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Rang Nath Vs. District Judge, Varanasi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 7479 of 1979
Judge
Reported inAIR1981All219
ActsProvincial Small Cause Courts Act, 1887 - Schedule - Articles 1 and 4; Uttar Pradesh Civil Laws (Amendment) Act, 1972; General Clauses Act, 1897 - Sections 3(2) and 18(2)
AppellantRang Nath
RespondentDistrict Judge, Varanasi and ors.
Appellant AdvocateS.S. Bhatnagar, Adv.
Respondent AdvocateStanding Counsel
Excerpt:
.....ordinarily be done by the officer in the course of his official duties and he considered himself to be acting as a public officer and desired other persons to consider that he was so acting, then the act clearly is purported to be done in official..........be done in official capacity. it was held that it was a case of an act purporting to be done. the learned judge assumed that refusal or negligence to vacate the premises was an official act of the officer. we are unable to agree. it could at the most be an omission to carry out a contractual obligation. the suit for ejectment was hence not concerning any act whether done or purporting to be done. the assumption in shyam manohar lal's case that it was a case of an act, was not justified. the suit concerned an omission to vacate.4. the question is whether the phrase 'any act' will cover an omission. section 3(2) of the general clauses act provides:--'(2). 'act', used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend.....
Judgment:

Satish Chandra, C.J.

1. A learned single Judge has referred the follow ing question of law for decision by a larger Bench:

'Whether in a case where the lessor is a private person and the lessee is Government the suit can be filed before the Court of Small Causes in view of Entries (1) and (4) of Second Schedule of the Provincial Small Cause Courts Act?'

2. The petitioner is the landlord of a premises which was under the tenancy of the State Government. The petitioner terminated the tenancy and after giving the usual notice under Section 80, C.P.C. filed the present suit for the ejectment of the Government department which was in occupation of the accommodation. The suit was filed in the Small Cause Court. The suit was contested but was decreed by the trial court. The defendant went up in revision. The learned District Judge held that the suit was not cognizable by the Small Cause Court. He, instead of returning the plaint for presentation to the proper court, dismissed it. Hence the present writ petition at the instance of the landlord.

3. The learned District Judge held that the Small Cause Court has no jurisdiction to entertain the suit on the basis of a single Judge decision of this Court in Shyam Manohar Lal v. 4th Addl. District & Sessions Judge (AIR 1978 All 238). In that case a suit was filed, after determination of the tenancy, for the ejectment of the defendant-tenant who was the District Agricultural Officer. The learned single Judge upheld the view that such a suit was not maintainable in the Court of Small Causes under Article 1 of IInd Schedule of the Provincial Small Cause Courts Act. The IInd Schedule to that Act specifies the categories of suit which are excepted from the jurisdiction of the Small Cause Courts. That Article provides :

'(1) A suit concerning any act done or purporting to be done by or by order of the Central Government, the Crown Representative or the State Government.'

The learned single Judge in Shyam Manohar Lal's case held that this entry applies to a suit concerning any act done or purporting to be done. The word, 'purporting' covers a profession by act or by words or by appearance of what is true, as well as of what is not true. Therefore, if the act was such as could ordinarily be done by the officer in the course of his official duties and he considered himself to be acting as a public officer and desired other persons to consider that he was so acting, then the act clearly is purported to be done in official capacity. It was held that it was a case of an act purporting to be done. The learned Judge assumed that refusal or negligence to vacate the premises was an official act of the officer. We are unable to agree. It could at the most be an omission to carry out a contractual obligation. The suit for ejectment was hence not concerning any act whether done or purporting to be done. The assumption in Shyam Manohar Lal's case that it was a case of an act, was not Justified. The suit concerned an omission to vacate.

4. The question is whether the phrase 'any act' will cover an omission. Section 3(2) of the General Clauses Act provides:--

'(2). 'Act', used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend also to illegal omission.''

5. A breach of contract being an illegal omission will be covered by the word 'any Act', interpreted in the light of the General Clauses Act. A similar argument was raised before the Bombay High Court in Chunnilal Rikhab Chand & Co. v. Union of India (AIR 1970 Bom 307). The argument was repelled. It was held that, in the first place, Provincial Small Cause Courts Act was passed in 1887 while General Clauses Act was enacted in 1897. Section 18(2) provides:

'This section applies also to all Central Acts made after the third day of January, 1968 and to all the Regulations made on or after the fourteenth day of January, 1887.'

6. The General Clauses Act was not hence directly applicable to the interpretation used in the Small Cause Courts Act.

7. It is noticeable that Entry (1) of the Second Schedule deals with a suit concerning any act done or purporting to be done by or by order of the Central Government, etc. The significant thing is that the act should either be done by the Central Government itself or by its order. It seems to suggest that there should be a positive act which is either done or is ordered to be done. In this context it appears to us that this entry did not include within its purview an illegal omission on the part of the government.

8. Looking at the matter from another point of view it is noticeable that Entry (4) of the Second Schedule initially related to a suit for possession of immovable property or for recovery of an interest in such property. It was amended by the U.P. Civil Laws (Amendment) Act, 1972. Entry (4) of the Second Schedule was repealed and re-enacted as follows:--

'(4) A suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building alter the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after determination of lease............'.

9. Entry (4) expressly included a suit for eviction of the lessee by the lessor, after determination of the lease. Here there was no exception in relation to suits for eviction where the government or a government officer was the lessee. The provision is general and will include a suit by a lessor for eviction of government or a government officer if it happens to be the lessee. It is a cardinal rule of construction of Statutes that the various entries in the same schedule should be harmoniously construed, so that each may have its full play. Here Entry (1) is sought to be used to exclude a suit by the lessor against a lessee after determination of the lease. Construing both of them harmoniously, it would appear that a category of suits which is expressly included within the jurisdiction of the Small Cause Court by virtue of Entry (4) will be outside the ambit of Entry (1). Thus a suit for eviction of a lessee even if it be the government or a government officer, will be entertainable by the Small Cause Court.

10. Mr. S. S. Bhatnagar, learned counsel for the petitioner, submitted that Entry (1) applies in the administrative or executive field of governmental activity and not in the sphere of contractual rights and obligations entered into by the government or its officer. In the view that we have taken on the first submission, it is not necessary to pronounce on this aspect of the matter.

11. The question referred is accordingly answered in the affirmative in favour of the plaintiff-landlord and against the defendant tenant. Let the papers be placed before the learned single Judge with this opinion and answer.


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