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Ram Nath Vs. Kalu Ram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 215 of 2005
Judge
Reported inAIR1953Raj10
ActsJaipur Rent Control Order, 1947; Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 8, 27, 27(2) and 30
AppellantRam Nath
RespondentKalu Ram
Appellant Advocate B.P. Agarwal, Adv.
Respondent Advocate D.M. Bhandari, Adv.
DispositionAppeal dismissed
Cases ReferredCanada Cement Co. Ltd. v. La Ville De Montreal Est
Excerpt:
.....both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - under the circumstances the suit cannot be dismissed for failure to produce the certificate. the legislature therefore, clearly intended that no benefits of jaipur order would accrue to the areas not governed by the act after the jaipur order was repealed by the act. moreover, the learned counsel for the defendant failed to point out any action in the present case which might be said to have been taken under jaipur order......commencement of the order with the prayer for recovery of possession, the court shall stay such suit, appeal or application and require the plaintiff or decree-holder as the case may be to produce a certificate under clause 8 from the controller. if such certificate is not produced within the period fixed for the purpose or within such extended period as the court may from time to time allow, the suit, appeal or application as the case may be shall be dismissed'.so long as the jaipur order was in force, it cannot be denied that under sub-clause 2 of clause 11 a certificate under clause 8 was necessary. as the suit was instituted prior to the 1st november, 1945 the court was required to stay the suit and require the plaintiff to produce the certificate under clause 8. during the.....
Judgment:

Sharma, J.

1. This is a second appeal by defendant Ram Nath against the judgment and decree of the District Judge Jhunjhnu. The case was instituted on the 19th May 1945 and was decreed on the 10th March 1948 by the Civil Judge, Jhunjhnu. The defendant filed an appeal against the judgment and decree of the Civil Judge in the Court of the District Judge, Jhunjhunu. Before the district Judge an objection was taken by the defendant that under Clause 11 (2) of Jaipur Rent Control Order 1947 (hereinafter to be referred to as 'Jaipur order') a certificate from the controller was necessary. This objection was overruled and the appeal was dismissed. Against this judgment and decree of the District Judge, the defendant has come in second appeal.

2. The appeal raises a short but important point of law. On behalf of the appellant, it has been argued by Mr. Agarwal that according to Sub-clause 2 of Clause 11 of the Jaipur Order the suit of the nature referred to in Sub-clause 1 of Clause 11 instituted prior to the 1st November 1945 or an appeal therein pending at the commencement of the order was bound to be stayed and the plaintiff was bound to produce a certificate under Clause 8 from the controller. In case of non-production of such certificate within the period fixed for the purpose or within such extended period as the court might from time to time allow the suit or appeal, as the case might be, was bound to be dismissed. Under Sub-clause 1 of Clause 11 so long as the Jaipur order was in force no court was to have jurisdiction to entertain, try and decide any suit for ejectment or possession arising out of an agreement of existing or intended tenancy unless the plaintiff produced a valid certificate under Clause 8 from the Controller in that behalf. It has been argued that as the suit was instituted prior to 1st November 1945 and was of the nature referred to in Clause 11 (1) a certificate from the Controller under Clause 8 was necessary and time was taken by the plaintiff's counsel for filing such a certificate in this court. Three month's time was allowed but the plaintiff did not file the required certificate. The suit was, therefore, bound to be dismissed under Clause 11 (2) of Jaipur Order and consequently this appeal should be allowed.

3. On behalf of the respondent it was argued by Mr. D.M. Bhandari that shortly after timewas obtained by the plaintiff for obtaining a certificate under Clause 8, Jaipur Order was superseded by Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as Rajasthan Act). Under the said Act, the town of Udaipur where the property in suit is situated was not included among the towns to which the Act applied. There was no Controller too for the said town after the expiry of Jaipur order. It was, therefore, physically impossible for the plaintiff to obtain any certificate. The fact that Udaipur was excluded from the list of towns to which the Rajasthan Act applied and it was not provided as to what will be the authority to grant certificates in those towns to which Jaipur Order applied but Rajasthan Act did not show that the legislature did not intend that Clause 8 or 11 of Jaipur Order should apply to this town anymore. Under the circumstances the suit cannot be dismissed for failure to produce the certificate. Mr. Agrawal replies that under Clause 30 of the Rajasthan Act an action taken before the date on which Jaipur Order was repealed by Rajasthan Act was required to be continued until varied or superseded under the said Act.

4. I have considered the arguments of the learned counsel for both the parties and have also perused Jaipur Order and Rajasthan Act. The town of Udaipur (Jaipur District) is not included in the list of towns to which Rajasthan Act applies. Under the Rajasthan Act, therefore, no certificate is necessary for the ejectment of a tenant in that town. When the suit was filed it was not necessary to obtain any certificate for a suit of the present nature as the Jaipur Order had not come into force till then. Of course during the pendency of the suit in the Civil Judge's court, Jaipur Order came into force and Clause 11 (1) provided that so long as the said order was in force

'no court shall have jurisdiction to entertain, try and decide any suit for ejectment or possession arising out of an agreement of existing or intended tenancy unless the plaintiff produces a valid certificate under Clause 8 from the Controller in that behalf'.

Sub-clause 2 provided

'If in any court a suit of the nature referred to in Sub-clause (1) which has been instituted prior to 1st November 1945 or an appeal therein is pending at the commencement of the order or application for the execution of a decree for ejectment passed in any such suit or appeal is so pending or made after the commencement of the order with the prayer for recovery of possession, the court shall stay such suit, appeal or application and require the plaintiff or decree-holder as the case may be to produce a certificate under Clause 8 from the Controller. If such certificate is not produced within the period fixed for the purpose or within such extended period as the court may from time to time allow, the suit, appeal or application as the case may be shall be dismissed'.

So long as the Jaipur order was in force, it cannot be denied that under Sub-clause 2 of Clause 11 a certificate under Clause 8 was necessary. As the suit was instituted prior to the 1st November, 1945 the court was required to stay the suit and require the plaintiff to produce the certificate under Clause 8. During the pendency of this appeal the plaintiff obtained time to produce the required certificate and by the order dated 15th October 1950 he got 3 months' time. Fortunately for the plaintiff and unfortunately for the defendant shortly after, the Jaipur Order was repealed by the Rajasthan Act which received the assent of the Rajpramukh on 28th November 1950. This Act has not been applied to the town in question. There remains no controller for the said town after the coming into force of the Rajasthan Act. This happened before the period of three months granted to the plaintiff expired. There was no authority in existence whom the plaintiff could approach after the 28th November to grant him a certificate under Clause 8 of Jaipur order in respect of the property situated in Udaipur. In -- 'Canada Cement Co. Ltd. v. La Ville De Montreal Est', (1922) 1 A.C. 249, it was held by the Privy Council that the Appellate Court having been abolished by new law, the right of appeal under the old law ceased on the repeal of old law and the passing of the new one. In the present case, the Controller for Udaipur town has ceased to exist by virtue of the new law passed. There is, therefore, no authority to whom the plaintiff might go for obtaining the required certificate.

5. Section 27 (2) of the Rajasthan Act provides

'Except as is otherwise provided by or under this Act all cases which are, at the commencement thereof in any area to which it has been extended under Section 2, pending before a Controller or any other authority appointed by or under any law in force therein immediately before such commencement, shall, notwithstanding anything to the contrary in this Act, be determined and disposed of by such Controller or authority in accordance with such law'.

It is significant that while such a provision has been made in the case of areas to which the Act applies, no such provision has been made in the case of those areas to which the Act does not apply. The Legislature therefore, clearly intended that no benefits of Jaipur Order would accrue to the areas not governed by the Act after the Jaipur Order was repealed by the Act.

6. It was argued that under Proviso to Section 30 anything done or action taken before the date on which the said section came into operation under the laws hereby repealed shall, until varied or superseded under the Act, continue and be deemed to have been done or taken, as the case may be, under or in pursuance of the Act if it were then in force.

7. First of all reading Section 30 with Section 27 of the Act, it seems to me that actions contemplated by the Proviso to Section 30 are the actions taken in the case of areas to which the Act applies and not in the case of those areas to which the Act does not apply. Moreover, the learned counsel for the defendant failed to point out any action in the present case which might be said to have been taken under Jaipur order.

8. To my mind the arguments of the learnedCounsel for defendant appellant are devoid offorce.

9. The appeal is dismissed but consideringthe circumstances of the case I make no orderas to costs thereof.


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