1. This is a petition under Article 133 of the Constitution for leave to appeal to the Supreme Court against the Division Bench decision of this Court an A. H. O. No. 2 of 1960 (reported in AIR 1962 Orissa 149), dismissing the suit of petitioner No. 1 (T. S. No. 143 of 1955 filed in the Court of the Munsif of Berhampur) for eviction of a tenant (opposite party respondent) from his house situated in Berhampur Town.
2. The plaintiff (petitioner No. 1) is admittedly the owner of the suit house and his title as owner is never under challenge. The opposite party was admittedly a monthly tenant. The rent of the suit house was raised to Rs. 120/- per month by the Orissa House Rent Controller acting under the provisions of the Orissa House Rent Control Act, 1050 (Act XI of 1951). After the expiry of the Act, the plaintiff brought a suit for eviction of the opposite party after giving him the usual notice to quit. He also claimed damages for use and occupation of the house, at the rate of Rs. 350/- per month from the date of expiry of the tenancy. The main controversy before the lower courts was regarding the validity of the notice to quit and quantum of damages to which the plaintiff was entitled.
The learned trial Court held that the tenancy was determined by a valid notice and hence decreed the suit for eviction and assessed the quantum, of damages for use and occupation, of the house at Rs. 120/- per month. On appeal the learned District Judge, maintained the order of the trial Court. A second appeal against this appellate order of the district Judge (Pravas Ch. Poddar v. V. Kasi Biswanadham Rajoo, Second Appeal No. 220 of 1957 (Orissa)), was dismissed by a single Judge of this Court. Thereafter the matter came up before a Division Bench of this Court in A. H. O. No. 2 of 1960 (reported in AIR .1962 Orissa 149). That Bench while holding that the notice determining the, tenancy was valid, nevertheless came to the finding that in consequence of the coming into force of the new Orissa House Rent Control Act of 1958 (Act 31 of 1958) a suit in the Civil Court for eviction of a tenant from a house, was barred and the only remedy available was by way of an application) to the House Rent Controller as provided in Section 7 of that Act. There was keen controversy between the parties as to whether the new Act would apply to pending appeals also. The aforesaid Division Bench held that the definition of the expression 'tenant' in the said Act was expressly made wider so as to include even those tenants against whom though decrees for eviction has been passed by the lower Civil Court, appeals were pending on the date of coming into force of the Act. Hence the suit was dismissed.
3. The plaintiff himself had valued the suit in the court of first instance, both for purposes of Court-fee and jurisdiction at Rs. 2163-10-0. Hence, though the Division JBench decision of this Court is a reversing decision the valuation as given by the plaintiff will not satisfy the requirement of Sub-clause (a) of Clause (1) of Article 133 of the Constitution. Mr. Ramdas for the plaintiff however urged that leave to appeal may be granted under Sub-clause (b) of Clause (1) of that Article inasmuch as the Bench decision indirectly affected the plaintiff's right to take actual possession of the disputed property whose value is far in excess of Rs. 20,000/-. This is indeed the main controversy here.
4. There seems to be a sharp cleavage of judicial opinion regarding the interpretation of Sub-clause (b) of Clause (1) of Article 133. That Sub-clause refers to judgments which 'involve directly Or indirectly some claim or question respecting property of the like amount or value.' If the words 'like amount or value' are construed to qualify only the previous word 'property' and not the entire expression 'some claim or question respecting property' Mr. Ramdas's contention might have some force. It may then be argued that as the value of the disputed property is far in excess of Rs. 20,000/- the deprivation of the owner of the house of possession of the same, by the Division Bench decision of this Court, may bring into operation the said sub-clause. Direct authority for such a view is found in the Allahabad decision reported in (S) AIR 1956 All 348, Central Talkies v. Dwarka prasad, following an earlier Bombay view taken in Kastur Bhai v. Hiralal, AIR 1923 Bom 23(1).
5. The contrary view seems to be that file words 'like amount or value' qualify not merely; the word 'Property' occurring immediately before them, but the entire expression 'some Claim or question respecting property' find, that for the purpose of determining the valuation one must see the property right, that is in dispute.
Thus in AIR 1949 Pat 448, Satibala Dasi v. Chota Nagpur Banking Association, AIR 1950 EP 195, Tej Krishen v. Delhi Cloth and General Mills Co. Ltd. and AIR 1960 Andh pra 286 (FB), Smt. Kishore Devigaru v. B.G. Chorani, it was held that for the purpose of the aforesaid sub-clause (whose language is identical with the 2nd paragraph of Section 110, C. P. C.) it is the detriment to the petitioner which governs valuation whatever may be the value of the property in suit. In the last mentioned Andhra Pradesh case the previous decisions on the subject have been fully discussed and if was held that 'regard must be had to all the matters that necessarily result from the judgment appealed from and operate to the prejudice of the appellant.'
6. It is unnecessary here to discuss the relative merits of the two aforesaid views. It is sufficient to say that, with respect, I am inclined to accept the latter view, and hold that the valuation must be determined with reference to the property right of the appellant-petitioner, in respect of which prejudice has been caused to him by the judgment appealed against.
7. In the instant case, as already pointed out, nobody disputed the title of the plaintiff as the full owner of the house. Similarly, none questioned his right to possession of the house as landlord and to receive the fair rent fixed for the same. The only question was whether the tenant was liable to be evicted by the Civil Court in view of the express bar imposed by the new Orissa House Rent Control Act, 1958 (Act 31 of 1958). Section 7 of that Act says that a suit for eviction of a tenant can be brought only before the House Rent Controller and not before the Civil Court. The Act came into force in Berhampur Town on 1st January, .1959. It is a temporary Act, which as stated in Section 1 (4) was intended to be in force for a period of five years from the date of its commencement. Though one cannot predict now as to whether the Legislature would extend the life of the Act for a further period, or place it permanently on the statute book, nevertheless, at present we must consider the law as it stands without going into hypothetical considerations as to what the Legislature may do in future. Thus the detriment to the plaintiff arising out of the judgment of the Division Bench of this Court is the deprivation of his right to actual occupation of the disputed house for a period of five years from the date of commencement of Orissa Act 31 of 1958, i.e. from 1st January, 1959 to 31st December, 1963. In respect of all other rights in the house the plaintiff's claim was confirmed.
8. The valuation of this detriment to the property right of the plaintiff presents some difficulty. The fair rent of the house was fixed by the learned Munsif at Rs. 120/- per month and this was not challenged by the plaintiff when the matter was taken up on appeal before the learned District Judge. Thus the net annual income of the plaintiff from the disputed house was Rs. 1440/-. As the suit was filed on 13th May, 1955, and even if the total valuation be calculated on the basis of the income for a period of nine years, from 1955 to 1963, it will be far below the limit of Rs. 20,000/- fixed either in Sub-clause (a) or (b) of Clause (1) of Article 133.
9. Though there is no direct decision applicable to the present case there are some observations in Radha Charan v. Secy. of State, AIR 1943 All 238, which are helpful. There the question was how the valuation should be made for the purpose of paying compensation to the landlord and tenant of a house when it was acquired under the Land. Acquisition Act. It was held that though compensation for the owner of the house may be on the basis of 20 years purchase, that principle will not apply to a lessee, who should get compensation on the following principle :
The amount of compensation he would get would depend on the terms of the lease and the length of time that he might be expected to remain in possession of the property.
Here the respondent as the lessee, can remain in possession of the disputed house, without being evicted by a decree of the Civil Court, only till the date of expiry of Orissa Act 3.1 of 1958. Even this right can at best be only a precarious right because it will still be open to the landlords during the life-time of the Act to take steps for evicting the tenant by taking recourse to Section 7 of the Act and applying to the House Rent Controller. It is this precarious right of the tenant which operates to the detriment of the plaintiff and its valuation can never come up to Rs. 20,000/-in view of the unchallenged position that the fair rent of the house was fixed at Rs. 120/- per month. The correctness of this sum was never challenged in appeal by the plaintiff. J must, therefore, hold that neither Sub-clause (a) nor Sub-clause (b) of Clause (1) of Article 133 of the Constitution would apply here.
9a. Mr. Ramdas then contended that leave may be granted under Sub-clause (c) of Clause (1) of Article 133, urging that the construction of the expression 'tenant' occurring in the said Act 31 of 1958 as given by the Division Bench of this Court may affect decrees for eviction obtained by many other landlords prior to the commencement of the aforesaid Act, It is true that the said judgment of the Division Bench may affect several decrees for eviction but that result happens in respect of any judgment of this court in view of its effect as a precedent. But on that account alone J do not think we can certify the case to be a fit one for appeal to the Supreme Court. The expression 'tenant' occurring in that Act was so drafted as to give some retrospective effect to the Act so as to affect decrees for eviction passed prior to the commencement of the Act. The controversy was only with regard to the extent of the retrospectivity, that is to say, whether it would apply to tenants regarding whom appeals were pending on the date of commencement of the Act. We do not think that the interpretation of the expression 'tenant' as given in the Division Bench judgment raises a substantial question of law of such far reaching private or public importance as to justify our granting a certificate to the effect that this is a fit case for appeal, to the Supreme Court under Sub-clause (c) of Clause (1) of Article 133 of the Constitution.
10. For these reasons the petition for leave to appeal is rejected with costs.
Hearing fee is assessed at Rs. 50/- (Rupees fifty only).
11. I agree.