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Ashutosh Bhattacharjee Vs. Mahendra Nath Roy - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 207 of 1947
Judge
Reported inAIR1951Cal391,54CWN813
ActsCalcutta House Rent Control Order, 1943
AppellantAshutosh Bhattacharjee
RespondentMahendra Nath Roy
Appellant AdvocateParesh Nath Mukherjee (Jr), Adv.
Respondent AdvocateHimanshu Chandra Choudhury, Adv.
Excerpt:
- .....permission was on that day required to be taken under the then provisions of the calcutta house rent control order, 1943. during the pendency of the suit para 9a was added by an order dated 19-5-1944, to the calcutta house rent control order. paragraph 9a provided for suits to be filed after the promulgation of this new provision as also for pending suits. it was provided that after 19-5-1944, no new suit could be entertained by a court unless the requisite permission had been obtained from the rent controller.'where any such suit or proceeding by a landlord is pending in any ct on the twenty second day of may 1944, no decree or order for the recovery of possession of the house in respect of which such suit or proceeding is pending shall be made by such court on any of the grounds.....
Judgment:

R.P. Mookerjee, J.

1. The plaintiff-appellant filed a suit for ejectment on the ground that he required the premises for his own use and occupation. This suit was filed on 10-5-1944 without obtaining any permission from the Bent Controller as no such permission was on that day required to be taken under the then provisions of the Calcutta House Rent Control Order, 1943. During the pendency of the suit Para 9A was added by an order dated 19-5-1944, to the Calcutta House Rent Control Order. Paragraph 9A provided for suits to be filed after the promulgation of this new provision as also for pending suits. It was provided that after 19-5-1944, no new suit could be entertained by a Court unless the requisite permission had been obtained from the Rent Controller.

'Where any such suit or proceeding by a landlord is pending in any Ct on the twenty second day of May 1944, no decree or order for the recovery of possession of the house in respect of which such suit or proceeding is pending shall be made by such Court on any of the grounds specified in the said Clause (c) unless the landlord has been permitted by the Controller by an order in writing under Sub-paragraph (3) to institute such suit or proceedings or to prosecute the suit or proceedings so pending, as the case may be, and has produced before such Court proof that such permission has been granted.'

This particular suit was pending on 22-5-1944, and it appears that an attempt was made by the plaintiff-landlord to obtain permission from the Rent Controller but he was not successful. He went on appeal to the Court of the District Judge against the order refusing permission but with no better results. After the failure of the plaintiff to obtain permission the defendant moved the Court for deciding the question whether the suit was maintainable thereafter or not. The plaintiff raised a new point during such hearing contending that Para 9A, Calcutta House Rent Control Order was ultra vires of the Constitution. This latter objection was overruled and the learned munsif dismissed the suit.

2. On an appeal being taken by the plaintiff to the Court of the District Judge, the objection as to Para 9A, Rent Control Order being ultra vires was re-agitated. The District Judge found in favour of the defendant. An alternative argument was advanced on behalf of the plaintiff before the lower appellate Court contending that the trial Court was not entitled to dismiss the suit, as, under Para 9A the Court was entitled only to stay the hearing of the suit. Although the District Judge found that there was some force in this argument, but as there was no certainty as when this temporary piece of control would be removed, the order of dismissal was allowed to stand.

3. The plaintiff has come up on appeal before this Court and the only point urged is that under Para 9A the Court was not entitled to dismiss the suit and that in any view Para 9A being not now in force there can be no objection to the suit being tried on the merits. The latter part of sub-para (1) of para 9A, House Rent Control Order no doubt provides for withdrawing the jurisdiction of the civil Ct from passing a decree unless a particular condition was fulfilled. There is no provision giving jurisdiction to the Ct to dismiss a pending suit on that ground. This question has now become of academic interest only as the Calcutta House Rent Control Order itself has been superseded by other pieces of legislation. In the suit as framed by the pltf various other questions arose for decision particularly if the defence be taken into consideration. There is no reason now why the pltf should not have an opportunity, because of the altered circumstances, to have the suit tried on the merits as there is now no bar as had originally been provided in para 9A.

4. The pltf is entitled to this order principally because on the date the suit had been filed para 9A, Calcutta House Rent Control Order was non-existent. If during the pendency of a suit certain temporary legislation is enforced which does not directly authorise the Ct to dismiss a suit for the non-fulfilment of certain conditions and if before that suit is finally disposed of by the appellate Ct that bar is removed, the pltf should not be denied the privilege of having the suit tried out which is stated to have been in order on the date it had been filed.

5. This appeal is accordingly allowed, the judgments & decrees of the Cts below are set aside & the case is remitted to the trial Ct for the hearing of the suit according to law.

6. Each party will bear his own costs in this Ct & in the Ct of appeal below. Future costs will be in the discretion of the trial Ct.


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