Skip to content


Gorachand Mullick Vs. Shaik Kallo - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtKolkata High Court
Decided On
Case NumberSuit No. 4859 of 1950
Judge
Reported inAIR1951Cal557,55CWN503
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 9; ;Code of Civil Procedure (CPC) , 1908 - Order 39, Rule 1
AppellantGorachand Mullick
RespondentShaik Kallo
Appellant AdvocateR.C. Deb, Adv.
Respondent AdvocateS. Chatterjee, Adv.
Excerpt:
- .....an injunction from taking any steps or proceedings in respect of the appln. now pending before the rent controller, calcutta, being appln. no. 590 of 1951. the facts are briefly as follows :2. the ptlf. is the owner of premises no. 112 a, harrison road. the deft. is the tenant of a bare plot of land or a plot of land with a hut, which is a matter of dispute. on the footing that the tenancy relates to a bare plot of land, the pltf. has instituted this suit against the deft. for ejectment. the deft. claims that there is a hut on the laud & has sought protection under the provisions of the west bengal premises rent control act, 1950. there can be no doubt that in this suit, the nature of the tenancy will have to be decided, since upon such finding will depend the question as to whether the.....
Judgment:
ORDER

Sinha, J.

1. This is an appln. for an order that the deft., his servants & agents, be restrained by an injunction from taking any steps or proceedings in respect of the appln. now pending before the Rent Controller, Calcutta, being appln. No. 590 of 1951. The facts are briefly as follows :

2. The ptlf. is the owner of premises No. 112 A, Harrison Road. The deft. is the tenant of a bare plot of land or a plot of land with a hut, which is a matter of dispute. On the footing that the tenancy relates to a bare plot of land, the pltf. has instituted this suit against the deft. for ejectment. The deft. claims that there is a hut on the laud & has sought protection under the provisions of the West Bengal Premises Rent Control Act, 1950. There can be no doubt that in this suit, the nature of the tenancy will have to be decided, since upon such finding will depend the question as to whether the pltf. can get a decree for possession at all. The pltf. relies on a letter, said to be written by the deft. to the pltf. dated 19-1-1950. If this letter is genuine, it sets out the tenancy agreement between the parties & describes the premises as 'vacant land'. The case of the deft. is that it is not genuine letter, not in the sense that he did not sign it, but under the following circumstances. He says that in or about July 1950, the pltf. made him to sign two letters on the false representation that they were required for reducing the enhanced rates of assessment by the Corp. & in the hope that if the assessment was reduced he would be allowed to build additional structures. He says that the letters were typed at the pltf's. house & there signed by the deft. The contents were neither read out, nor explained to him, & he says that he is illiterate & unacquainted with the English language, & he would not have signed, had he known the contents. Now, whether this story is true or not, I cannot decide at present. But I have before me the fact, that the pltf. did appeal against the assessment order of the Corp., & tried to prove before the Chief Judge, Small Causes Ct., that the tenancy related to a vacant land & one Karim Mohammad, Asst. of the tenant, gave evidence. The learned Chief Judge, however, did not accept the contention put forward before him & dismissed the appeal.

3. I cannot say, therefore, that the matter is quite beyond dispute. After instituting the suit, the pltf. made an appln. under Ch. XIIIA of our Rules, for summary judgment, but the tenant was given unconditional leave to defend by Mukharji J. The tenant has now made an appln. before the Rent Controller for fixation of the standard rent. Mr. Deb, appearing for the petnr., urges that the issues in this suit & that before the Rent Controller are the same. He says that the Rent Controller has no jurisdiction to decide the point whether the deft. is a tenant in respect of a vacant piece of land or not, & the proceedings before the Rent Controller is vexatious & an abuse of the processes of Court. He further says that it is very inconvenient that two tribunals should proceed to decide this very point & it might be that there would be two conflicting decisions & this should be prevented by the issue of an injunction restraining the deft. from proceeding before the Rent Controller. Mr. Deb relies on 'R'. v. 'Hackney', Islington & Stoke Newington Rent Tribunal; Ex parte Keats' (1950) 2 All. E. R. 138. In that case, there was a written tenancy agreement, whereby the demised premises was to be used as a tailoring establishment. The English Landlord & Tenant (Rent Control) Act 1949, relates only to dwelling houses, & as such, the tribunal had no jurisdiction in the case of premises used for commercial purposes. The tribunal appears to have had no jurisdiction to take evidence on oath. Nevertheless, the tribunal proceeded to invest themselves with jurisdiction, & solemnly decided that the document was a 'sham' one. In an appln. for the issue of a writ of certiorari, Lord Goddard said as follows :

'In any event, it was not a matter for them to decide, & they should have told the tenant that they declined to enter on the case, & if he said that the agreement was not a true agreement, or did not truly represent the bargain made, he must go to a Ct. of equity & get it rectified. The tribunal had no jurisdiction to proceed unless & until that agreement had been found to be sham or not properly or truly to contain the terms of the bargain made. The tribunal, however, without being able to take sworn evidence or have any pleadings before them or, for all I know, without being able to understand the doctrines on which the Ct. of equity proceeds, when it has to exercise this very delicate jurisdiction of rectifying written agreements, proceeded to rectify the documents themselves, in the sense that they held that it did not represent the terms of the contract between the parties. They had no power for a moment to decide that question'.

4. In respect of this decision, the following points must be observed : (1) that the appln. was for the issue of a high prerogative writ & not for a mere injunction in a civil suit (2) that the rent tribunal had no power, either to have pleadings or examine witnesses on oath (3) that the tribunal, instead of merely determining the rent, proceeded to determine the validity of the tenancy agreement, & without any sworn testimony, decided that the document was 'sham'. There can be no question that the rent tribunal under the English Act could not declare a document as void. Nor, for the matter of that, can the rent tribunal under the local Act, even though it can have, & does in actual practice have, pleadings & sworn testimony. That is not within the scope of the Rent Act at all. All that the Rent Controller has power to do, is to fix the standard rent (Section 9) according to the provisions of the Rent Act. Incidentally, however, he might have to go into the question as to whether the appct. before him was a 'tenant' or not as defined by the Rent Control Act, but that is entirely a 'collateral' matter, & neither is his findings res judicata, in properly instituted proceedings to adjudicate the title, nor in the process of his findings can he be permitted to exceed his jurisdiction, & set aside documents on grounds of equity. I do not take Lord Goddard's observations as meaning that the Rent Controller cannot even go into the question collaterally. All that he says is that the tribunal could not assume the jurisdiction of an equity Ct. & set aside documents. With that observation, I respectfully agree. If the Rent Controller cannot even go into the question collaterally, as to whether the petnr. is a 'tenant' or not, then in most cases he cannot fix the standard rent at all. Whenever a tenant makes an appln. the landlord may say that he is not a 'tenant' as defined by the Act. If the law were that the Rent Controller would at once be 'functus officio', then the whole Act should be rendered nugatory. The English Authorities are quite clear that an inferior tribunal can deal with such questions collaterally. In the case of 'In re Bailey' (1854) 3 El Bl. 607, the question arose as to whether a person had absented himself from service. It was held that the question whether he was a 'servant' was a collateral question that can be gone into. In 'R v. Manchester Justices' (1899) 1 Q. B. 571 oh an appln. for a license to sell intoxicating liquors, to be granted to the real 'resident & occupier' the question as to whether a person was the real resident & occupier, was held to be a collateral question which could be gone into. In 'R v. Armagh Justice, (1924) 2. I. R. 55 C. A.' Justice having power to authorise the entry on lands 'not being an orchard', it was held that the question whether the land in question was an orchard was a collateral question which could be gone into. All this however is subject to a very important principle namely that an inferior tribunal cannot, by wrongfully deciding a collateral question, vest itself with jurisdiction. If it does, the H. C. by a writ of certiorari can inquire into the correctness thereof & if necessary quash the proceedings (Halsbury Vol. 9 pp. 881-882. Brown v. 'Cocking' (1868) 3 Q. B. 672. In deciding a question collaterally, the rent tribunal is further restricted by the nature of the issue raised & the evidence with which it has to deal with. It cannot set aside documents on equitable grounds, so that, if there is a tenancy agreement executed by the parties, it cannot enter into questions as to whether it was procured by fraud or coercion or such other questions. It is also quite clear that the decision on such a collateral question is not res judicata in properly constituted proceedings for adjudication of title, or for setting aside documents, & the like.

5. In the present case, the Rent Controller has not heard the matter at all, so that I am not in a position to say whether he is going to exceed his jurisdiction. I cannot presume that he will do so. If he does exceed his jurisdiction, he can be corrected by appropriate proceedings. Besides, his findings are now subject to appeal, & I cannot presume that if he exceeds his jurisdiction, the appellate Ct. will not set him right. Mr. Deb next contends that the proceedings before the Rent Controller are vexatious & an abuse of the processes of the Ct. I do not see how that is so. The Rent Controller has come into existence as a special tribunal before whom a tenant can get his rent standardized. Recourse to such a tribunal cannot be either vexatious or an abuse of the processes of the Ct. On the contrary, the law is that the Cts. should not restrain the same, in Halsbury Vol. 18 p. 120, the law is stated thus :

'Where Parliament has constituted a tribunal for a special purpose, the Ct. cannot restrain persons who are entitled to do so from applying to it. No equity can be found on an allegation that a Ct. legally constituted is not properly competent to decide questions within its jurisdiction.'

6. This has also been reld. on by Bose J. in 'Shyama Devi' v. 'Ramlal Singh. 86 C. L. J. 297.

7. I asked Mr. Deb whether he can give me an authority for saying that a proceeding is vexatious or an abuse of the process of Ct. where a litigant believes that the tribunal before whom he has instituted such proceedings has jurisdiction, although it may ultimately transpire that it has not. He has not been able to give me any authority for so startling a proposition. Learned Counsel next urges that it is inconvenient that the same issue should be tried before two Cts. I do not see the inconvenience of it. It is not before two Cts. of equal jurisdiction. All that the Rent Controller can do, if satisfied that the petnr. is a tenant, is to fix the standard rent. That decision will not bind this Ct. in this suit, in the sense, that it can still proceed on to decide whether the deft. is a 'tenant' under the Rent Control Act. If it decides that the deft. is not such a 'tenant' the standardization of rent will be entirely ineffective, as there will be no rents to standardize, but if it holds that the deft. is a 'tenant' as defined by the Act, the landlord cannot charge more than the rent so standardized, I cannot see how the land lord is at all prejudiced. If in course of the proceedings the Rent Controller exceeds his jurisdiction, the landlord has his legal remedies. In my opinion, however, an appln. for injunction at this stage is not maintainable & should not be granted. Regard being had to the nature of the deft's defence, I think that the costs of this appln. should be costs in the cause.


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