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PETITIONER: MOHAMMAD SWALLEH & ORS. v.

       Vs.

RESPONDENT: IIIRD ADDL. DISTRICT JUDGE, MEERUT & ANR.

DATE OF JUDGMENT04/11/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) OZA, G.L. (J)

CITATION:  1988 AIR   94            1988 SCR  (1) 840  1988 SCC  (1)  40        JT 1987 (4)   291  1987 SCALE  (2)971

ACT:      U. P.  Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972;s. 43(2)(rr) U.P. (Temporary) Control of Rent and  Eviction Act,  1947: s.  3-Permission for eviction granted under  s. 3 of the old Act becoming final-First suit dismissed on technical ground Application for eviction filed under s. 43(2)(rr) of the new Act-Whether maintainable.      Constitution of  India, Arts.  226 &  136:  Absence  of provision  in   Statute  for   appeal-Erroneous   order   of Prescribed  Authority   set   aside   by   District   Judge- Jurisdiction of Court to interfere with.

HEADNOTE: %      Sub-section (1) of s. 3 of the U.P. (Temporary) Control of Rent  and Eviction  Act, 1947  barred suits  without  the permission of  the District  Magistrate against  tenants for eviction except  on  the  grounds  mentioned  therein.  Sub- section (2)  provided for  revision to the Commissioner, and sub-section (4)  made the  order of  the Commissioner final. Section 7-F empowered the State Government to interfere with such orders.  That  Act  was  repealed  by  the  U.P.  Urban Buildings (Regulation  of Letting,  Rent and  Eviction) Act, 1972.      Section 43(2)(rr)  of the  new Act, inserted therein by U.P. Act  37 of  1972, provided  that where  any  permission obtained under  s. 3  of the old Act had become final either before the commencement of the Act or in accordance with the provisions of  the sub-section after the commencement of the Act, the  landlord may apply to the Prescribed Authority for tenant’s eviction.  This section was against amended in 1976 by insertion  of the  words "whether  or not  a suit for the eviction of  the tenant  has been instituted", and giving it retrospective  operation.   The  order   of  the  Prescribed Authority in such cases was made final.      The landlord’s  application under  s. 3 of the 1947 Act for eviction  ’of the  tenants-appellants was granted by the Commissioner in  April, 197I. The revision preferred by them was rejected  by the  State Government in February, 1972 and the permission became final. In pursuance 841

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Of  the said  permission the  landlord  filed  a  suit  for eviction of  the appellants.  Thereafter in 1973 he filed an application for  withdrawal of  the said  suit on the ground that as  the 1972  Act had  been amended,  he would  file an application for enforcement of the permission.      The Court  of Small  Causes found  that as the cause of action on  which  the  suit  had  been  filed  was  rendered infructuous, the  suit  was  liable  to  be  dismissed.  The application filed  by the landlord under s. 43(2)(rr) of the new Act  for eviction of the appellants, was rejected by the Prescribed Authority  on the  ground that  since  permission obtained under  s. 3  of the old Act had been exhausted, the application was  not maintainable.  An appeal  against  that order was allowed by the District Judge.      In the  writ petition  filed by  the appellants-tenants under Art. 226 of the Constitution it was contended that the permission obtained  by the landlord having been utilised by filing the suit, another proceeding on the basis of the said permission could  not be  initiated, and  that no appeal lay from  the  decision  of  the  Prescribed  Authority  to  the District Judge.  The High  Court held  that the landlord had right to  file the second application. It took the view that dismissal of  the first  action taken  by the landlord after obtaining permission  under the old Act did not preclude him from taking the second action under s. 43(2)(rr) of the Act. It further held that since the first suit was not decided on merits subsequent action was not precluded.      Dismissing the appeal by special leave, ^      HELD: 1.  Section 43(2)(rr) of the U.P. Urban Buildings (Regulation of  Letting, Rent  and Eviction) Act, 1972 as it stood in  1973, permitted  a landlord to file an application for the  enforcement of the permission obtained by him under s. 3  of the  1947 Act.  After the  aforesaid provision  was amended in  1976, the  landlord was  not required  to file a suit  to   avail  of   the  permission.  The  amendment  was retrospective in operation. [844G-H]      2. The  Prescribed Authority was in error in taking the view that  as the  previous  suit  had  been  filed  by  the landlord on  the basis  of permission  and the same had been dismissed, the  application under  s. 43(2)(rr)  of the 1972 Act was  not maintainable.  Such a  view would frustrate the very purpose  of the  express provision of the section which conferred a  right on a landlord who had obtained permission under the old Act and has filed an application under the new provision, to get the 842 tenant evicted. More so, when the permission granted had not been exhausted because the suit was dismissed on a technical plea and not on the merit of the contentions. [846C-D; 845C]      Pahlad  Das  v.  Ganga  Saran  and  Another,  AIR  1958 Allahabad 774, approved.      3.1 Finality  of order in judicial proceeding is one of the  essential   principles  which   the   scheme   of   the administration of justice must strive for. [846D]      D.K. Soni  v. P.K.  Mukherjee &  Ors. C.A.  No. 6626 of 1983 decided on October 27, 1987. referred to.      3.2 In  the instant  case, through no appeal lay before the District  Judge, the  High Court  came to the conclusion that the  order of  the Prescribed Authority was invalid and improper. On  that ground  it declined to interfere with the order of  the District Judge in exercise of its jurisdiction under Art.  226 of  the Constitution. Since justice has been done by  setting aside  the improper order of the Prescribed Authority, no  exception can  be taken  to the  order of the

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High Court.  There is,  therefore, no scope for interference under Art. 136 of the Constitution. [847A-B]      1 Shri Bhagwan and Anr. v. Ram Chand and Anr., [1965] 3 SCR 218, inapplicable.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2 107 of 1979.      From the  Judgment and  order dated  22.9. 1978  of the Allahabad High Court in C.M.W. No. 3857 of 1978.      Gobinda  Mukhoty,   Ali  Ahmad,  Mrs.  Jayshree  Ahmad, Tanveer Ahmad, S S Hussain for the appellants.      R.K. Garg and D.K. Garg for the Respondents.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI,  J. This  is a  tenant’s appeal by special leave.  After perusing  the  judgment  impugned  and grounds urged,  we are  of the  opinion, that  there  is  no substance in this appeal 843 On merit,  though there  are one  or two technical breaches. This is  certainly not a decision which should be interfered with in  the exercise  of jurisdiction  under Article 136 of the Constitution  by this  Court. The appeal arises from the judgment and  order dated  22nd September,  1978 of the High Court of Allahabad The respondent No. 2 herein, Smt. Murtaza Begum filed  an application  under  section  3  of  the  U.P Temporary) Control of Rent and Eviction Act, 1947 being U.P. Act No.  3 of  1947, hereinafter called the old Act, against the appellants  Section 3  of the  said  Act  provides  that subject to  any order  passed under  sub-section (3) of that section, no  suit  shall,  without  the  permission  of  the District Magistrate be filed in any court against any tenant for his  eviction  from  any  accommodation  except  on  the grounds mentioned  therein. Sub-section  (2)  of  section  3 provided for  revision to the Commissioner against the order of the  District Magistrate  Subsection  (3)  of  section  3 empowered the Commissioner to hear the application and if he was  not  satisfied  as  to  the  correctness,  legality  or propriety of  the order passed by the District Magistrate or as to  regularity of  proceedings held  before him, alter or reverse his  order or make such other order as might be just and proper. By sub-section (4) of section 3 the order of the Commissioner has  been made final subject to any other order passed by  the State  Government under section 7 of the said Act. Section  7-F  of  the  said  Act  empowered  the  State Government to  call for  the record  of any case granting or refusing to  grant permission  for the  filing of a suit for eviction referred  to and  authorised him to make such order as appeared  to it  necessary for  the ends  of justice. The application for  eviction was granted by the Commissioner in this case  on the  17th April,  1971. The appellants went in revision to the State Government. The revision was, however, rejected by  the State  Government on 7th February, 1972 The permission thereafter became final.      In  pursuance   of   the   aforesaid   permission   the respondent-landlord filed  a suit  being suit No 464 of 1972 in the  court of Judge, Small Causes, Meerut for eviction of the appellants  Thereafter in  1973 the  landlord  filed  an application for withdrawal of the suit on the ground that as U  P   Urban  Buildings  (Regulation  of  Letting  Rent  and Eviction) Act  of 972 being U P Act no 3 of 972. hereinafter called the  New Act,  had been  amended, he  would  file  an application for  the enforcement  of the permission obtained

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under section  3 of  the old  Act. On  that application  the court found  that as  the cause  of action on which the suit had been filed was rendered infructuous, the suit was liable to be  dismissed. After the suit was dismissed, the landlord being respondent no 2 herein filed an application under 844 section 43(2)(rr)  of  the  New  Act  for  eviction  of  the appellants from the premises in question. It was resisted on the ground  that the  permission had  been dismissed and the application under  section 43(2)(rr)  was not  maintainable. The Prescribed  Authority upheld  the said  objection of the appellants  and   rejected  the  application  filed  by  the landlord on the ground that since permission obtained by the landlord under section 3 of the U.P. Act has been exhausted, the application  filed by the landlord was not maintainable. It appears  to us  that the Prescribed Authority was clearly in error  in so  holding because  the permission granted had not been  exhausted because  the  suit  as  dismissed  on  a technical plea  and not  on the  merit  of  the  contentions Reference may be made to the observations in the decision of the Allahabad  High Court in the case of Pahlad Das v. Ganga Saran  and  Another,  AIR  1958  Allahabad  774,  where  the division bench  of that  court held that the obvious purpose of the  permission under  section 3  of the  old Act  was to enable the  plaintiff, the landlord to evict the tenant from the premises  and as long as that purpose was not fulfilled, the permission  could not  obviously exhaust itself Where it was 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,  the permission  could not exhaust itself  simply because  the first  suit filed on its basis  was  dismissed  on  some  technical  ground  and  the permission obtained  could be  availed  of  for  filing  the second suit.  In that  view, the  High  Court  affirmed  the previous decision of that court.      It appears,  however, that  an appeal was filed against the order  of the  Prescribed Authority  and the  appeal was allowed by the order of the District Judge dated 28th April, 1978. Aggrieved  thereby the  tenants filed  a writ petition before the High Court. The controversy in the High Court was whether the  application filed by the landlord under section 43(2)(rr) of  the New Act was not maintainable. The basis of the claim  of the tenant was that as the permission had been utilised by filing the suit, another proceeding on the basis of the said permission could not be initiated The High Court noted that section 43(2)(rr) was added by U.P. Act no. 37 of 1972. By  the addition of the new provision, the legislature conferred a  right on a landlord who had obtained permission under the  old Act  and had  filed an  application under new provision to  get the  tenant evicted.  Section 43(2)(rr) of the New  Act was  again amended  by the  U.P. Act  No. 28 of 1976. By that amendment the words "whether or not a suit for the  eviction  of  the  tenant  has  been  instituted"  were inserted. The  amending Act  laid down that the amendment in the  provision   shall  be   deemed  to   have  always  been substituted. In  other words, the amendment caused amendment to be retrospective in operation. 845      It is,  therefore, apparent  as the  High Court  in our opinion in  the judgment  under  appeal  rightly  held  that section 43(2)(rr)  i.e. in  1973 permitted  the landlord  to file an  application for  the enforcement  of the permission obtained by  him. After the aforesaid provision was amended, the landlord was not required to file a suit to avail of the permission. The  High Court  in the  judgment  under  appeal

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rejected  the   contention  that  once  an  application  for permission had  been filed, the second application would not lie. The  High Court  held that where the first suit was not decided on  merits subsequent  action was not precluded. The High Court  noted that  merits of the case were not examined by the  Court. The Court in this appeal on this occasion did not find  that the  permission obtained  by the landlord was invalid or  illegal. The  judgment of  dismissal was thus on technical ground and not on merits. The High Court held that the landlord  had right  to file  the second application. In our opinion,  the High  Court  was  right  for  the  reasons mentioned hereinbefore.      It is  next contended that since the suit was dismissed on the  ground that  the cause  of action did not survive to the landlord,  it should  be held  that the  landlord had no right left  to file  an application under section 43(2)(rr). This was,  in our  opinion, rightly  rejected  by  the  High Court. The High Court negatived the contention of the tenant that dismissal  of the  first action  taken by  the landlord after obtaining  permission under  the old Act precluded the landlord  from   taking  the  second  action  under  section 43(2)(rr) of the Act.      We are of the opinion that the High Court was right. It will be appropriate at this stage to refer to the provisions of section 43(2)(rr) or the New Act which are as follows:           "Where any  permission referred to in Section 3 of           the old  Act  has  been  obtained  on  any  ground           specified in  subsection (1) or sub-section (2) of           Section 21,  and has  become final,  either before           the commencement  of this  Act, or  in  accordance           with the provisions of this sub-section, after the           commencement of  this Act,  (whether or not a suit           for  the   eviction  of   the  tenant   has   been           instituted),  the   landlord  may   apply  to  the           prescribed  authority   for  his   eviction  under           Section 21, and thereupon the prescribed authority           shall order  the eviction  of the  tenant from the           building  under  tenancy,  and  it  shall  not  be           necessary for  the prescribed authority to satisfy           itself afresh as to the existence of any ground as           aforesaid, and such order shall be final and shall 846           not be open to appeal under Section 22:           Provided that  no application  under this  clause.           shall be maintainable on the basis of a permission           granted under Section 3 of the old Act, where such           permission became  final  more  than  three  years           before the commencement of the Act:           Provided further  that in  computing the period of           three years,  the time  during which the applicant           has been  prosecuting with due diligence any civil           proceeding whether in a court of first instance or           appeal or revision shall be excluded. In view  of the  aforesaid, we  are of  the opinion that the Prescribed Authority  was clearly  in error in upholding the objection of  the tenant  that as the previous suit had been filed by  the tenant on the basis of permission and the same had been  dismissed, the application under section 43(2)(rr) of the  Act 13 of 1972, was not maintainable. It was clearly erroneous contention. It would frustrate the very purpose of the express  provision of  section  43(2)(rr).  Finality  of order  in  judicial  proceeding  is  one  of  the  essential principles  which   the  scheme  of  the  administration  of justice,  must  strive  for.  See  in  this  connection  the observations of  D.K Soni  v. P.K.  Mukherjee & Ors., (Civil

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Appeal No. 6626/83 Judgment dated 27. 10. 1987).      It was  contended before  the High Court that no appeal lay from  the decision  of the  Prescribed Authority  to the District Judge. The High Court accepted this contention. The High Court finally held that though no appeal lay before the District Judge,  the order  of the  Prescribed Authority was invalid and  was rightly set aside by the District Judge. On that ground  the High  Court declined  to interfere with the order of  the learned  District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before  the  learned  District  Judge,  in  the appeal before  the learned  District Judge, the order of the Prescribed Authority  could not  be set  aside. But the High Court was  exercising its  jurisdiction under Article 226 of the Constitution.  The High Court had come to the conclusion that the  order of  the Prescribed Authority was invalid and improper. The  High Court  itself could  have set  it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant  had a  point that  the order  of the District Judge was illegal and improper. If we reiterate the order of 847 the High  Court as  it is  setting aside  the order  of  the Prescribed Authority  in exercise  of the jurisdiction under Article 226  of the  Constitution then  no exception  can be taken. As  mentioned hereinbefore, justice has been done and as the  improper order  of the Prescribed Authority has been set aside, on objection can be taken.      In the  premises there  is no  scope  for  interference under Article  136 of  the Constitution.  Our attention  was drawn to  certain observations of this Court about the power of the  State Government under section 7-F of the old Act in Shri Bhagwan  and Anr.  v. Ram Chand and Anr., [ 1965] 3 SCR 218. In  the view,  we have taken of the facts of this case, it is  not necessary  to deal  with  this  decision  in  any detail.      In the  aforesaid view  of the matter, this appeal must fail  and   is  accordingly  dismissed.  In  the  facts  and circumstances of  the case,  we however, make no order as to costs. P.S.S.                                     Appeal dismissed. 848