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1952 DIGILAW 142 (KER)

Kutty Muhamed v. Saithu Moideen Sahib

1952-12-15

K.A.GANGADHARA MENON

body1952
JUDGMENT : This appeal raises an important question bearing on the Cochin Buildings (Lease and Rent Control) Proclamation, IV of 1122 and XXI of 1122. On 25-9-1122 the Rent Controller passed an order under Section 7 (2) (i) of Proclamation IV of 1122 for eviction of the tenant from a shop room in the Trichurtown. The landlord put the order in execution and obtained actual possession of the shop room on 25-9-1122. Against the order of the Rent Controller the tenant preferred an appeal to the appellate authority. While the appeal was pending the Cochin Buildings (Lease and Rent Control) (Amendment) Proclamation XXI of 1122 came into force. On the merits of the appeal the appellate authority found that the order appealed against was correct but in view of the Cochin Buildings (Lease and Rent Control) (Amendment) Proclamation XXI of1122 he permitted the tenant to deposit the arrears of rent in accordance with proviso3 added under section 2 of that Proclamation and passed an order setting aside the Rent Controller’s order and condoning the forfeiture inspite of the objection taken by the landlord that the appellate authority had no jurisdiction to pass such an order in view of the fact that the tenant had already been evicted before the amendment Proclamation came into force. In pursuance of the order of the appellate authority the tenant filed an application before the Munsiff for restitution on the basis of the order of the appellate authority. The learned Munsiff on a construction of the relevant provisions of Proclamation XXI of 1122 held that the order of the appellate authority was ultra vires and of no legal effect. Therefore, he dismissed the application for restitution. In appeal the learned District Judge confirmed the order of the learned Munsiff. The tenant has therefore come in second appeal. 2. A preliminary objection was taken by the learned Advocate for the respondent that the order passed by the learned Munsiff is not appealable. The same objection was taken in the lower appellate court and though the learned Judge has considered the case on the merits has also recorded the view that the order is not appealable since it would be deemed to have been passed by the learned Munsiff under his inherent powers. I do not however think that the preliminary objection is sustainable. I do not however think that the preliminary objection is sustainable. Section 9 of the Proclamation IV of 1122 provides that:- “Every order made under Section7 or Section 8 and every order passed on appeal under Section 12 shall be executed by the District Munsiff having jurisdiction as if it were a decree passed by him.” Section 144 C. P. p. (Section 115 of the Cochin C. P. C.) enjoins that:- “where and in so far as a decree is varied or reversed the court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed...........................”. It appears to me that in the light of the provision in Section 9 of Proclamation IV of 1122 the court of first instance as contemplated in Section 144 of the Civil Procedure Code has to be deemed to be the Munsiffs Court which is authorised to execute the orders of the Rent Controller or of the appellate authority as if they were decrees passed by the Munsiff. Decree is defined in Section 2 (2) of the Civil Procedure Code so as to include any question within Section 144 of the Code. Thus an order by the Munsiff dismissing the application of the tenant for restitution amounts to a decree as defined in the Code and is therefore appealable. In this view the preliminary objection taken by the respondent cannot stand. 3. The question for consideration in the appeal is whether the order of the appellate authority condoning forfeiture was passed without jurisdiction. By Section 2 of the Proclamation XXI of 1122 certain provisos are added at the end of Sub-section 2 of Section 7 of the Cochin Buildings (Lease and Rent Control) Proclamation IV of 1122. 3. The question for consideration in the appeal is whether the order of the appellate authority condoning forfeiture was passed without jurisdiction. By Section 2 of the Proclamation XXI of 1122 certain provisos are added at the end of Sub-section 2 of Section 7 of the Cochin Buildings (Lease and Rent Control) Proclamation IV of 1122. The proviso material to the question under consideration is the last one which is as follows:- “Provided farther that where an order has already been made directing the tenant to put the landlord in possession of the building on the ground specified in clause [1] of this sub-section but the tenant has not been actually evicted, the Rent Controller, the Appellate Authority when there has been an appeal, or the Court which is executing the order shall, if the tenant deposits within 60 days of the publication of this Proclamation, with the Rent Controller, the Appellate Authority or the Court, as the case may be, the rent in arrears with interest at 6 per cent per annum and the full costs of the landlord for payment to him, in lieu of evicting the tenant, pass an order allowing the tenant to continue in occupation of the building on the terms and conditions on which he held the building.” The meaning of the language employed in the proviso is clear and unambiguous. It gives the benefit of a deposit contemplated in the proviso only to a tenant who has not been actually evicted. The tenant who has actually been evicted is clearly outside the scope of the proviso. It has also to be noted that the appellate tribunal applied the proviso and allowed the tenant the benefit of the condonation enjoined thereunder not for the reason that there Was no default in the payment of rent within the meaning of Section 7 (2) (i) of the Proclamation IV of 1122 as was found by the Rent Controller, but in spite of such default and the consequent eviction of the tenant in pursuance of the order therefor by the Rent Controller. In such a case the appellate authority has jurisdiction to pass an order allowing the tenant to continue in occupation of the building on deposit of the arrears to rent and other amounts contemplated in the proviso, only if the tenant has not been actually evicted. In such a case the appellate authority has jurisdiction to pass an order allowing the tenant to continue in occupation of the building on deposit of the arrears to rent and other amounts contemplated in the proviso, only if the tenant has not been actually evicted. The appellate authority is empowered to act under the proviso only if certain facts existed, namely, that the tenant has not been actually evicted. The jurisdiction of the appellate authority in respect of the condonation contemplated in the proviso, is dependent on the existence of the fact that the tenant has not actually been evicted. The pre-existence of that fact is essential for the appellate authority to get jurisdiction to act. If the facts are otherwise and the tenant had already been evicted then the appellate authority has no jurisdiction at all to apply the proviso, and any order passed by it would be ultra vires and of no consequence whatsoever. “It is well settled that the powers of a tribunal of special jurisdiction are circumscribed by the statute under which it was constituted. Such tribunal must act within its powers, and so long as it does so, its orders, whether right or wrong, cannot be challenged except in the manner and to the extent prescribed in the statute, and Courts of ordinary jurisdiction cannot question them. But where, and in so far as, its actions are in excess, or in contravention of the powers conferred on it, they are ultra vires and of no legal effect and obviously cannot have the same immunity.” (Vide A. I. R. 1940 Lahore 401 at page 407). The law on the subject has been very lucidly stated thus by Esher M. R. in Queen v. Commissioner for the special purposes of the Income Tax (1888) 21 Q. B. D. 313 at 319 (57 L. J. Q. B. 513) which, has been quoted with approval by Fazl Ali (J) in A: I. R. (38) 1951 Supreme Court 115 at 117: “When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exist and if they exercise the jurisdiction without its existence what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of thing which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they given them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.” The case in A.I.R. 1951 Supreme Court 115 was one falling within the second category mentioned by Lord Esher. It appears to me that the present case falls within the first category. In this case since the appeal before the appellate tribunal was by an evicted tenant it had no powers to act under proviso 3 of section 7. (2) enacted under Section 2 of Proclamation XXI of 1122. The appellate authority had power to give effect to the provisions of the proviso only in an appeal by a tenant who has not been actually evicted. Therefore, there can be no doubt that the appellate authority acted without jurisdiction in applying the proviso in appeal by a tenant who has already been evicted by the order of the Rent Controller and which order had been found correct by the appellate authority. 4. Therefore, there can be no doubt that the appellate authority acted without jurisdiction in applying the proviso in appeal by a tenant who has already been evicted by the order of the Rent Controller and which order had been found correct by the appellate authority. 4. The decision reported in 38 Cochin Law Reports 506 relied, on by the appellate authority and canvassed before me by the learned Advocate for the appellant does not appear to me to be applicable at all. That was a decision on the true construction of Section 1 of Proclamation XI of 1122. The expression used in Act XI of 1122 that came for consideration in 38 C.L.R. appear in an altogether different context in a different statute, that relates to suits and proceedings in ordinary Civil Courts. I do not think that the decision can be of any help in the decision of the question in hand. 5. I am therefore in entire agreement with the conclusions of the courts below. The appeal is without merit and is dismissed with costs. Dismissed.