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PETITIONER: DESHRAJ

       Vs.

RESPONDENT: AKHTAR HUSSAIN

DATE OF JUDGMENT: 12/09/1960

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS WANCHOO, K.N. HIDAYATULLAH, M. SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L. GAJENDRAGADKAR, P.B. SUBBARAO, K.

CITATION:  1961 AIR  148            1961 SCR  (1) 665

ACT: Rent,  fixation  of-Suit  flied under  ordinance  after  due notice Ordinance replaced by Act--Plaint returned-Fresh suit filed-Whether   fresh  notice  necessary-United   State   of Gwalior,  Indore  and Malwa  (Madhya  Bharat)  Accommodation Control Act, Samvat 2006 (M.  B. 15 of 1950) s. 7(2).

HEADNOTE: The appellant, after due notice to the respondent, had filed a  suit  for fixation of rent under the  provisions  of  the Accommodation  Control  Ordinance  Madhya  Bharat.   In  the meantime  the Accommodation Control Act (M.  P. 15 of  1950) came  into force and the plaint filed by the  appellant  was returned.   The  appellant without serving a  second  notice filed a fresh suit under the Act,, which was decreed. The respondent contended that a suit could not be instituted under the Act without a fresh notice, because of s. 7(2)  of the Act. Held, that s. 7(2) of the Accommodation Control Act (M.   P. 15  of 1950) contemplates that a notice should be given  but there  are no words in the section which made it  obligatory that  the notice should be issued in terms as under the  Act and be given after the Act came into force.  In the  instant case  it cannot be said that the notice which was  given  by the appellant was not a proper notice.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 24 of 1956. Appeal  by special leave from the judgment and  order  dated March  31, 1954, of the former Madhya Bharat High  Court  in Civil Revision No. 183 of 1952. I.   M.  Lal  and  A. G.  Ratnaparkhi,  for  the  appellant. Rameshwar Nath and S. N. Andley, for the respondent. 1960.   September  12.   The  Judgment  of  the  Court   was delivered by

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KAPUR J.-This is an appeal against the judgment and order of the High Court of Madhya Bharat at Gwalior and arises out of proceedings  between a landlord and his tenant  taken  under the Accommodation 666 Control  Act  (XV of 1950) which, for the sake  of  brevity, will be termed the Act. On  March  14,1948, the appellant took two houses  in  Morar from the respondent at a monthly rental of Rs. 80 plus other charges at Rs. 5 per month. On  October  20,  1948, the appellant brought  a  suit  for- fixation  of rent in the court of the Cantonment  Magistrate at  Morar  under  the provisions  of  Accommodation  Control Ordinance  (Ordinance XX of 2004-S.). The Act was passed  on January 25, 1950, and came into force on February 10,  1950. Because of the passing of the Act the plaint was returned on March  20,  1950, for want of  jurisdiction.   Thereupon  on April 28, 1950, the appellant filed the suit before the Rent Controller out of which this appeal has arisen.  In the suit he prayed for the fixation of fair rent at Rs. 20 per month. The respondent pleaded inter alia that the suit could not be instituted before the Rent Controller and that the suit  was incompetent  because no notice under s. 7(2) of the Act  had been given. Both the pleas of the respondent were overruled and the Rent Controller  held  that the notice which  the  appellant  had given  prior  to  the institution of the first  suit  was  a proper  notice  and he decreed the suit and fixed  the  fair rent at Rs. 483 per annum.  The respondent took an appeal to the  District  Judge  who  upheld  the  order  of  the  Rent Controller  but  the question of notice under s. 7  was  not raised in that court.  The respondent then filed a  Revision Petition in the High Court under s. 115 of the Code of Civil Procedure and under Art. 227 of the Constitution.  The  High Court held that notice under s. 7 was a condition  precedent to  the institution of the suit; that as no such notice  was given  the Rent Controller had no jurisdiction to  make  the order.   The High Court also held that the  Rent  Controller had passed a decree which operated retrospectively from  the date of the execution of the lease deed which the Controller had  no authority to decree.  It was further held  that  the original suit was properly instituted in the civil court and the passing of the Act did not take away the jurisdiction of that  court  and therefore the civil court should  not  have returned the plaint of the appellant.                             667 The principal question for decision is whether a suit  could be  instituted without a fresh notice because of s. 7(2)  of the Act ? That section provides: "Where  no rent for any such accommodation has  been  agreed upon or where the landlord wishes to enhance, or the  tenant wishes  to reduce the rent agreed upon, the landlord or  the tenant,  as the case may be, by giving notice in writing  to the  other  party shall proceed for having  the  rent  fixed under subsection (4) All  that this section contemplates is that a notice  should be given.  There are no words which make it obligatory  that the notice should be issued in terms as under the Act and be given  after the Act came into force nor has  it  prescribed any  particular  form.  The trial court held that  a  proper notice had been given and therefore s. 7 was applicable.  No such  question  was  raised in appeal  before  the  District Judge’  and  therefore  it was not  adjudicated  upon.   The question  however was raised before the High Court.  In  our opinion it cannot be said that the notice which was given by

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the  appellant was not a proper notice nor does the  section mean, as contended by the respondent, that the notice had to be given as under and after the Act came into force.  As  we have said above it is significant that this point was  never taken before the District Judge. Lastly  the High Court held that the plaint should not  have been  returned  by  the civil court  because  the  suit  for fixation of fair rent related also to a period prior to  the Act.  Fairly construed the order of the Rent Controller does not  operate retrospectively from the date of the  beginning of  the lease but appears to us to be prospective and  after the  coming into operation of the Act the  jurisdiction  was vested  in the Rent Controller and not in the  civil  court. This point therefore has no substance. In  the result this appeal is allowed and the  judgment  and order of the High Court are set aside and that of the  trial court   restored.   The  appellant  will  have   his   costs throughout. Appeal allowed. 668