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1965 DIGILAW 374 (ALL)

Kundan Lal Midha v. Sardar Manohar Singh

1965-09-17

LAKSHMI PRASAD

body1965
JUDGMENT Lakshmi Prasad, J. - This is a plaintiff' s appeal arising out of a suit for possession and arrears of rent. It is not in dispute that the respondent is a tenant of the appellant in the disputed accommodation. Rate of rent is also not in dispute. The suit was filed on the allegation that the appellant had obtained permission as required by Sec. 3 of U.P. Act III of 1947. The claim was contested on the ground that there was a novation of agreement between the parties subsequent to the service of the notice determining tenancy on the respondent and further on the ground that the permission relied on by the appellant was not a valid permission. The trial court rejected both these pleas in defence and decreed the suit. In first appeal by the defendant in the suit the first appellate court upheld the finding of the trial court on the controversy regarding the alleged novation of the agreement but came to a different finding on the other controversy with the result that it dismissed the claim for ejectment though maintained the decree for rent as passed by the trial court. Hence the plaintiff has come up in second appeal. 2. I have heard learned counsel for the parties. The only point in issue in the second appeal is as to whether or not the permission obtained by the appellant is a valid permission. What happened in this case was that the appellants application for permission to the District Magistrate was rejected by the Rent Control and Eviction Officer. He filed a revision against that order before the Commissioner who allowed the same and accorded the required permission. The sole contention, which found favour with the first appellate court, raised on behalf of the respondent is that the condition precedent to the exercise of the revisional jurisdiction vested in the Commissioner under Sec. 3(3) of the Act is that the must first record a finding that he is not satisfied as to the correctness legality or propriety of the order passed by the District Magistrate before he can pass an order altering or reversing the order passed by the District Magistrate. The contention is that either the order passed by the Commissioner should specifically mention about the said non-satisfaction or there should be some evidence led in the case to show that non-satisfaction in order to make the permission granted by the Commissioner a valid permission within Sec. 3(3) of the Act. I am unable to agree with this contention. The first appellate court has written a very long judgment and has gone on propounding matters in the course of its judgment which can hardly be upheld. Having regard to the wide phraseology of Sec. 3(3) there is little doubt that the authority vested thereunder with the power of revision exercises wide powers in the matter of judging the legality, correctness or propriety of the order passed by the District Magistrate. Hie first appellate court has reproduced in its judgment the entire order passed in this case by the Commissioner. A perusal of that order itself shows that Commissioner, after taking into consideration the relevant matters, came to the conclusion that the order sought to be revised was not a proper order and as such he passed a different order which he thought was a proper order in the circumstances of the case. Merely because the Commissioner has not said it in his order in so many words, that the order sought to be revised is not a proper order, it furnishes hardly any ground for holding that the Commissioner's order is not a valid order. The first appellate court has conceded that it is not necessary in die revisional order to say in so many words that the order sought to be revised is not a proper order. It, however, lays down that in case there is no such express mention in the revisional order there can be no presumption that the revisional order came to be passed on the competent authority being satisfied that the order was not proper. It is unnecessary to go into that controversy as to whether there can arise such a presumption or as to on whom lies the onus to prove the condition precedent for reversing the order of the District Magistrate because on a reading of the Commissioners order in the instant case I am satisfied that it clearly shows that the Commissioner reversed the order of the District Magistrate after being satisfied that it was not a proper order. I am unable to agree with the statement of law made by the first appellate court that if criterion A has been applied for rejecting the landlords application for permission by the District Magistrate then it is not open to the revising authority to apply criterion B for allowing the application of the landlord irrespective of the fact as to which of the two criteria is more relevant. There appears to be no justification for this proposition. Having regard to the wide amplitude of the power conferred by Sec. 3(3) on the revising authority it has obviously full power to deal with the application for permission in most appropriate manner in its own light. It may further be pointed out that what is mentioned in Sec. 3 (3) as a condition precedent to the reversal, alteration or modification of the order of the District Magistrate cannot be taken to be a condition precedent to the exercise of the jurisdiction vested in the revising authority under Sec. 3(3). Even if the application in revision is to be dismissed it can be so done only after assuming jurisdiction. So the observation of the first appellate court, that in the absence of a finding that the order of the District Magistrate was illegal, incorrect or improper, the Commissioner had no jurisdiction to entertain the application in revision, is obviously erroneous. What is the condition precedent for interference with the order of the District Magistrate is not to be confounded with the condition precedent to the exercise of the jurisdiction. I see absolutely no reason to hold that the Commissioners order is not within the four corners for Sec. 3(3) or that it is invalid. I accordingly set aside that finding of the first appellate court. 3. There is no other point that calls for determination in the case. I accordingly allow the appeal and setting aside the decree of the first appellate court restore that of the trial court. As prayed by the learned counsel for the respondent, I allow two months time to the respondent to vacate the premises. The respondent shall bear his costs and shall pay the appellants costs in all the courts. Appeal allowed.