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Dhiraj Bai Vs. Bari Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (Second) Appeal No. 33 of 1974
Judge
Reported inAIR1977MP31
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 10
AppellantDhiraj Bai
RespondentBari Bai and ors.
Appellant AdvocateN.K. Patel, Adv.
Respondent AdvocateP.P. Naolekar, Adv.
Cases ReferredJagannath Prasad v. Chamanlal. M.
Excerpt:
- - --(1) the rent controlling authority shall, on an application made to it in this behalf, either by the landlord or by the tenant, in the prescribed manner, fix in respect of any accommodation- (i) the standard rent in accordance with the provisions of section 7; or (ii) the increase, if any, referred to in section 8.'four things must, therefore, be satisfied in order that the rent controlling authority has to exercise jurisdiction under this section: if these four conditions are satisfied, there is a statutory mandate that the rent controlling authority must fix the standard rent or the increase, as the case may be. ..the proceedings, if once validly launched, cannot be defeated merely because he has ceased to be a tenant after their institution......during the pendency of the suit, on august 29, 1970, the appellant made an application before the rent controlling authority for fixation of standard rent. on january 29, 1973, a decree for eviction was passed against the appellant. however, on june 7, 1973, the rent controlling authority fixed standard rent, aggrieved by which the landlord preferred an appeal. the learned additional district judge, jabalpur, held that as the civil suit had been decreed during the pendency of the application for fixation of standard rent, the rent controlling authority had no jurisdiction to fix standard rent. the tenant then preferred this second appeal. 3. the question framed by the learned single judge is:-- 'whether the rent controlling authority had any jurisdiction to determine the standard rent.....
Judgment:

Shiv Dayal, C.J.

1. Because of conflicting decisions in Jhabboolal Upadhyaya v. Gulab Nabi Khan, 1966 MPLJ (Note) 69 (by Tare, J., as he then was) and Kasturchahd v. Sirekunwar 1972 MPLJ 903 (by Bishambhar Dayal,' C.J.), this matter has been referred to us by a learned Single Judge in this Miscellaneous Second Appeal, which has arisen from proceedings under Section 10 of the M.P. Accommodation Control Act, 1961 (hereinafter called the Act). The present appeal is under Section 32 of the Act.

2. The landlord instituted a suit for eviction against the appellant. During the pendency of the suit, on August 29, 1970, the appellant made an application before the Rent Controlling Authority for fixation of standard rent. On January 29, 1973, a decree for eviction was passed against the appellant. However, on June 7, 1973, the Rent Controlling Authority fixed standard rent, aggrieved by which the landlord preferred an appeal. The learned Additional District Judge, Jabalpur, held that as the civil suit had been decreed during the pendency of the application for fixation of standard rent, the Rent Controlling Authority had no jurisdiction to fix standard rent. The tenant then preferred this second appeal.

3. The question framed by the learned Single Judge is:--

'Whether the Rent Controlling Authority had any jurisdiction to determine the standard rent for the period between the date of the application, i.e. 29-8-1970 and passing of the eviction decree, i.e. 29-1-1973.'

4. In Jhabboolal Upadhyaya v. Gulab Nabi Khan, (1966 MPLJ (N) 69) (supra), Tare, J. observed as follows:--

'That for the purpose of this Act, relationship of landlord and tenant would continue even after there had been termination of tenancy by a quit notice and such relationship continued till a decree for eviction had been passed by a competent Court. The definition of a tenant provided by this Act was a special one which must be given effect to for all purposes of this special enactment. Consequently, a person who was continuing in possession after termination of the tenancy in pursuance of a quit notice would have a right to file an application for fixation of standard rent as long as decree for eviction had not been passed against him by a Court or as long as the relationship of a landlord and tenant existed. It was true that the relationship of a landlord and tenant came to an end after the decree for eviction was passed. But if an application for fixation of standard rent be pending before the Rent Controlling Authority, it would be the tenant's right to have the standard rent fixed for the period during which the relationship of landlord and tenant subsisted. There did not appear to be any provision under which the jurisdiction of the Rent Controlling Authority to fix standard rent would be deemed to have been taken away. Of course that jurisdiction would be limited to the period during which the tenancy subsisted as per the provisions of Section 2 (1) of the Act end it would be immaterial as to when the Rent Controlling Authority passed the final order as long as at the date of the application the relationship validly subsisted. Thus the jurisdiction of the Rent Controlling Authority was not taken away merely because the civil Court had passed a decree for eviction.'

5. In Kasturchand's case (1972 MPLJ 903) (supra), Bishambhar Dayal, C.J. held thus:--

'Where a decree for rent and ejectment has been passed against a tenant, the proceedings started by him for fixation of standard rent cannot continue. The civil Court's decree is not subject to any proceeding for fixation of rent under the Accommodation Control Act. After a decree is passed the original cause of action is merged in the decree. Mere fixation of lesser rent by the Rent Controlling Authority cannot have the automatic effect of reducing the amount of the decree or amending the amount decreed. Any fixation of rent in these proceedings would, therefore, be infructuous.'

6. The bone of contention is the definition of the word 'tenant' as contained in Section 2 (1) of the Act, which reads as follows:---

' 'tenant' means a person by whom or on whose account or behalf the rent of any accommodation is, or, but for & contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.'

Shri Naolekar, relying on Kasturchand's case (supra), argues that since the decree for eviction was passed by the trial Court, the defendant ceased to be the tenant and since the Rent Controlling Authority can exercise jurisdiction under Section 10 of the Act only between the landlord and tenant but not between others, the proceeding before him became infructuous inasmuch as a decree was passed.

7. Section 10 of the Act casts a duty on the Rent Controlling Authority. Sub-section (1) reads as follows:--

'(1) The Rent Controlling Authority shall, on an application made to it in this behalf, either by the landlord or by the tenant, in the prescribed manner, fix in respect of any accommodation-

(i) the standard rent in accordance with the provisions of Section 7; or

(ii) the increase, if any, referred to in Section 8.'

Four things must, therefore, be satisfied in order that the Rent Controlling Authority has to exercise jurisdiction under this Section: (1) There must be an application made to the Rent Controlling Authority; (2) the application must have been made either by the landlord or by the tenant; (3) the application must be for fixation of standard rent or the amount of lawful increase; and (4) the application must be made in the prescribed manner. If these four conditions are satisfied, there is a statutory mandate that the Rent Controlling Authority must fix the standard rent or the increase, as the case may be.

8. On the above analysis of Section 10, it is abundantly clear that if an application has been made by a tenant within the above definition his application is within the section. The Rent Controlling Authority will have not only jurisdiction but he will be bound to discharge his functions under that section. The proceedings thus validly instituted and being within the jurisdiction of the Rent Controlling Authority cannot abate or become otherwise abortive, unless there is a specific provision to that effect. No such provision has been referred to us. All that is argued by Shri Naolekar is that inasmuch as the tenant ceases to be a tenant on the passing of the decree against him, the application before the Rent Controlling Authority could not be continued. There is no substance in this contention. For the period from the date of the application to the date of the passing of the decree, the Rent Controlling Authority will determine the standard rent by virtue of the jurisdiction conferred on him and the duty cast on him under Section 10.

9. It is remarkable that if Shri Naolekar's contention is accepted, the tenant will be left without remedy. He will be deprived of his right to get standard rent fixed and the consequences which will flow from such fixation. After the decree is passed, the matter cannot be agitated in the civil suit, nor can the matter be raised before the appellate Court inasmuch as it was not in issue in the trial Court. That the applicant (landlord or tenant, as the case may be) will be left without remedy is the reason which supports the view we have taken above on the express provision of the Act.

10. The effect of the definition is that the tenant ceases to be the tenant on the passing of the decree against him. Therefore, the question of fixation of rent for the period subsequent to that date may not arise. However, we do not express any opinion finally on that question as it is not before us. The effect of the order of the Rent Controlling Authority and the liability of the tenant to pay damages for use and occupation or mesne profits, as the case may be, may be considered. However, we are not concerned with it in the present appeal. But for the period that he was a tenant within the meaning of the definition, the Rent Con-trolling Authority has got to determine the standard rent. This, if we may say so, is not only in accordance with the letter of the law but also its spirit and will only advance the cause of justice.

11. In this context, we may usefully refer to a Full Bench decision of this Court in Shyemlal v. Umacharan, 1960 MPLJ 1002 = (AIR 1961 Madh Pra 49) (FB). Shri Naolekar relies on Prem Singh v. Gayaprasad, 1972 Jab LJ 651. We have already expressed above the reasons for the view we are taking. We may also refer to the principles enunciated in Gangadin v. Addl. Deputy Commissioner, Nagpur, 1954 Nag LJ 122 (Sinha C. J. and Bhutt J.). In that case, although the petitioner had left the premises during the pendency of the proceedings, it was observed:--

'The definition is inclusive so far as 'person continuing in possession after the term of his tenancy has expired' is concerned, and it cannot mean conversely that unless one continues in possession after the termination of his tenancy, he cannot be deemed to be a tenant at any time, within the meaning of the Rent Control Order, 1949. Clause 4 obviously contemplates the existence of the relationship of a landlord and tenant when an application is made..... the proceedings, if once validly launched, cannot be defeated merely because he has ceased to be a tenant after their institution.'

It does not appear that this Division Bench decision was brought to the notice of Bishambhar Dayal, C.J. We are also certain that Jhabboolal's case (1966 MP LJ (N) 69) (supra) was also not brought to his notice; otherwise, if he could not persuade himself to agree with those decisions, he would have certainly referred the question to a larger Bench, It was the duty of the counsel who appeared in Kasturchand's case (1972 MPLJ 903) (supra) to have placed these decisions before him. That is a duty to the Court and in this case, more so, to the appellant. In Kasturchand's case (supra) a very senior advocate appeared for the appellant.

12. With greatest respect, we are unable to accept the reasoning contained in paragraphs 4 and 5 of the decision in Kasturchand's case (1972 MPLJ 903). It was for the Court trying the civil suit or the appeal arising therefrom to determine the effect of the decision of the Rent Controlling Authority on the issues in the suit. In a proceeding under the M.P. Accommodation Control Act, it cannot be decided whether the tenant would be able to get a refund from the decree-holder or any other consequence which might flow from the decision of the Rent Controlling Authority. We do not express any opinion on the consequences of the determination of standard rent by the Rent Controlling Authority and the question of rate of rent, which may be in issue in a civil suit in the trial Court, or in appeal arising from the decree passed in the civil suit, It is for the Court dealing with the civil suit to decide whether the tenant will get any refund or adjustment or not, or will be liable to pay more rent than he was liable to pay before fixation of standard rent. All these questions are beyond the scope of the proceedings under Section 10 of the Act, or an appeal arising from the order of the Rent Controlling Authority.

13. The statement of Shri Patel has to be mentioned that after the decision of the Rent Controlling Authority the defendant made an application in the appellate Court for leave to amend the written statement. That application was rejected in the final order passed in appeal from the decree in the civil suit; and that a Second Appeal (No. 67 of 1974) is still pending in this Court. Learned counsel contends that the matter is sub juice.

14. Our attention is attracted by a Single Bench decision in Trammel v. Layman, 1971 MPLJ 888 Para 12. To the extent that it has taken a view contrary to what we have said above, it must be said that the decision in Trammel v. Lax-man (supra) does not lay down the correct law. However, it appears that the question which has been dealt with in that paragraph relates to amendment. We would not express any opinion on the question whether the amendment sought in the second appeal by the tenant in the present case should be allowed or not. That question is not before us at all. Shri Patel has asked our attention to the observations of G.P. Singh, J, in Jagannath Prasad v. Chamanlal. M. (S) A. No. 196 of 1971, D/- 8-2-1972 (Madh Pra), which he dismissed summarily with the following observations:--

'The pendency of civil suit for ejectment does not oust the jurisdiction of the Rent Controlling Authority, because the Civil Court will have no jurisdiction in the suit to determine standard Tent which is a matter falling within the exclusive jurisdiction of the Rent Controlling Authority.'

15. Our answer to the question referred to us is in the affirmative. The Rent Controlling Authority had still jurisdiction to determine the standard rent for the period between the date of the application and the passing of the eviction decree, notwithstanding that a decree for eviction has been passed against the tenant, who had applied for fixation of standard rent under Section 10 of the M.P. Accommodation Control Act, 1961. The case shall now be placed before the single Bench for disposing of the appeal.


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