Sri Laxmi Kant Modwell v. Chandra Kala Devi — 1957 DIGILAW 333 (ALL)

JUDGMENT Gopalji Mehrotra, J. - This is an application under Article 226 of the Constitution on behalf of the tenant of bungalow No. 23, Muir Road, Allahabad for the following reliefs: (a) a writ of certiorari directing opposite party No. 2 to submit the record of suit No. 72 of 1953 to this Court and for quashing the decree passed by the Civil Judge on 30-4-1957. (b) a writ of certiorari to opposite party No. 3 directing him to bring up his order dated 28-5-1957 and the entire proceedings in Misc. case No. 124 of 1957 Smt. Chandra Kala Devi v. Lakskmi Kant Modwell for being quashed; and (c) a writ of prohibition to opposite party No. 3, Munsif, West, Allahabad restraining him from proceeding with the Misc. Case No. 424 of 1957. 2. The facts briefly are: Opposite Party No. 1 is the owner of bungalow No. 23, Muir Road, Allahabad. The Petitioner took this bungalow on rent and occupied if from 1-1-1952. It is not necessary for me to give the actual amount of rent which was agreed between the parties because there was some dispute as regards the rent. A trouble arose as regards the actual amount of rent which was agreed and an application was filed by opposite party No. 1, the landlady, u/s 7(B) for recovery of arrears of rent on the ground that the rent was agreed at Rs. 100/ - per month. That petition was rejected. Thereafter in the year 1953 a suit was brought u/s 5 of the Rent Control and Eviction Act for fixation of rent. The suit was numbered as suit No. 72 of 1956. It was finally disposed of by the Civil Judge by his order dated 30-4-1957 in which he came to the conclusion that the annual rent of the accommodation in possession of the Petitioner should be fixed at Rs. 745/ -. The Petitioner had been claiming that the reasonable rent would be Rs. 400/ - per annum. During the pendency of suit No. 72 of 1953 the opposite party, landlady, filed an application u/s 7(B) of the Rent Control and Eviction Act for the recovery of arrears of rent from 1-1-1952 upto the date of the application at the rate of Rs. 400/- annually. In the application it was stated that the tenant had agreed that the reasonable rent would be Rs. 400/- annually. In the application it was stated that the tenant had agreed that the reasonable rent would be Rs. 400/-annually and on that basis the application was made although that was not the final claim of the landlady inasmuch as a suit for fixation of rent was pending and it had not been decided till then. After the decision of the Suit u/s 5 on 30-4-1957 another application was made in May 1957 for the recovery of the arrears that was calculated on the basis of the rent which was fixed by the learned Civil Judge, i.e., at Rs. 745/-annually. Out of the amount due on that basis Rs. 1600/- which has been claimed under the earlier petition were deducted and by means of this application it was claimed that the tenant was in arrears of rent to the extent of rupees two thousand and odd. Notice was issued to the tenant and it was served on the Petitioner on 12-5-1957. There after he made an application to the Munsif for a direction that he should be permitted to file the personal bond of Sri Rama Kant as security. On that application the Munsif passed an order that Sri Ramakant should appear on 27-5-1957 and might furnish the personal bond. Sri Ramakant is Petitioner's father. On 27-5-1957, however, an application was filed by the opposite party land lady pointing out to the Munsif that the Petitioner had attempted to file the personal bond of his father in the earlier proceedings but that was rejected by the Munsif. Consequently the Munsif should not have permitted the Petitioner to file the personal bond of his father as the security for the amount of the arrears of rent. There were certain objections which were taken by the Petitioner to that application but on 28-5-1957 the Munsif gave time to the Petitioner upto 11-7-1957 to deposit the amount in suit in cash or furnish the security of a person who was the resident of Allahabad. The present petition then Was filed in this Court on 8-7-1957 for the reliefs which I have already mentioned above. 3. As regards the first relief claimed by the Petitioner it was strongly contended by the counsel for the Petitioner that the order was without jurisdiction and it should be quashed by this Court. Two main grounds were urged by the counsel in support of this contention. 3. As regards the first relief claimed by the Petitioner it was strongly contended by the counsel for the Petitioner that the order was without jurisdiction and it should be quashed by this Court. Two main grounds were urged by the counsel in support of this contention. Firstly, it was urged by him that certain relevant considerations which were required to be taken into account by the court in fixing the rent u/s 6 of the UP Rent Control and Eviction Act were not considered by the learned Civil Judge and secondly it was urged that certain considerations which were extraneous to the provisions of Section 6 were taken into consideration by the Civil Judge in fixing the rent. The first answer to this relief claimed by the Petitioner is that he has already sought an alternative remedy by filing a revision in this Court challenging the validity of that order and in these circumstances it is not open to the Petitioner to come to this Court in the writ petition and therefore he is not entitled to any relief under Article 226 of the Constitution. The order of the learned Civil Judge dated 30-4-1957 therefore stands. 4. Another objection has been taken by the opposite party to. the grant of this relief on the ground that it was not open to the Petitioner to have joined in one petition two reliefs-one challenging the order of the 30-4-1957 and the other challenging the order of the Munsif passed in the proceedings u/s 7(B) on 28-5-1957. As I have already indicated I am not inclined to give relief to the Petitioner quashing the order of 30-4-1957 on the ground that he has already filed a revision in this Court against that order, it is therefore not necessary for me to decide whether he could have joined these two reliefs in this petition or not. It is also not necessary for me to give decision on the points raised by the Petitioner on the merits of the order dated 30-4-1957. 5. It was then contended by the learned Counsel for the Petitioner that the order passed by the Munsif on 28-5-1957 is illegal. It is also not necessary for me to give decision on the points raised by the Petitioner on the merits of the order dated 30-4-1957. 5. It was then contended by the learned Counsel for the Petitioner that the order passed by the Munsif on 28-5-1957 is illegal. The contention in brief raised by the Petitioner is that when on the application made by the Petitioner for a direction that he should be permitted to file a personal bond of his father the Munsif directed that his father should appear on 27-5-1957 and furnish the personal bond that order amounted to an expression of his satisfaction as required under the proviso of Sub-section (7) of Section 7B and after once expressing his satisfaction there was no power left in the Munsif to set aside his earlier order and order afresh the Petitioner to file a different kind of security, namely either the amount or the security of some person who resided within the jurisdiction of Munsif, Allahabad. There, appears to be some force in this contention raised by the Petitioner. Sub-section (7) of Section 7B of the Rent Control and Eviction Act provides as follows: If the tenant appears in reply to the notice under Sub-section (3) and files an objection, other than an objection as to costs of these proceedings, the Munsif shall inform the applicant that he may, subject to the payment of court fee within such time as may be specified, have the application treated as a plaint in a suit for recovery of rent alone: Provided that the tenant shall not be permitted to file any objection, unless he has deposited in court the amount mentioned in the notice or furnishes to the satisfaction of the Court. 6. Before the Munsif can ask the applicant to deposit the court fee and to convert his application into a suit it is necessary u/s 7B, Sub-section (7) that after notice the tenant must have filed an objection. The proviso then says that no objection filed by the Petitioner can be entertained unless he has deposited the amount mentioned in the notice in court or furnished security to the satisfaction of the court. This is a condition precedent to the tenant's filing an objection in these proceedings. The tenant had prayed to file his objection and to furnish the security. This is a condition precedent to the tenant's filing an objection in these proceedings. The tenant had prayed to file his objection and to furnish the security. Whether that security was sufficient or not had to be determined by the court and the question to be seen is whether in the present case the court had exercised its discretion and was satisfied with the security which the tenant proposed to file or not. It was strongly contended by Shri Krishna Shanker, appearing for the opposite party that from the circumstances of the present case it cannot be said that the court at any stage applied its mind to the validity of the security furnished by the Petitioner. An application before the expiry of 15 days from the receipt of the notice was made by the tenant for a direction that he should be permitted to file a personal bond of his father and on that application the Munsif passed an order that Rama Kant should appear on 27-5-1957 and furnish the personal bond. Thereafter the landlady made an application raising certain objections to the Petitioner being permitted to file the personal bond of his father. Those objections were determined on 28-5-1957 after the expiry of 15 days from the receipt of the notice by the tenant. The discretion was exercised by the Munsif and he accepted the personal security of his father as sufficient. The Munsif had passed the order on the earlier application. What he did by the subsequent order was that he. cancelled his earlier order by which he had expressed his satisfaction to the personal bond of his father and had directed Shri Ramakant to file a personal bond but by his subsequent order he indicated that he would be satisfied by a different security of some other person who resided within the jurisdiction of Allahabad. It was not really a case where the tenant had filed a security bond taking the risk and where it was open to the Munsif to consider the validity of that bond after the expiry of 15 days and after having considered the validity of that bond to have rejected it or accepted it after giving reasons for doing so. It was not really a case where the tenant had filed a security bond taking the risk and where it was open to the Munsif to consider the validity of that bond after the expiry of 15 days and after having considered the validity of that bond to have rejected it or accepted it after giving reasons for doing so. But in the present case what the Munsif has done is that he has changed the nature of the security which according to his previous order satisfied him and he has changed his decision and directed the tenant to furnish the different type of security. In my opinion this decision really effected the right of the Petitioner and unless there is specific provision giving him power to review his earlier order it is not open to the Munsif to review the order. 7. It is next contended by the counsel for the opposite party that there is inherent power in every judicial authority to review its previous order if it finds subsequently that there was misrepresentation or suppression of certain facts. He has strenuously contended that the previous order was passed by the Munsif without the knowledge of the fact that in his earlier order he had rejected the personal bond of his father. There are two answers to this argument advanced by the opposite party. Firstly, it does not appear from the order of the Munsif that he had set aside his earlier order directing Rama Kant to file his personal bond on the ground that this fact was not brought to his notice. He has given no reason as to why he set aside his earlier order. In his subsequent order he has only permitted the applicant to furnish another security if he so desired or to deposit the amount by 11-7-1957. A perusal of this order will show that the Munsif when he passed the order never realised that he was in fact reviewing his earlier order as he has thought having finally accepted the personal bond to be filed by the tenant of his farther, it was open to him even after the expiry of 15 days to direct the tenant to file a security which may satisfy him. He never considered the question from the point of view that in effect he was reviewing his earlier order by which he had expressed his satisfaction by directing the tenant to file the personal bond of his father as security bond. The second answer to the argument would be that the mere fact that certain facts were not brought to the knowledge of the Munsif, itself gave no right to the Munsif, in the absence of any express provisions to that effect, to review his order because that order was obtained by fraud or misrepresentation. In this view of the matter, in my opinion, the order passed by the Munsif on 28-5-1957 by which he has directed the Petitioner to file a security of some other person who resided within Allahabad amounted to reviewing of the earlier order by which the Munsif had permitted Shri Rama Kant to file his personal bond on 27-5-1957 and in pursuance of that order a personal bond was filed on 27-5-1957, is illegal and must be quashed. Therefore I hold that the personal bond filed on 27-5-1957 was in compliance with the order of the Munsif and the provisions to Section 7(B)(7) have been complied with. It is, however, open to the other side to raise any objection as regards the validity of the bond and the Munsif will consider those objections. If he comes to the conclusion that there is any defect in the form of the bond it is open to him to give time to the Petitioner to rectify those defects. 8. In view of my decision on this point, it is not necessary for me to consider a number of other points raised by the Petitioner. It was contended by Mr. Dwivedi that the Petitioner cannot be treated to be in arrears of rent inasmuch as the order passed on 30-4-1957 was an illegal order and secondly it was contended by him that for the same period the opposite party landlady having filed an application u/s 7(B) the present application was barred by principles of Order II Rule 2, Code of Civil Procedure. These questions to my mind do not arise at this stage at all. If the Petitioner is permitted to file his objection it is open to the Munsif to consider any such objection if raised by the Petitioner. These questions to my mind do not arise at this stage at all. If the Petitioner is permitted to file his objection it is open to the Munsif to consider any such objection if raised by the Petitioner. In the case of Ram Lal v. Hindustan Commercial Bank Ltd., Lucknow 1952 AWR (H.C.) 136 at p. 137-138 it was observed: The next argument advanced by the learned Counsel for the applicant is that before the application is maintainable, there should be arrears of rent and as there were no arrears of rent in the present case, the application of the landlord should have been dismissed. According to this argument again, the Court would have to embark on an enquiry, as to whether there are any arrears of rent and the amount claimed does constitute rent within the legal definition of the term. This is again a matter which would require the determination of an objection by the tenant and this cannot be done unless the amount claimed by the landlord is deposited in Court. 9. From a reading of this case it will be clear that the objections which can be regarded as objections of preliminary nature about the maintainability of the petition can also be raised before the Munsif and can be determined by him. It was argued by Mr. Dwivedi that it may be that the Munsif may not go into the validity of the order passed by the learned Civil Judge. It is not the question of considering the validity of the order of the Civil Judge on merits. The point which is raised by the Petitioner is that the order was a nullity and as such the Petitioner was not in arrears of rent so as to justify the proceedings u/s 7B. Such an objection can always be considered by the Munsif in dealing with the matter u/s 7B. It was also contended by the counsel for the opposite party that even assuming that the order of the Munsif was without jurisdiction in the circumstances of the case no prejudice has been caused to the Petitioner and this Court will not exercise its powers under Article 226 of the Constitution. Reliance in this connection was placed on the following observations in the case of Pooran Singh and Ors. v. The Addl. Commr., Agra 1937 AWR (J) 45 : ALJ 193. Reliance in this connection was placed on the following observations in the case of Pooran Singh and Ors. v. The Addl. Commr., Agra 1937 AWR (J) 45 : ALJ 193. The words which we have italicised show clearly that the mere fact that an order is without jurisdiction or that there is an error apparent on the face of the record is not sufficient to justify the issue of a writ. In addition to that it must be established that the order has resulted in manifest injustice. It is therefore, open to the High Court to refuse to issue a writ if it feels, as was felt by the learned Single Judge in the present case, that if the writ prayed for is issued "it will clearly effectuate an injustice in the case. 10. If the effect of my order setting aside the order of the Munsif dated 28-5-1957 has been to effectuate an injustice I would have refused to grant any relief to the Petitioner but the view which I have taken that the order passed by the Munsif at an earlier: stage which permitted the Petitioner to file the personal bond of his father was in accordance with the provisions of Sub-section (7) of Section 7B it cannot be said that my order setting aside the latter order dated 28-5-1957 would effectuate any illegal order. Apart from it the Petitioner has now been asked to file a security bond of some other person who resides within Allahabad. It may be that if the owner claims a very high amount the tenant may find it difficult to deposit the amount within the period specified in the notice or to furnish such a security. The Munsif having once exercised his discretion if that earlier order is allowed to be set aside it may substantially prejudice the right of the Petitioner. It cannot, therefore, be said that the Petitioner is not entitled to a relief under Article 226 of the Constitution. 11. As in my view the order of 28-5-1957 has to be set aside and the case will go back to the Munsif for determination of the objections on merits, it is not necessary for me to go into other objections raised by the opposite party. 12. 11. As in my view the order of 28-5-1957 has to be set aside and the case will go back to the Munsif for determination of the objections on merits, it is not necessary for me to go into other objections raised by the opposite party. 12. Lastly, it was contended by the Petitioner that he is entitled to the relief of prohibition directing the Munsif not to proceed with the application u/s 7B. The contention raised by the Petitioner was that as the order of 30-4-1957 was illegal and the Petitioner was not in arrears of rent, the Munsif had no jurisdiction to entertain the application u/s 7B and thus there was want of jurisdiction in the Munsif and this Court can issue a writ of prohibition. I have already expressed my view that the order of 30-4-1957 was not illegal and the question whether the Petitioner was in arrears of rent can-be raised by the Petitioner before the Munsif. The question of jurisdiction is an issue before the Munsif himself. In these circumstances it cannot be said that prima facie there is want of jurisdiction in the Munsif and this Court can issue a writ of prohibition. 13. In the result I allow the petition in so far that I quash the order of the Munsif dated 28-5-1957 and send back the case to the Munsif for determination of objections on merits according to law. But the Petitioner is not entitled to any relief quashing the order of 30-4-1957 or writ of prohibition directing the Munsif not to proceed with the proceedings suit No. 124 of 1957. As the Petitioner has not got all the reliefs claimed the parties are directed to bear their own costs.