Skip to content


Jiwana Mal Vs. Khushi Ram - Court Judgment

LegalCrystal Citation
SubjectTenancy;Contract
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 756 of 1951
Judge
Reported inAIR1953P& H70
ActsWest Punjab Urban Rent Restriction Act, 1949 - Sections 13 and 13(2); Indian Contract Act, 1872 - Sections 38; Constitution of India, 1950 - Article 227
AppellantJiwana Mal
RespondentKhushi Ram
Appellant Advocate Shamair Chand, Adv.
Respondent Advocate Rajindar Nath Aggarwal, Adv.
DispositionRevision dismissed
Cases ReferredNarain Das v. Abinash Chandar
Excerpt:
.....by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - if the controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied- (i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any..........of jiwana mal tenant on the ground of non-payment of rent. that application was rejected by the rent controller on 19th november, 1949. 3. from the order passed by the rent controller on 19th november 1949, the landlord appealed under section 15 of the act. 4. in the appellate proceedings the point that arose for decision was whether the tenant had complied with the requirements of the proviso to section 13 (2) (i) of the act. section 13 (2) (i) of the act reads:'a landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. if the controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied- (i) that the tenant has not paid or tendered the rent due by him in respect of the building or.....
Judgment:

Harnam Singh, J.

1. Jiwana Mal tenant applies under Article 227, Constitution of India that the orders passed by the District Judge, Ferozepur, in Miscellaneous Civil Appeal No. 186 of 1950 may be set aside. By that order the District Judge has directed the eviction of Jiwana Mal tenant from the shop let to him by Khushi Ram landlord.

2. Briefly summarized the facts of the case are these. On 11th August 1949, Khushi Ram landlord applied under Section 13, Punjab Urban Rent Restriction Act, 1949, hereinafter referred to as the Act, for the eviction of Jiwana Mal tenant on the ground of non-payment of rent. That application was rejected by the Rent Controller on 19th November, 1949.

3. From the order passed by the Rent Controller on 19th November 1949, the landlord appealed under Section 15 of the Act.

4. In the appellate proceedings the point that arose for decision was whether the tenant had complied with the requirements of the proviso to Section 13 (2) (i) of the Act. Section 13 (2) (i) of the Act reads:

'A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied-

(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable:

Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent, per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid; the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate.'

5. In the present case the tenant filed written statement on 29th October 1949, and in that statement pleaded that the sum of Rs. 885/- which he was depositing under protest should not be paid to the landlord till the decision of the application. Indeed, on 29th October 1949, the tenant applied that he may be permitted to deposit Rs. 885/- under protest. On that application the Controller ordered that Rs. 887/8/- should be deposited. Pursuant to the orders passed by the Rent Controller the sum of Rs. 887/8/- was deposited. On 18th November, 1949, the tenant applied that it should be ordered that till the final decision of the case the money which he had deposited under protest should not be paid to the landlord. In the circumstances stated above, the appellate authority has come to the conclusion that the deposit made on 29th October 1949, did not satisfy the requirements of the proviso to Section 13 (2) (i) of the Act.

6. In -- 'Narain Das v. Abinash Chandar',AIR 1922 PC 347, Lord Buckmaster said:

'The tender was accompanied by a condition which prevented it being a perfect and complete tender, and the respondent was under no obligation to accept it. It follows, therefore, that that cannot be regarded as the equivalent of payment, and that sum, if it be still in the control of the appellant, should be handed over to the respondent as part of the payment which he has to make.'

7. Section 38, Contract Act, 1872, provides that offer of performance must be uncondi- tional. Clearly, the offer made on 29th of October 1949, was not unconditional to be effective. If so, the appellate authority was right in finding that the deposit made by Jiwana Mal tenant did not satisfy the requirements of the proviso to Section 13(2) (i) of the Act. In any case, the decision that the requirements of the proviso to Section 13 (2) (i) of the Act are not satisfied raises a mixed question of law and fact and I apprehend that the correctness of such a decision does not fall for examination under Article 227 of the Constitution. The power of superintendence given to the High Courts under Article 227 of the Constitution is not a power to correct errors, otherwise it would be tantamount to a power to entertain appeals on law and fact. Indeed, there is ample authority that powers of superintendence under Article 227 should be exercised only in cases where the Courts and Tribunals have done something which they were not competent to do.

8. No other point arises in these proceedings.

9. In the result I would dismiss with costs Civil Revision No. 756 of 1951.

Kapur, J.

10. I agree that this revision should be dismissed and I am of the opinion that the money deposited by the petitioner with the condition added was not a tender or payment as required by the section of the Punjab Act and on this ground I would affirm the order of the learned District Judge acting as an appellate authority.

11. With regard to the interpretation to be put on Article 227, it is not necessary to give an opinion in this case and I would not restrict it to the extent that my learned brother has clone.

12. In the result this petition fails and the rule is discharged with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //