Onkar Nath v. Chhajju Ram — 1962 DIGILAW 158 (ALL)

JUDGMENT A. P. Srivastava, J. - This appeal has been referred to a Division Bench in order to resolve a conflict, which was noticed by Mr. Justice Bishambhar Dayal, between two single Judge decisions of this Court reported in Haji Abdul Shakoor v. The Commissioner, 1955 A.L.J. 32 and Syed Kasim Hussain v. Rent Control and Eviction Officer, 1960 A.L.J. 546 The appeal is by the defendant who was the landlord of the accommodation in question. He had let it out to the respondent Chhajju Ram before the U.P. (Temp.) Control of Rent and Eviction Act (here in after to be referred to as the Act) came into force. In December 1952 the appellant sought permission to eject Chhajju Ram and the permission was granted. He, however, did not file a suit for ejectment on the basis of the permission. What he did was that on the 3rd of February 1953 he made an application to the Rent Control and Eviction Officer alleging that Chhajju Ram had already vacated the accommodation in suit and the same be allotted to him. After getting a report from the Senior Inspector an order was passed in favour of the appellant on the 26th of February 1953 in which the Rent Control and Eviction Officer said "I permit him to occupy the premises for his own use." In his application the appellant had alleged that though the tenant Chhajju Ram had vacated the premises he had wrongfully put his nephew, Sri Narain, in the house. After the order of allotment had been passed he applied to the Rent Control and Eviction Officer that Sri Narain be ejected and he (the appellant) he put in possession of the accommodation. Action was taken under Sec. 7-A (2) of the Act and Chhajju Ram as well as Sri Narain were ejected. The appellant was put in possession of the house. 2. Chhajju Ram and Sri Narain then filed the suit, out of which this second appeal has arisen, claiming possession from the appellant on two grounds. The first was that the house had never been vacant in fact and the Rent Control and Eviction Officer had, therefore, no jurisdiction to permit the landlord to occupy it for his own use. 2. Chhajju Ram and Sri Narain then filed the suit, out of which this second appeal has arisen, claiming possession from the appellant on two grounds. The first was that the house had never been vacant in fact and the Rent Control and Eviction Officer had, therefore, no jurisdiction to permit the landlord to occupy it for his own use. The second was that in any case on the basis of that permission it was not open to the Rent Control and Eviction Officer to start proceedings under Sec. 7-A (2) of the Act against the plaintiffs and to have them ejected. The suit was contested by the appellant on the ground that Chhajju Ram, the tenant, had actually abandoned the accommodation and had left it. He had wrong-fully put his nephew Sri Narain in it who had no right to occupy the same. In fact, therefore, the accommodation was vacant and an order permitting the landlord to occupy it for his own use could be passed by the Rent Control and Eviction Officer. It was also contended that the plaintiffs had been rightly ejected under Sec. 7-A (2) of the Act. 3. The trial court decreed the suit in favour of the tenant Chajju Ram only. The claim of Sri Narain, the nephew, was rejected. Against that decree the appellant went in appeal to the learned Civil Judge, who dismissed the appeal. The Civil Judge recorded the findings that Chhajju Ram had never vacated the accommodation and had all along continued in it, his tenancy had never been terminated and no order releasing the accommodation in favour of the landlord could, therefore, be passed. He held further that Sec. 16 of the Act could not bar the suit. He also held that no valid order of allotment having been passed the plaintiff, Chhajju Ram, could not be ejected under Sec. 7-A(2) of the Act. 4. The defendant landlord came up in second appeal to this Court. When the appeal was taken up by Mr. Justice Bishambhar Dayal it was pointed out to him that on the question whether an order permitting the landlord to occupy the accommodation for his own use could be considered to be an order of allotment as contemplated by Sec. 7 of the Act, there was a conflict of opinion between two single Judge decisions of this Court. Justice Bishambhar Dayal it was pointed out to him that on the question whether an order permitting the landlord to occupy the accommodation for his own use could be considered to be an order of allotment as contemplated by Sec. 7 of the Act, there was a conflict of opinion between two single Judge decisions of this Court. He, therefore, referred the case to a Division Bench. That is how the case is now before us. 5. The plaintiff-respondent has been ejected from the accommodation under Sec. 7-A (2) of the Act. On the ground that his ejectment was illegal and wrongful he claimed back possession. He contended that his ejectment was illegal because according to him Sec. 7-A (2) of the Act did not apply to his case at all. Two grounds have been put forward in support of that contention. The first is that the order permitting the landlord to occupy the premises for his own use was a nullity as it has been passed without jurisdiction. The Rent control and Eviction Officer could have passed the order only if the accommodation was vacant or likely to be vacant. In the present case the plaintiff, who was the tenant, had not vacated and there was no possibility of his vacating it. The other contention is that even if it is assumed for the sake of argument that the order passed in favour of the landlord was one contemplated by Sec. 7(2) of the Act the possession of the plaintiff tenant could not be in contravention of the order because he had not entered into possession after the passing of the order, but had been in possession from before. To such a case, it is contended, Sec. 7-A (2) of the Act was not attracted at all and the plaintiff could not, therefore, be ejected with the help of that section. 6. To such a case, it is contended, Sec. 7-A (2) of the Act was not attracted at all and the plaintiff could not, therefore, be ejected with the help of that section. 6. On the question of fact as to whether the respondent, who was the former tenant of the accommodation, had actually vacated the accommodation before the order in favour of the appellant landlord was passed, the Munsif after considering the entire evidence recorded a categorical finding that :- "I am of opinion that plaintiff No. 1 never vacated the disputed accommodation, but on the other hand he was forcibly evicted on 31-3-55 on the basis of the order which was procured only against plaintiff No. 2 by misrepresenting fact by the defendant." The question was considered by the learned Civil Judge also and he found - "It is, therefore, clear that the plaintiff No. 1 and plaintiff No. 2 used to live together in these premises . . In these circumstances it cannot be held that the plaintiff No. l went away with the intention of leaving the premises once for all and giving them to Sri Narain . . . . If this is the position then it is wrong to say that the tenancy of the plaintiff No. 1 came to an end by abondonment. It is therefore crystal clear in this case that the tenancy of the plaintiff No. 1 did not come to an end and he was wrongfully ejected by the Rent Control Officer." 7. Both the courts, therefore, held concurrently that Chhajju Ram, the old tenant, never vacated the premises and all along continued to be the tenant. He had no intention of vacating the premises. The fact that for certain purposes he had allowed his nephew to live with him in the premises could not amount to his vacating the accommodation. Learned counsel for the appellant wanted to challenge the correctness of this finding and the ground he put forward was that the learned Civil Judge had not referred to the whole of the evidence. A finding of fact cannot, however, be allowed to be challenged in second appeal. In any case it cannot be challenged on the ground that some evidence on the record has not been referred to in the judgment by the lower appellate court. A finding of fact cannot, however, be allowed to be challenged in second appeal. In any case it cannot be challenged on the ground that some evidence on the record has not been referred to in the judgment by the lower appellate court. The presumption is that the finding has been recorded after considering the entire evidence and this presumption has not been rebutted in this case. 8. On the finding that Chhajju Rain, the old tenant, had never vacated the premises and had all along continued to be the tenant of it and there was no likelihood of his vacating it, it cannot be disputed that the Rent Control and Eviction Officer never got jurisdiction to allot the accommodation to any one or to permit the landlord to occupy it for his own use. The order on the basis of which the landlord has been put in possession of the accommodation was, therefore, without jurisdiction and a nullity. 9. Learned counsel for the appellant relying on a decision of the Supreme Court in Rai Brij Rai Krishna v. Mts. S.K. Shaw and Bros, A.I.R. 1951 S.C. 115 tried to urge that the Rent Control and Eviction Officer having found that Chhajju Ram had vacated the accommodation the question could not be re agitated in the civil court and it was not open to the civil court to record its own finding on the question. The decision relied upon was given with reference to Sec. 11 of the Bihar Buildings (lease, Rent and Eviction) Control Act, III of 1947. The provisions of that Act differ essentially from the provisions of the U.P. ' (Temp.) Control of Rent and Eviction Act. As was observed by the Supreme Court in para. 5 of the judgment Sec. II of the Bihar Act began with the words "notwithstanding anything contained in any agreement or law to the contrary" and contained a self-sufficient code in it for the eviction of tenants. In the circumstances it was on account of the stringency of those provisions that it was held in that case that it was not open to the civil court to go into the question whether rent was in fact in arrears on account of which the tenant could be directed to be ejected. In the circumstances it was on account of the stringency of those provisions that it was held in that case that it was not open to the civil court to go into the question whether rent was in fact in arrears on account of which the tenant could be directed to be ejected. There appears to be no parallel provisions in the Supreme Court which has been relied upon cannot be of any help to the appellant in the present case. Here the Rent Control and Eviction Officer had assumed jurisdiction by recording a wrong finding of fact that the accommodation had been vacated. It could be shown in the civil court that that finding of fact, which was a jurisdictional fact, was wrong and therefore the order passed by the Rent Control and Eviction Officer was without jurisdiction. 10. The respondent was in the circumstances justified in contending that the order passed in favour of the landlord that he was permitted to occupy the accommodation for his own use was passed without jurisdiction and on the basis of that order the Rent Control and Eviction Officer could not have ejected the respondent. 11. Another result of the finding of fact recorded by both the courts below that Chhajju Ram had never vacated the premises and had continued in possession all along is that in this case the person, who was ejected under Sec. 7-A (2), had not entered into possession after the order was passed under Sec. 7(2), but had been in possession from before. That being so Sec. 7-A (2) did not apply at all and the respondent could not be evicted under that section. This is clear from the observations made by a Division Bench of this court in Ram Lal v. Shiv Mani Singh, 1962 A.L.J. 260. In that case because in spite of intimation about the vacancy no allotment order had been passed within a month the landlord had let out the accommodation and put his tenant in possession. Then an allotment order was passed and thereafter alleging that the letting out by the landlord was in contravention of the allotment order proceedings were taken under Sec. 7-A (2) for the eviction of the person put in possession by his landlord. Then an allotment order was passed and thereafter alleging that the letting out by the landlord was in contravention of the allotment order proceedings were taken under Sec. 7-A (2) for the eviction of the person put in possession by his landlord. Holding that Sec. 7-A (2) could not apply in the circumstances it was observed :- "The petitioner obtained possession over this accommodation on 25th August, 1958. The order requiring the accommodation being let out to the opposite parties No. 1 and 2 was passed on 12th December, 1958. On the date, therefore, Sri Ram Lal obtained possessions over the premises, there was no order of the District Magistrate which may have been contravened by him. Even the words "said order" and "has occupied" indicate that the person who is said to have been in unauthorised occupation must have, in order that action may be taken against him under Sec. 7-A (1), entered into occupation of the premises after the passing of an order under sub-Sec. (2) of Sec.7." In that case, as in the case before us, reliance was placed on the decision in Chhotey Lal v. District Magistrate, A.I.R. 1952 Allahabad 913 = 1952 A.L.J.. That case was however held to be distinguishable. We respectfully agree with this view. 12. The first contention of the plaintiff that he had been wrongly ejected under Sec. 7-A (2) of the Act because that section did not apply to him was, therefore, well founded and this suit was liable to succeed on that ground. 13. On the other question, whether an order permitting the landlord to occupy the accommodation for his own use, which is in common parlance called an order of release in favour of the landlord, is an order contemplated by Sec. 7(2) of the U.P. (Temp.) Control of Rent and Eviction Act there does appear to be a conflict between the decisions in Haji Abdul Shakoor v. The Commissioner, 1955 A.L.J. 32, and Syed Kasim Husain v. Rent Control and Eviction Officer, 1960 A.L.J. 546. In the former case the view taken was that such an order could not be considered to be an order passed under Sec. 7(2), while in the latter case a contrary view was taken. In the former case the view taken was that such an order could not be considered to be an order passed under Sec. 7(2), while in the latter case a contrary view was taken. We have, however, been relieved of the necessity of reconciling these conflicting views because our attention has been drawn to a Division Bench decision in the case of Prem Shankar v. U.P. Provincial Co-operative Bank, 1952 A.L.J. 520. In that case the Division Bench was interpreting the words require a landlord to let or not to let to any person any accommodation used in Sub-Sec. (2) of Sec. 7 of the Act and held that the power of permitting the landlord to occupy the accommodation for his own use was implied in the words "require a land lord not to let." Reliance in support of the view, that was being taken, was placed inter alia on some observations made in a Full Bench decision of this Court in Raman Das v. State of Uttar Pradesh, 1952 A.L.J. 208 and on R. 6 of the Rules framed under Sec. 17 of the Act. The decision of Mr. Justice V. Bhargava in Syed Kasim Husain's case, 1960 A.L.J. 546 is in consonance with the Division Bench view. Apparently the attention of the learned Judge, who decided Haji Abdul Shakoor's case, 1955 A.L.J. 32, was not drawn to this Division Bench decision. The view taken being in conflict with the Division Bench decision cannot be upheld as correct. 14. Learned counsel for the respondents tried to argue that the permission granted to the landlord to occupy the accommodation for his own use should not be considered to fall either under expression "to let" or under the expression "not to let." used in Sec. 7(2) of the Act. It is pointed out that under Sec. 7 it is open to the District Magistrate not to pass any orders at all and if he permits to allow the landlord to occupy the accommodation for his own use it must he held that he has exercised his discretion by not passing any order under Sec. 7 at all. According to the learned counsel the Rent Control Officer can follow one of the courses under Sec. 7(2). 1. He may not pass any order at all. 2. He may direct the landlord to let. 3. He may direct the landlord not to let. According to the learned counsel the Rent Control Officer can follow one of the courses under Sec. 7(2). 1. He may not pass any order at all. 2. He may direct the landlord to let. 3. He may direct the landlord not to let. An order permitting the landlord to occupy for his own use is an order passed while following to first course and not while following the other. Even in that case it appears to us that the order must he held to be an order under Sec. 7(2) and not out side the provision of this section. In any case it implies that the landlord is not to let but the accommodation to any one else. We are, therefore, in respectful agreement with the decision in Raman Das, 1952 A.L.J. 208 that an order of release is an order passed under Sec. 7 of the Act. The second ground taken by the appellant is, therefore, not tenable. 15. In view, however, of our decision in respect of the first ground the decrees of the courts below must be upheld. This appeal fails and is dismissed with costs.