Satish Chand Jain v. District Magistrate — 1981 DIGILAW 1027 (ALL)

Judgment Satish Chandra, C.J. 1. THIS is a writ petition by a tenant. It prays for a writ of prohibition requiring the execution court not to proceed with the execution of a decree because the decree was passed by a court which had no jurisdiction to entertain the suit. 2. THE decree is for ejectment of a tenant which was passed in a suit filed by the landlord on the basis of permission granted to sue for the eviction of the tenant under Section 3 of the Rent Control Act of 1947. THE suit was filed in the court of the Civil Judge on the regular side on May 13, 1972. THE present applicant contested the suit. Somewhere after September 20, 1972 it was transferred to the court of the Additional District Judge who tried it as a small cause court suit. After trial, the suit was decreed on April 27, 1973. THE tenant filed a revision in the High Court which was dismissed. Then he went to the Supreme Court where also he failed. Thereafter the tenant filed suit no. 415 of 1979 in the court of City Munsif, Saharanpur, for a declaration that the decree passed by the Small Cause Court in suit no. 1 of 1972 was without jurisdiction, nullity and unexecutable. The landlords contested the suit and filed a written statement. The plaintiff applied for an injunction that pending the disposal of the suit, the decree for eviction may not be executed. That application was dismissed. An appeal filed against that order was also dismissed. Thereupon the plaintiff has filed the present writ petition. 3. IT will be seen that the relief claimed in the writ petition is virtually the same as claimed by the applicant in the suit filed by him. Learned counsel, however, stresses that he prays for the issue of a writ of prohibition and for that the existence or even the exercise of an alternative remedy is not barred. Assuming that the argument is correct and without going into it, I considered it fit and proper and have heard learned counsel on the merits of the submissions raised in the writ petition. 4. ON the merits, the principal question is whether the Court of Small Causes which decided the earlier suit no. 1 of 1972, had jurisdiction to entertain that suit and whether the decree passed by it was without jurisdiction. 4. ON the merits, the principal question is whether the Court of Small Causes which decided the earlier suit no. 1 of 1972, had jurisdiction to entertain that suit and whether the decree passed by it was without jurisdiction. The Small Cause Courts Act by its Second Schedule lays down the category of cases which are not within the cognizance of the Court of Small Causes. Article (4) initially dealt with suits for possession of immoveable property. By the U. P. Civil Laws Amendment Act No. 37 of 1972 (which came into force on September 16, 1972), Article (4) was re-enacted as under :- "(4) A suit for the possession of immoveable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease. Explanation....................................................." 5. LEARNED counsel for the applicant submitted that a Court of Small Causes is a court of limited jurisdiction. It would entertain suits of the nature authorised by law. The suit filed by the plaintiff was a suit on the basis of permission granted under the Rent Control Act of 1947. It was a suit under that Act. The Rent Control Act of 1947 did not postulate or require determination of tenancy as a condition to the institution of a suit for eviction of a tenant. Therefore that suit could not, in law, be deemed to be a suit filed by a lessor for the eviction of a lessee after determination of the lease and hence it was outside the purview of Article (4) as amended. 6. IN other words, the submission is that a Small Cause Court has jurisdiction to entertain a suit by lessor for the eviction of the lessee after the determination of the lease, that is to say, in cases where the law requires the determination of the lease. If such law does not require determination of the lease, a suit would be outside the purview of the Small Cause Court even where factually the landlord may have determined the lease. If such law does not require determination of the lease, a suit would be outside the purview of the Small Cause Court even where factually the landlord may have determined the lease. Put in positive form, the submission is that the Small Cause Court has jurisdiction to entertain only that category of suits for the eviction of a lessee in which the applicable law requires determination of lease and in which the landlord has in fact, determined the lease. Other cases, either where the law does not require determination of the lease or, cases where the law so requires, the landlord had not, in fact, determined the lease, would be entertainable by the general civil court on the regular side. IN support reliance has been placed on V. Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745 . I am, however, unable to agree. Article (4) of the Second Schedule aforesaid refers to a suit between the lessor and lessee where the relief is for the eviction of the lessee. Two conditions are mentioned in it, that the suit should be from a building and it should be filed after the determination of the lease. This statutory provision specifically requires the fulfilment of the condition precedent, namely, determination of the lease before the Small Cause Court can entertain a suit for the eviction of the lessee at the instance of the lessor. If the lessor has determined the lease he fulfils the condition precedent. The Small Cause Court cannot refuse to entertain a suit of that nature. For the fulfilment of the conditions mentioned in Article (4) the question whether the general law governing the relationship of landlord and tenant requires or does not require the determination of the lease as a condition precedent for the filing of a suit for the eviction of the lessee is entirely irrelevant. Article (4) deals with the jurisdiction of the Small Cause Court to entertain a suit. The question whether the law governing relationship of landlord and tenant requires or does not require determination of the lease would be relevant to the relief that may be granted by the court. Article (4) deals with the jurisdiction of the Small Cause Court to entertain a suit. The question whether the law governing relationship of landlord and tenant requires or does not require determination of the lease would be relevant to the relief that may be granted by the court. The express statutory provision under Article (4) cannot be ignored because of the exigency that at a particular time the Rent Control Act did not specifically require determination of lease as a condition of the valid institution of a suit for eviction, more so when this question was not free from difficulty. This Court had all along held that to maintain a suit for the eviction of a tenant on the ground either based on the permission granted under Section 3 of the old Act or for violations mentioned in clauses (a) to (f) thereof, determination of tenancy was a condition precedent. Learned counsel relies upon the Supreme Court case in V. Dhanapal Chettiar (supra) for the proposition that where the State Rent Control Acts are in operation, it is not necessary to give notice under Section 106 Transfer of Property Act. That may be so. But, as stated earlier, the question whether a suit could be validly instituted without determination of tenancy so that the plaintiff may get relief for eviction is different and independent from the question that which court will have jurisdiction to entertain such a suit. 7. LEARNED counsel then drew my attention to clause (s) of Section 43 (2) of the Rent Control Act No. 13 of 1972. This section originally provided : "Any suit for the eviction of a tenant instituted with the permission referred to in Section 3 of the old Act or any proceeding arising out of such suit, pending immediately before the commencement of this Act, may be continued and concluded as if this Act had not been passed ......... ........." Subsequently, U. P. Act No. 19 of 1973 amended it retrospectively so as to say "pending immediately before the commencement of U. P. Civil Laws Amendment Act No. 37 of 1972 may be continued and concluded as if this Act had not been passed." 8. ........." Subsequently, U. P. Act No. 19 of 1973 amended it retrospectively so as to say "pending immediately before the commencement of U. P. Civil Laws Amendment Act No. 37 of 1972 may be continued and concluded as if this Act had not been passed." 8. STILL further U. P. Act No. 28 of 1976 amended this clause again and the relevant portion read ;- "Pending immediately before the commencement of the U. P. Civil Laws Amendment Act No. 37 of 1972 may be continued and concluded in accordance with the old Act which shall, for that purpose, be deemed to continue to be in force." Apparently, the intention was that the suits based upon the provisions of the 1947 Act should continue to be dealt with as if this Rent Control Act had not been passed. But, later on, the idea was made specifically clear by saying that they may be continued and concluded in accordance with the old Act. The existence of clause (s) or its various amendments have no material bearing on the question as to which court will entertain the suit based on the permission granted under the old Act. This clause only means that the provisions of the old Act will continue to remain in operation and govern the rights of the parties whatever they may be for the purpose of disposal of the suit on its merits which was pending before the mentioned date. 9. I am not at all satisfied that the court of Small Causes which entertained the earlier suit for ejectment, had no jurisdiction. On the other hand, I am fully satisfied that it had jurisdiction to entertain the suit and the decree passed by it was validly executable. 10. THE writ petition has no substance and is accordingly dismissed with costs. Learned counsel prays for some time to vacate the premises. He states that the applicant undertakes to vacate the premises on the expiry of four months from today and hand over vacant possession of the accommodation in dispute to the trial court or to the Commissioner appointed by it at the instance of the decree holder-opposite parties. Learned counsel further states that the applicant undertakes that he will not damage the property meanwhile. In view of this undertaking, I direct that the decree for ejectment shall not be executed for a period of four months from today. Petition dismissed.