Sadashiv Balkrishna v. Jagdish Chandra — 1963 DIGILAW 136 (MP)

JUDGMENT 1. This appeal is by the defendant-tenant against the decree, dated 13-7-1961, passed by Shri S.V.H. Pagare, District Judge, Ujjain, in Civil Regular Appeal No, 26 of 1961, affirming the decree, dated 18-4-1961, passed by Shri R.L. Sangani, Second Civil Judge Class II, Ujjain in Civil Suit No. 288 of 1960. 2. The main question involved in the present appeal is as to an amendment sought by the defendant being refused by the first appellate Judge as to the property being evacuee property, which would attract the provisions of the Displaced Persons (Compensation and Rehabilitation) Act (XLIV of 1954) (hereinafter called the Act). The appellant has no other defence on merits, except based on the amendment which, according to the learned counsel, goes to the root of the case. 3. The respondent filed a suit for eviction of the appellant on the ground of default in paying arrears of rent, despite a notice of demand and ejectment, dated, 26-7-1960 (Ex. P-1). According to the landlord, the rent for the months of March, April, May and June, 1960 at the rate of Rs. 12 per month was due. The suit was filed on 6-9-1960, wherein he claimed rent for six months, as also further amount towards damages for use and occupation till delivery of possession at the same rate. 4. The appellant in his defence alleged that he had paid four months rent amounting to Rs. 48 to the landlord's wife. It was the landlord who was avoiding to accept rent, although the same would be sent by money orders. The tenant claimed that he bad paid the arrears of rent on 1-8-1960 in pursuance of the notice of demand. As regards the rent for July, August and September, 1960, he had sent the same by money order, which was refused by the landlord. 5. The learned Judge of the trial Court held that the tenant had failed to prove that he paid Rs. 48 to the plaintiff's wife. It was found that the tenant had sent the rent for July, August and September, 1960 by money order, which the landlord refused to accept. The plaintiff's claim for eviction and arrears of rent amounting to Rs. 74 and 40 nP. as also future damages for use and occupation as the rate of Rs. 12 per month was decreed by the trial Court. 6. The plaintiff's claim for eviction and arrears of rent amounting to Rs. 74 and 40 nP. as also future damages for use and occupation as the rate of Rs. 12 per month was decreed by the trial Court. 6. In the first appellate Court, the tenant filed an application for an amendment of the written statement on 26-6-1961. By the proposed amendment, the defendant sought to plead that he had taken the suit house on rent in September, 1951 from Shri Jail, who was a mortgagee of evacuee property. He started paying rent to the present plaintiff in January, 1960. The plaintiff had got provisional possession from the Custodian of Evacuee Property. His only right was to recover rent and he had no right to effect a transfer or evict a tenant. The defendant was not aware of these facts. As such, it was the tenant's contention that unless the plaintiff obtained a sale certificate from the Custodian of Evacuee Property, he was not entitled to maintain a suit for eviction and his remedy would be to approach the authority mentioned in the Act. Hence the suit for eviction in a civil Court was not tenable. This amendment was rejected by the learned appellate Judge. The arguments on the amendment application were heard along with the arguments on merits. 7. The appellant has no case for resisting the decree for eviction except on the basis of the amendment sought by him in the first appellate Court. From the documents on record with reference to the provisions of the Displaced Persons (Compensation and Re-habilitation) Act, 1954, there can be no doubt that the amendment goes to the root of the case so as to affect the jurisdiction of the civil Court to entertain a suit. Therefore, in my opinion, the amendment ought not to have been rejected by the learned appellate Judge merely on the ground that the tenant would be estopped from challenging the landlord's title by virtue of section 116 of the Indian Evidence Act. It was on that basis alone that the learned District Judge disallowed the amendment by relying on the Division Bench case of Manna Lal Vs. Balchand 1961 JLJ 230 = 1961 MPLJ 221 = 1961 MPC 166. 8. The question of estoppel under section 116 of the Indian Evidence Act does not exactly arise in the manner contemplated in the said Division Bench case. Balchand 1961 JLJ 230 = 1961 MPLJ 221 = 1961 MPC 166. 8. The question of estoppel under section 116 of the Indian Evidence Act does not exactly arise in the manner contemplated in the said Division Bench case. Here the question sought to be raised affects the very jurisdiction of the civil Court, became unless a sale certificate is issued in favour of a purchaser of evacuee property in accordance with section 20 of the Act as laid down by their Lordships of the Supreme Court in M/s Bombay Salt and Chemical Industries Vs. L.J. Johnson and others AIR 1958 SC 289 , there is no transfer of title in favour of the purchaser, and the civil Court at any rate has no jurisdiction to deal with a suit of this kind, And it would be the managing officer alone who would be competent to take the necessary action in this behalf who has the power to vary or cancel leases or allot any property acquired under the Act by virtue of section 19 of the Act. In this connection, I may refer to the observations of a Single Bench of the Punjab High Court in Ranga Singh Vs. Gurbuxsingh and another AIR 1961 Punjab 166 Laying down that the civil Court would have jurisdiction only if the authorities under the Act are found to be acting in violation of the principles of natural justice. Of course, how far the civil Court would be able to interfere in case of violation of the principles of natural justice may have to be decided on the facts of a particular case. I refrain from expressing an opinion on that aspect. At this stage, I may refer to another Division Bench case of the Punjab High Court, namely, Charanjit Lal Jagannath Arora and another Vs. Smt. Inder Devi and another AIR 1962 Punjab 466 where the learned Judges had to consider whether a declaratory suit filed by the plaintiff in the civil Court was barred in view of sections 9, 2 (e) and 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. As the learned Judges held that the suit was not of the type mentioned in the said sections, it was tenable in a civil Court. Moreover there can be no estoppel against a statute. 9. As the learned Judges held that the suit was not of the type mentioned in the said sections, it was tenable in a civil Court. Moreover there can be no estoppel against a statute. 9. However, the learned counsel for the respondent urged that the mortgagee interest of Shri Jail did not vest in the Custodian of Evacuee Property and, therefore the landlord would get good title so far as that interest was concerned. It is suggested that the mortgagor's interest alone could be considered to be evacuee property; and as such the same vested in the Custodian exclusive of the mortgagee interest. I may only mention that section 12 (1) of the Act envisages the vesting of the property in the Custodian free from all encumbrances. Therefore, the entire property would vest in the Custodian irrespective of any encumbrances which in law would not exist. It would be the jurisdiction of the Managing Officer to satisfy the encumbrances in a manner be thinks fit. But it would be the Custodian or the Managing Officer alone who would be competent to deal with the matter. I may only refer to the observations of a Division Bench of the Bombay High Court in Shree Ambarnath Mills Corporation Bombay Vs. D.B. Godbole, Custodian of Evacuee and another AIR 1957 Bom 119 . The learned Judges specifically held that the civil Court would have no jurisdiction and a person holding an encumbrance would be required to approach the authority under the Act for getting satisfaction of the encumbrances. 10 The learned counsel for the respondent further urged that by allowing the amendment sought by the tenant, he would be permitted to withdraw an admission made in his written statement, whereby he had acknowledged the plaintiff as his landlord. Had this been the only aspect, I might have been inclined to refuse the amendment. But I may only refer to the observations made by Sinha, C.J. (as he then was) in Mehbubkhan Himmatkhan Vs. Mohammadkhan Lalkhan and others AIR 1954 Nag 54, wherein the learned Chief Justice observed that an amendment ought not to be refused on the sole ground that it will introduce a new case. I may also refer to the observations of Choudhuri, J. in Amolachand Mohanlal Vs. Mohammadkhan Lalkhan and others AIR 1954 Nag 54, wherein the learned Chief Justice observed that an amendment ought not to be refused on the sole ground that it will introduce a new case. I may also refer to the observations of Choudhuri, J. in Amolachand Mohanlal Vs. Firm of Sadhuram Tularam and others AIR 1954 Nagpur 200, wherein the learned Judge observed that even in a case where the effect of amendment would be to allow the defendant to withdraw a previous admission erroneously made, the amendment under special circumstances could be allowed in the interest of justice although the amendment may change the nature of the defence from admission to denial of the plaintiffs right to redeem. Of course, such an amendment may be allowed in exceptional circumstances; and that would not be the rule. 11. In view of the pronouncement of their Lordships of the Supreme Court in L.J. Leach and Co. Ltd. and another Vs. Messrs. Jardne Skinner and Co. AIR 1957 SC 357 and Pirgonda Hongonda Patil Vs. Kalganda Shidgonda Patil and others AIR 1957 SC 363 , I am of opinion that the amendment in the present case ought to have been allowed by the learned appellate Judge as it goes to the root of the case affecting the question of tenability of the suit as also the jurisdiction of the civil Court. From this point of view, I am of opinion that the learned appellate Judge acted illegally in disallowing the amendment on the assumption that the tenant would be estopped from challenging the landlord's title, specially when the bar of estoppel cannot operate against the question as to the applicability of the Displaced Persons (Re-habitation and Compensation) Act, 1954. That is not the test that would be applicable to the present case. It is also clear from the record that certain subsequent developments took place during the pendency of the litigation. As such, it would be the duty of the Court to take note of such subsequent developments and to adjudge the rights of the parties on that basis. In this connection, I might refer to the documents filed in the first appellate Court which undoubtedly establish certain facts which cannot be assailed by the respondent. 12. It is to be noted that the present suit was filed on 6-9-1960. In this connection, I might refer to the documents filed in the first appellate Court which undoubtedly establish certain facts which cannot be assailed by the respondent. 12. It is to be noted that the present suit was filed on 6-9-1960. The Managing Officer-cum-Assistant Custodian of Evacuee Property had passed an order, dated, 7-1-1960 handing over provisional possession of the property to the respondent on the following conditions :- "(1) You are therefore advised to take possession of the same from Tahsildar from 1-1-1960. You may exercise full power and control over the management of said property; (a) take all steps authorised by law for realising the arrears of rent and any local taxes of dues payable by tenants from the date of possession. (b) make such repairs as are necessary for the security of the building. (c) no rent will be charged from you in respect of the property from the date of provisional handing over of the above property to you and that you will be responsible for its safety, proper maintenance and repairs and liable for the payment of municipal and local taxes from the date of such possession . (2) As this transfer is made on provisional basis sale mortgage or lease of the property will not be permissible until full and final rights of ownership are transferred to you and a certificate of sale issued." Therefore, it will be seen that the respondent by the said order had no right even to lease the property to any other person. Consequently, he had no right to terminate the lease already given to the appellant by the mortgage, Shri Jall. That jurisdiction would vest in the Managing Officer or the Custodian as per section 29 of the Act providing for special protection from ejectment of certain classes of persons. Consequently, he had no right to terminate the lease already given to the appellant by the mortgage, Shri Jall. That jurisdiction would vest in the Managing Officer or the Custodian as per section 29 of the Act providing for special protection from ejectment of certain classes of persons. It is relevant to reproduce the necessary provision :- "(1) Where any person to whom the provisions of this section apply, is in lawful possession of any immoveable property of the class notified under sub-section (2), which is transferred to another person under the provisions of this Act, then, notwithstanding anything contained in any other law, such person shall, without prejudice to any other right which he may have in the property, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of lent or otherwise on which he held the property immediately before the transfer: Provided that notwithstanding anything contained in any such terms and conditions, no such person shall be liable to be ejected from the property during such period not exceeding two years as may be prescribed in respect of that class of property, except on any of the following grounds, namely: (a) that he has neither paid nor tendered the whole amount of arrears of rent due after the date of the transfer within one month of the date on which a notice of demand has been served on him by the transferee in the manner provided in section 106 of the Transfer of Property Act, 1882 (IV of 1882); (b) that he has, without obtaining the consent of the transferee in writing- (i) sublet or otherwise parted with the possession of the whole or any part of the properly, or (ii) used the property for a purpose other than the purpose for which he was using it immediately before the transfer ; (c) that be has committed any act which is destructive of or permanently injurious to, the property. (2) The Central Government may, hem time to time by notification in the Official Gazette, specify the class of persons to whom, and the class of immoveable property in the compensation pool, other than agricultural land, in respect of which, the provisions of this section shall apply and in issuing any such notification the Central Government shall have regard to the following matters, that is to say,- (a) the length of the period for which any such persons may have been in lawful possession of the property; (b) the difficulty of obtaining alternative accommodation; (c) the availability of any other suitable residential accommodation for the use of the transferee; and (d) such other matters as may be prescribed." 13. The sale certificate in favour of the respondent was actually issued on 16-8-1961. That will be the relevant date for the purpose of adjudging rights under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The tenant would be exempt from eviction for a period of 2 years from that date, as that would be the date of transfer. In this connection, I am in full agreement with the view expressed by my learned brother, S.B. Sen, J. in Motandas and others Vs. Gopaldas Basarmal 1961 JLJ 1191 = AIR 1962 MP 307 1962 MPLJ 790 that the period of 2 years would have to be counted from the date of the sale certificate, and not from the date of provisional transfer or provisional delivery of possession. Therefore, the appellant would be exempt from eviction till 16-8-1963. Consequently, the quit notice, as also the notice of demand, dated, 26-7-1960 (Ex. P-1) given by the respondent would not be a valid notice, which could only be operative for the purpose of section 4 (a) of the Accommodation Control Act, 1955. The only remedy of the respondent under the circumstances was to approach the Managing Officer or the Custodian, who alone would be competent to take the necessary steps in this behalf as per section 19 of the Act. 14. The attempt of the respondent was to suppress all these facts and to make it appear a simple case under section 4 (a) of the Act. 14. The attempt of the respondent was to suppress all these facts and to make it appear a simple case under section 4 (a) of the Act. But if the facts disclosed by the amendment application of the appellant are to be taken note of, it is clear that the suit is not at all tenable in the civil Court, and the matter would be within the exclusive jurisdiction of the managing officer or the Custodian in exercise of his power of management by virtue of section 19 of the Act, and such a matter would be excluded from cognizance by a civil Court by virtue of section 36 of the Act. It is to be noted that it is the Managing Officer alone who has the power to vary or cancel leases or allotment of any property acquired under this Act. It is further to be noted that the provisions of section 19, as also section 29 of the Act contain a non-obstante clause, and the provisions of this Act are to prevail notwithstanding anything to the contrary in any other enactment. Similarly, the jurisdiction of the Court as per section 36 of the Act, save as otherwise expressly provided in the said Act is excluded. Consequently, the civil Court would have no jurisdiction to entertain a suit for eviction unless the property ceases to be evacuee property. It ceased to be such property only after a sale certificate in favour of a transferee is issued by the Custodian. But even then, the other provisions of the Act will be operative, such as the one in section 29 of the Act protecting a tenant from ejectment for a period of 2 years and the jurisdiction to oust a tenant will be that of the Managing Officer or the Custodian till the provisions of the Act are applicable. 15. However, the learned counsel for the respondent urged that the period of 2 years as provided by section 29 of the Act expired during the pendency of the present appeal, that is, on 16-8-1963. Therefore it is suggested that this Court should take note of the subsequent developments and adjust the rights of the parties accordingly. Further, it is suggested that the present suit for eviction need not be dismissed; but the same can be decreed on the facts as they stand. In this connection I find one defect. Therefore it is suggested that this Court should take note of the subsequent developments and adjust the rights of the parties accordingly. Further, it is suggested that the present suit for eviction need not be dismissed; but the same can be decreed on the facts as they stand. In this connection I find one defect. As long as the Displaced Persons (Compensation and Rehabilitation) Act, 1954 was applicable, the jurisdiction would be that of the Custodian or the Managing Officer to evict a tenant. That jurisdiction cannot be appropriated by the civil Court during the applicability of the Act. The notice of demand, dated, 26-7-1960 was given by the respondent during the period the Managing Officer was competent to evict the tenant. Therefore, that notice of demand cannot be considered to be a valid notice of demand for the purposes section 4 (a) of the M.P. Accommodation Control Act, 1955. It could certainly be a valid notice of demand, if the suit civil Court had been tenable. Therefore, I am unable to follow the course suggested by the learned counsel. That notice of demand, in my opinion, cannot be the basis of a suit for eviction, which can be tenable after the Displaced Persons (Compensation and Rehabilitation) Act., 1954 ceases to apply. If the respondent has any grievance still left, he would certainly be able to file a fresh suit under any of the grounds covered by section 12 of M.P. Accommodation Control Act, 1961. I refrain from expressing any opinion regarding that. 16. To conclude, I am of opinion that on the amendment of the appellant being allowed, the entire aspect of the case changes, with the result that the present suit for eviction would not be tenable in a civil Court, and the respondent would have no right to evict the tenant except in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 till the Act ceases to be applicable. Consequently, the decree of eviction passed by the Courts below cannot be sustained in law. As a result the same is set aside and the respondent's claim for eviction is dismissed while the money portion of it is upheld, However, under the circumstances, there shall be no order and to costs throughout. Leave for filing letters patent appeal sought by the respondent is refused.