Skip to content


Deshraj Vs. Akhtar Hussain - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1961SC148; [1961]1SCR665
ActsAccommodation Control Act, 1950 - Sections 7 and 7(2); Accommodation Control Ordinance, 2004-S; Code of Civil Procedure (CPC), 1908 - Sections 115; Constitution of India - Article 227
AppellantDeshraj
RespondentAkhtar Hussain
Excerpt:
.....suit filed after due notice - thereafter ordinance was replaced by act and appellant filed a fresh suit - notice given by appellant was a proper notice - no words in the act that the notice should issued as under the act - appeal allowed - haryana general sales tax act (20 of 1973)section 13b & 25a & haryana general sales tax rules, ruler 28a (5) & 28a (8) clause (a) & punjab general clauses act, section 19: [ r.v. raveendran & p. sathasivam, jj] withdrawal of eligibility certificate issued under rule 28a (5) held, the eligibility certificate issued under sub-rule (5) of rule 28a cannot be withdrawn on a ground other than the ground specified in clause (a) of sub-rule (8). therefore, non-production of noc/clu certificate by itself cannot be a ground for withdrawal as it is not one..........for want of jurisdiction, thereupon on april 28, 1950, the appellant filed the suit before the rent controller out of which this appeal has arisen. in the suit the prayed for the fixation of fair rent at rs. 20 per month. the respondent pleaded inter alia that the suit could not be instituted before the rent controller and that the suit was incompetent because no notice under s. 7(2) of the act had been given. 4. both the pleas of the respondent were overruled and the rent controller held that the notice which the appellant had given prior to the institution of the first suit was a proper notice and the decreed the suit and fixed the fair rent at rs. 483 per annum. the respondent took an appeal to the district judge who upheld the order of the rent controller but the question of.....
Judgment:

Kapur, J.

1. This is an appeal against the judgment and order the High Court of Madhya Bharat at Gwalior and arises out of proceedings between a landlord and his tenant taken under the Accommodation Control Act (XV of 1950) which, for the Sake of brevity, will be termed the Act.

2. On March 14, 1948, the appellant took two houses in Morar from the respondent at a monthly rental of Rs. 80 plus other charges at Rs. 5 per month.

3. On October 20, 1948, the appellant brought a suit for fixation of rent in the court of the Cantonment Magistrate at Morar under the provisions of Accommodation Control Ordinance (Ordinance XX of 2004-S.). The Act was passed on January 25, 1950, and came into force on February 10, 1950. Because of the passing of the Act the plaint was returned on March 20, 1950, for want of jurisdiction, Thereupon on April 28, 1950, the appellant filed the suit before the Rent Controller out of which this appeal has arisen. In the suit the prayed for the fixation of fair rent at Rs. 20 per month. The respondent pleaded inter alia that the suit could not be instituted before the Rent Controller and that the suit was incompetent because no notice under s. 7(2) of the Act had been given.

4. Both the pleas of the respondent were overruled and the rent Controller held that the notice which the appellant had given prior to the institution of the first suit was a proper notice and the decreed the suit and fixed the fair rent at Rs. 483 per annum. The respondent took an appeal to the District Judge who upheld the order of the Rent Controller but the question of notice under s. 7 was not raised in that court. The respondent then filed a Revision Petition in the High Court under s. 115 of the Code of Civil Procedure and under Art. 227 of the Constitution. The High Court held that notice under s. 7 was a condition precedent to the institution of the suit; that as no such notice was given the Rent Controller had no jurisdiction to make the order. The High Court also held that the Rent Controller had passed a decree which operated retrospectively from the date of the execution of the lease deed which the Controller had no authority to decree. It was further held that the original suit was properly instituted in the civil court and the passing of the Act did not take away the jurisdiction of that court and therefore the civil court should not have returned the plaint of the appellant.

5. The principal question for decision is whether a suit could be instituted without a fresh notice because of s. 7(2) of the Act That section provides :

'Where no rent for any such accommodation has been agreed upon or where the landlord wishes to enhance, or the tenant wishes to reduce the rent agreed upon, the landlord or the tenant, as the case may be, by giving notice in writing to that other party shall proceed for having the rent fixed under subsection (4)'.

6. All that this section contemplates in that a notice should be given. There are no words which make it obligatory that the notice should be issued in terms as under the Act and be given after the Act came into force nor has it prescribed any particular form. The trial court held that a proper notice had been given and therefore s. 7 was applicable. No such question was raised in appeal before the District Judge and therefore it was not adjudicated upon. The question however was raised before the High Court. In our opinion it cannot be said that the notice which was given by the appellant was not a proper notice nor does the section mean, as contended by the respondent, that the notice had to be given as under and after the Act came into force. As we have said above it is significant that third point was never taken before the District Judge.

7. Lastly the High Court held that the plaint should not have been returned by the civil court because the suit for fixation of fair rent related also to a period prior to the Act. Fairly construed the order of the Rent Controller does not operate retrospectively from the date of the beginning of the lease but appears to us to be prospective and after the coming into operation of the Act the jurisdiction was vested in the Rent Controller and not in the civil court. This point therefore has no substance.

8. In the result this appeal is allowed and the judgment and order of the High Court are set aside and that of the trial court restored. The appellant will have his costs throughout.

9. Appeal allowed.


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