972, though barred by Section 20 of the Act when it was instituted, it had to be proceeded with and concluded as if the new Act had not been passed. On the strength of the permission obtained under Section 3 of Act No. III of 1947 the plaintiff has rightly been held entitled to a decree for eviction of the defendant applicant.

The revision has no merit and is dismissed. Parties shall bear their own costs.


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