Babu Lal v. Kedar Nath Kakkar — 1971 DIGILAW 533 (ALL)

JUDGMENT Jagmohan Lal, J. - This second appeal has been filed by a tenant against whom a decree for ejectment and arrears of rent has been passed by the Munsif Rae Bareli and that decree was confirmed in appeal by the Civil Judge, Rae Bareli, who dismissed the appeal filed by the defendant-appellant. 2. I heard Sri H. N. Tilhari, learned counsel for the appellant, and Sri S. C. Das, learned counsel for the respondent. 3. The brief facts of the case, so far as relevant for the decision of this second appeal, were that the shop in suit which was let out by the plaintiff--respondent to the defendant-appellant at the rate of Rs. 4.50 per month as rent is governed by the provisions of the U. P. (Temporary) Control of Rent and Eviction Act (Act III of 1947). The plaintiff obtained permission to file a suit for ejectment against the defendant from the District Magistrate under section 3 of the Rent Control Act and thereafter he served a notice to quit on the defendant. When the defendant did not vacate this shop in compliance with the notice, he filed a suit for ejectment against him. The suit that was filed by the plaintiff originally was withdrawn by him with the permission of the court with liberty to file a fresh suit on the same cause of action. A second suit was then filed, out of which this second appeal has arisen. 4. The defendant's pleas in the suit were that the permission granted by the District Magistrate has been exhausted when the first suit has been filed and thereafter a fresh permission ought to have been obtained before the second suit was filed. The validity of the notice under section 10, of the Transfer of Property Act was also challenged. Both these pleas of the defendant were over ruled by the courts below. Those pleas have again been pressed before me in this appeal by Sri H. N. Tilhari. He also raised a new plea in this appeal with the permission of the court and that was to the effect that section 3 of the Rent Control Act was ultra vires in so far as it conferred uncontrolled, unguided and unchanneled direction on the District Magistrate to grant or refuse permission to file a suit for ejectment. 5. He also raised a new plea in this appeal with the permission of the court and that was to the effect that section 3 of the Rent Control Act was ultra vires in so far as it conferred uncontrolled, unguided and unchanneled direction on the District Magistrate to grant or refuse permission to file a suit for ejectment. 5. So far as this last point is concerned, the matter is concluded by a decision of a Bench of this Court of which I was also a member given a special Appeals Nos. 138 and 143 of 1969 on 10.7.1970. It was held in this case that the said provision of the Rent Control Act is not ultra vires. So far as this Court is concerned the matter is concluded by this decision. 6. So far as the first point is concerned, it has also no merit in it. Section 3 of the Rent Control Act places a bar in the ordinary right of a landlord to file a suit for ejectment against his tenant and that bar can be removed by obtaining the permission of the District Magistrate for filing such a suit. In the like manner section 80 of the Code of Civil Procedure places bar in the common law right of a plaintiff to file a suit against the Government without his serving a notice as required by this section. Once a notice under section 80 of the Code of Civil Procedure has been given to the Government regarding the plaintiff's intention to file his suit on the oasis of his cause of action and the prescribed period after the service of the notice has expired, the bar is removed. In that case if a suit is filed against the Government once, but the same is withdrawn with the permission of the court with liberty to file a fresh suit, a second suit can be filed without serving a fresh notice under section 80 and that notice does not exhaust itself on the filing of the previous suit as was held by the Supreme Court in Amar Nath Dogra v. Union of India, AIR 1963 Supreme Court 424. It was held in this case that there is not much substance in the contention that where after a notice under section 80, Civil Procedure Code, a suit is instituted but that suit is with- drawn with liberty to file a fresh suit, it is the requirement of section 80, Civil Procedure Code, that there should be a fresh notice before the second suit is instituted. If the plaint which is being considered by the Court has been preceded by a notice which satisfied the requirements of section 80, Civil Procedure Code, then the fact that before the plaint then under consideration, there had been another plaint which had been filed and withdrawn cannot, on any principle, be held to have exhausted or extinguished the vitality of the notice issued. The same principle shall apply to a permission obtained from the District Magistrate under section 3 Rent Control Act to remove the bar in the way of the landlord to file a suit for ejectment against his tenant. 7. In Chotey Lal v. Sheo Shanker, AIR 1951 Allahabad 478, a similar view was taken in respect of a permission obtained under section 3 Rent Control Act on the basis of which a suit for ejectment had first been filed, but the same was withdrawn with the permission of the court and then a second suit was filed without any fresh permission. 8. Another decision of this Court on the same point is Pahlad Das v. Ganga Saran and another, AIR 1958 Allahabad 774, in which the previous suit filed by the landlord on the basis of permission has been dismissed on a technical ground and thereafter the landlord filed a second suit for ejectment on the basis of the permission. It was held by a Bench of this Court that where it is not shown that the permission was granted to file a single suit or that it had been specified in it that a second suit could not be filed on its basis, the permission cannot exhaust itself simply because the first suit filed on its basis was dismissed on some technical ground, such as defective notice, and the permission obtained can be availed of for filing the second suit for ejectment. 9. 9. The decision in Bashi Ram v. Mantri Lall, 1965 A.L.J. 58, referred to by Sri Tilhari, has no relevancy for the decision of the point before us. In that case the question was where after obtaining the permission from the District Magistrate a suit had been filed whether the permission could subsequently be set aside by the State Government under section 7-F Rent Control Act it was held that it could not be done. Pathak J., made the following observation in his judgment: "The bar being to the institution of the suit, the moment that suit is filed the permission exhausts itself, and the suit has to be decided in accordance with law on the basis of the pleadings of the parties and the evidence on the record." In that case the suit that was filed on the basis of the permission was a live suit in which the rights and liabilities of the parties including the effect of this permission had been considered and decided on merits. In the present case the previous suit that was filed on the basis of the permission was withdrawn by plaintiff with the permission of the court and with liberty to file a fresh suit on the same cause of action. After that withdrawal, that suit was effaced and in the eye of law it meant as if no suit had been filed and it was only the second suit which was an effective suit filed to achieve the purpose for which the permission had been obtained. 10. The third point that was argued by the learned counsel for the appellant was that the notice under section 106, Transfer of Property Act, which was served on the defendant was not a valid notice and it did not determine the tenancy. A perusal of this notice dated 17.2.1966 shows that though the landlord has not specifically used the words that he was determining the tenancy of the defendant, his import to do so is quite clear. A perusal of this notice dated 17.2.1966 shows that though the landlord has not specifically used the words that he was determining the tenancy of the defendant, his import to do so is quite clear. In this notice the landlord after stating the reasons as to why he wanted to eject the tenant, referred to the order of the District Magistrate under which he had granted permission to the landlord to file a suit for ejectment against the tenant after the expiry of three months from the date of that order, and there required the tenant to vacate the premises soon after the expiry of 30 days of the receipt of the notice or, if he so liked, on the expiry of three months from the date of the order of the District Magistrate which was 14.2.1966. It was further stated that if the tenant failed to comply with the notice a suit for ejectment would be filed against him in court. In my opinion, these statements of the landlord contained in this notice clearly express his intention to determine the tendency of the tenant and not to allow him to continue in possession of the premises in any case after the expiry of three months from the date of the order of the District Magistrate granting permission under section 3, Rent Control Act. This subsequently satisfies the requirements of section 106 Transfer of Property Act. 11. The fact that in this notice two different periods had been mentioned for vacating the premises will not make it invalid. 30 day's time mentioned in section 106, Transfer of Property Act, is the minimum time and it is open to the landlord to give a notice of a longer period. In this case also what the land- lord had done was to require the tenant to vacate the premises soon after the expiry of 30 days from the service of the notice, but had further given him an opinion to retain his possession, if he so liked, till the expiry of three months from the date of the order of the District Magistrate in view of the conditions that had been imposed by the District Magistrate in the permission granted by him. In any case the notice does not suffer from any flaw. 12. No other point was pressed in this appeal. 13. The appeal is dismissed with costs to the respondent. In any case the notice does not suffer from any flaw. 12. No other point was pressed in this appeal. 13. The appeal is dismissed with costs to the respondent. 14. The defendant-appellant is, however, allowed two month's time to vacate the premises. 15. The stay order dated 22.5.1969 is discharged.