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1976 DIGILAW 127 (ALL)

Ram Nath v. State of U. P

1976-02-26

G.C.MATHUR, K.C.AGGARWAL

body1976
JUDGMENT K.C. Agrawal, J. - This Special Appeal is directed against the judgment of our learned brother K.N. Singh dismissing the writ petition filed by the appellant for the issue of a writ of Certiorari to quash the order of the State Government dated 29.5.1972 dismissing his representation filed under Section 7-F of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter called 'the Act'). The facts leading to this appeal are these : 2. Smt. Ram Rati Devi, respondent No. 4 who is the owner of house No. 95, situate in Mohalla Dindarpura, Moradabad, filed an application under Section 3 of the Act for permission to file a suit against Ram Nath appellant, on the ground that the house was required by her for her use and occupation. The application was resisted by the appellant and the assertion of respondent No. 4 that she required the house for her occupation was denied. The appellant alleged that her need was not bona fide. The application was allowed by the Rent Control and Eviction Officer by his order dated September 10, 1971, Dissatisfied, the appellant went in revision before the Commissioner under Section 3(3) of the Act. The revision was also dismissed. Against the aforesaid order of the Commissioner, a representation was preferred under Section 7-F of the Act by the appellant. The representation was also accompanied by an application for an interim order staying the operation of the order of the Commissioner. The State Government passed an interim order on Feb. 5, 1972 staying the operation of the order of the Commissioner. But, it appear that before the stay order could be communicated to respondent No. 4 by the State Government she filed the civil suit for eviction of the appellant on the basis of the permission granted by the Commissioner. The fact of the suit having been filed in pursuance of the permission was thereafter, intimated to the State Government by respondent No. 4 by the means of an application. The State Government finding that the suit had been filed by respondent No. 4, dismissed the representation filed by the appellant on the ground that the same had become infructuous. 3. The appellant, thereafter, filed a review application before the State Government. This was also rejected on October 21, 1972, on the ground that the State Government had no jurisdiction to review its orders. 3. The appellant, thereafter, filed a review application before the State Government. This was also rejected on October 21, 1972, on the ground that the State Government had no jurisdiction to review its orders. The appellant thereafter, filed a writ petition in this Court challenging the validity of the order of the State Government rejecting the representation tiled by him under Section 7-F of the Act. The writ petition was dismissed by a learned Single Judge. Hence, the appeal. 4. It is now well settled that the State Government can only exercise its jurisdiction to revise the order of the Commissioner before the actual institution of the suit. If a suit is validly instituted after obtaining the permission under Section 3(1), it does not cease to be maintainable even if the State Government revoke the permission after the institution of the suit. Accordingly, once a suit is validly instituted the power of the State Government to revoke the permission gets exhausted. In view of the above, the State Government was justified in rejecting the representation filed by the appellant on the ground that as the suit had been filed by respondent No. 4 in pursuance of the permission obtained by her, the representation preferred by the appellant had become infructuous and had to be dismissed as no court or authority can be asked to pass an infructuous order. The submission, however, made by Sri S.P. Gupta, counsel appearing for the appellant was that the stay order had, in fact, been communicated to respondent No. 4 by means of a telegram sent by the appellant to her on 7.2.1972, and that the same had been received by her before filing the suit, and therefore, the suit filed could not render the representation filed by the appellant infructuous. In this connection, the submission made further was that in case the State Government would have given an opportunity to the appellant he would have shown that the suit had been invalidly instituted, and that the same did not have any affection the maintainability of the representation. 5. It is common case of the parties that the copy of the letter communicating the stay order by the State Government was received by respondent No. 4 on 11.2.1972. She, therefore, did not have any official information about the stay order on February 7, 1972, when she instituted the suit. 5. It is common case of the parties that the copy of the letter communicating the stay order by the State Government was received by respondent No. 4 on 11.2.1972. She, therefore, did not have any official information about the stay order on February 7, 1972, when she instituted the suit. The question, however, is about the information which the appellant has alleged was given to her by means of the telegram sent on February 7, 1972. The respondent No. 4 has asserted in her counter affidavit that the said telegram was received by her husband at 12-30.p.m. The appellant has not filed any evidence showing that the telegram had been received by her earlier. According to respondent No. 4, the suit was filed by her at 10.30 A.M. on the aforesaid date. In view of these facts, it appears to us that respondent No. 4 did not have any information of the stay order passed by the State Government before she instituted the suit in the civil court on February 7,1972. The appellant has stated in the writ petition as well as in the rejoinder-affidavit that the suit had not been filed by respondent No. 4 before 12-30 p.m., but the circumstances of the present case do not lend support to the above version of the appellant. After the revision filed by the appellant was dismissed by the Commissioner on 2.2.1972, respondent No.4 must have been anxious to avail the same at the earliest and, therefore, the case of said respondent that the suit had been filed by her at 10.30 A.M. on February 7, 1972, appears to be more probable. There is also substance in the submission made on behalf of respondent No. 4 that the telegram had not been received by respondent No. 4 but by her husband and, therefore, the receipt of the said telegram by the husband of respondent No. 4 is not of any help to the appellant. 6. The second aspect which needs to be mentioned in this regard is that the fact of filing of the suit by respondent No. 4 had come to the knowledge of the appellant on February 7, 1972 itself but the appellant did not file any affidavit or evidence before the State Government stating that the suit had been tiled by respondent No. 4 after the stay order had been communicated to her. It may be noted that the representation filed by the appellant was dismissed by the State Government on May 29, 1972, and, therefore, the appellant had more than three months at his disposal since the filing of the suit by respondent No. 4 to inform the State Government about his stand with regard to the communication of the State Government, but the appellant did not do so. This leads us to hold that the appellant having not availed of the opportunity which he had, cannot now he permitted to urge that the order of the State Government rejecting the representation filed by him was bad as he had not been given any opportunity to show that the suit had been filed by respondent No. 4 despite the knowledge of the stay order passed by the State Government. 7. Before parting with the judgment we however, wish to make it clear that we are unable to share the opinion of the learned Single Judge that it is open to the appellant to raise the question of maintainability of the suit before the civil court. The civil court cannot cancel the permission granted by the Commissioner or direct the State Government to reconsider the representation even if it comes to the conclusion that the State Government had the jurisdiction to decide the representation on merits. 8. Subject to the above, the Special falls and is dismissed with costs payable by the appellant to respondents No. 4.