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1972 DIGILAW 541 (ALL)

Raj Kishore Misra v. State of U. P.

1972-12-18

R.L.GULATI

body1972
JUDGMENT R.L. Gulati, J. - This petition is on behalf of two petitioners, who are tenants of separate portions of a house. On an objection raised by the learned counsel for the respondents with regard to the maintainability of a joint petition, I ordered on 28.11.1972 that an additional Court fee of Rs. 100/- should be supplied. The necessary court fee has been supplied to day. The petition is therefore in order. 2. The house in question belonged to the second respondent, Mata Shree Anandamayee Sangh, a society registered under the Societies Registration Act (hereinafter referred to as the Landlord). The landlord applied to the Rent Control and Eviction Officer for permission to institute a suit for the ejectment of the petitioners. The permission was granted by an order dated April 27, 1970. The permission was to take effect from May 28, 1970. The petitioners moved the Commissioner, Varanasi Division, in revision but did not succeed. Thereafter the petitioners preferred a revision petition to the State Government under Section 7-F of the U.P. Rent Control and Eviction Act. That petition has also been dismissed by an order dated November 2, 1970 on the ground that the same had become infructuous, the landlord having already filed a suit. This order of the State Government has been challenged in this petition under Article 226 of the Constitution. 3. As has already been pointed out, the permission granted by the Rent Control and Eviction Officer was to take effect from May 28, 1970, i.e. after the period of one month from the date of the order. Obviously, one month's time was allowed to the petitioners to approach the Commissioner by way of revision and to obtain a stay order, if necessary. But, the landlord did not wait for the period of one month and filed a suit just on the third day i.e. on April 30, 1970. The suit was premature and in the eye of law was a suit filed without permission. Such a suit could not preclude the State Government from deciding the petitioners' revision petition on merits. It is only a suit which is validly filed in pursuance of the permission granted by the Rent Control and Eviction Officer or the Commissioner that can oust the jurisdiction of the State Government. The fact that the Commissioner had dismissed the revision of the petitioner is of no consequence. It is only a suit which is validly filed in pursuance of the permission granted by the Rent Control and Eviction Officer or the Commissioner that can oust the jurisdiction of the State Government. The fact that the Commissioner had dismissed the revision of the petitioner is of no consequence. The suit was invalid to begin with and it did not become valid merely because the Commissioner had affirmed the order of the Rent Control and Eviction Officer. 4. This view is supported by a decision of the Supreme Court in Smt. Prabhawati v. Dr. Pritam Kaur, AIR 1972 Supreme Court 1915. There the State Government had passed an order staying the operation of the permission granted to the landlord to institute a suit for the ejectment of a tenant during the pendency of the revision of the tenant. Eventually the revision petition was allowed by the State Government and the permission granted to the landlord was set aside. The landlord challenged the legality of the order of the State Government before this Court under Article 226 of the Constitution. This Court set aside the order of the State Government on the ground that the State Government on deciding the revision petition had allowed itself to be influenced by irrelevant considerations. The State Government was directed by this Court to re-hear the revision petition and decide it according to law. This order was passed on February 28, 1967 and on the very next day, the landlord filed a suit for the eviction of the tenant. When the revision petition came up for hearing before the State Government it was represented on behalf of the landlord that in view of the institution of the suit, the revision petition had become infructuous. This plea was accepted by the State Government and the revision petition was dismissed as having become infructuous. The tenant filed an appeal before the Supreme Court which was allowed on the ground that - "No party to a litigation can be permitted to frustrate the decision referred by having recourse to trickery. The true effect of the order made by the High Court in the writ petition was that the question whether the respondent should be permitted to file a suit for ejectment of the appellant or not must be gone into and decided afresh by the State Government. The true effect of the order made by the High Court in the writ petition was that the question whether the respondent should be permitted to file a suit for ejectment of the appellant or not must be gone into and decided afresh by the State Government. One of the implications flowing from that order is that the respondent is precluded from filing the intended suit for eviction till the State Government decides the revision petition. Otherwise the direction given by the High Court would remain unobeyed." In the end the Supreme Court observed : "In our opinion, the suit filed by the respondent was a premature one. Such a suit does not bar the State Government from disposing of the revision petition in pursuance of the order made by the High Court. The State Government was not justified in dismissing the revision petition as being infructuous." 5. The same principle would apply squarely to the facts of the present case. The direction of the Rent Control and Eviction Officer was that the landlord should not file the suit for a period of one month from the date of the order granting the permission. The landlord could not disregard this direction and file a suit in order to frustrate the intention behind that order. Such a suit was clearly premature and could not oust the jurisdiction of the State Government. 6. Accordingly this petition succeeds and is allowed. The order of the State Government dated November 2, 1970 (Annexure 'C') under Section 7-F is quashed. The State Government is directed to restore the revision petition of the petitioner to its original number and decide it afresh on merits in accordance with the law. 7. The petitioner is entitled to the cost of this petition from the second respondent.