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PETITIONER: MOHD.  MAHMOOD AND ANOTHER

       Vs.

RESPONDENT: TIKAM DAS AND ANOTHER

DATE OF JUDGMENT: 04/05/1965

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. HIDAYATULLAH, M. RAMASWAMI, V.

CITATION:  1966 AIR  210            1966 SCR  (1) 128  CITATOR INFO :  D          1967 SC1196  (11)

ACT: Madhya  Pradesh Accommodation Control Act, 1951, ss.  15(3), 16(2),  45(1)  and 45(2)Sub-tenant claiming  direct  tenancy under    s.    16(2)Question    as    to    lawfulness    of sub-tenancy--Civil Court whether has jurisdiction to decide.

HEADNOTE: Respondent  No. 1 who was the landlord of the  accommodation in dispute obtained a decree of ejectment against respondent No.  2,  his tenant.  The appellants  who  were  sub-tenants under  respondent No. 2 gave a notice to the landlord  under s. 15(2) of the Madhya Pradesh Accommodation Control  Order, 1961,  and  thereafter filed a suit against him  claiming  a declaration  that being lawful sub-tenants they  had  become direct  tenants of the landlord under s, 16(2) of  the  Act. The High Court held that the suit was barred by s. 45(1)  of the  Act according to which no civil court could  enter-Lain any suit or proceeding in so far as it related to any matter which  the  Rent  Controlling Authority under  the  Act  was empowered to decide.  In appeal to the Supreme Court. HELD  :  (1) For s. 16(2) to come into  operation  the  sub- tenancy  has to be lawful.  The question of lawfulness of  a sub-tenancy   was  one  which  under  s.  15(3),  the   Rent Controlling  Authority  was empowered to decide.   Under  s. 45(1)  of the Act no civil court could entertain a  suit  or proceeding    which  the  Rent  Controlling  Authority   was empowered to decide.  ’Me High Court was therefore right  in holding that the suit had been filed in a court  incompetent to try it and in dismissing it. [13OH-131B] (ii)There  is  nothing in s. 15(3) of the Act  to  indicate that  it  does  not apply to a case where  a,  landlord  has already obtained a decree against a tenant.  If in spite  of the  decree  the appellants had a right under the Act  to  a direct tenancy under the landlord, they had a right to  move the Rent Controlling Authority within the prescribed  period for  a decision of the question that the subletting to  them was lawful.  If the Rent Controlling Authority had the power to  decide  that  question,  a  civil  court  would  not  be competent  to  decide the dispute in a suit  brought  within

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that  period.   The suit by the appellants  had  been  filed within that period. [131G-132B] (iii)The  fact that the landlord had not applied  under s.  15(3)  did  not  affect the issue  as  it  was  for  the appellants  as sub-tenants to prove that the sub-letting  to them was lawful., [132C] (iv)Section  45(2) also did not help the appellants.   That provision  was clearly intended only to protect a  right  to resort to a civil court for the decision of a question as to an  interest  in  property  existing  apart  from  the   Act concerning which an adjudication may have been  incidentally made by a Rent Controlling Authority in deciding a  question which  it had been empowered by the Act to decide.  It  does not  authorise a civil court to decide a dispute as  to  the lawfulness of sub-letting for the purpose of s. 16(2).  [133 C-E] 129

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 356 of 1965. Appeal  by special leave from the judgment and decree  dated October 27, 1964, of the Madhya Pradesh High Court in Second Appeal No. 240 of 1964. B.   Sen and M. S. Gupta, for the appellants. S.   T. Desai and A. G. Ratnaparkhi, for the respondents. The Judgment of the Court was delivered by Sarkar,  J.  The first respondent Tikam Das had  let  out  a house in the city of Jabalpur to the second respondent Surya Kant Naidoo.  Sometime in 1961 Tikam Das, herein referred to as  the  landlord,  served a notice on  Surya  Kant,  herein referred to as the tenant, terminating the tenancy and later in  the same year filed a suit in a civil court against  the latter  for  ejectment.   On June 23, 1962,  by  consent  of parties,  a decree for ejectment was passed in that suit  in favour  of the landlord against the tenant.  The  appellants who  were  occupying the premises as sub-tenants  under  the tenant had not been made parties to the suit. On  June 25 and 26, 1962, the appellants served  notices  on the  landlord under s. 15(2) of the Madhya Pradesh  Accommo- dation Control Act, 1961 which had come into force on Decem- ber  30, 1961, claiming that as the tenant had  sub-let  the premises to them before the Act had come into force with the consent of the landlord, they had become his direct  tenants under  s.  16(2)  of  the Act and  on  June  28,  1962,  the appellants  filed a suit against both the landlord  and  the tenant in a civil court claiming a declaration that they had in  the circumstances become direct tenants of the  premises under  the landlord.  On June 30, 1962, the landlord sent  a reply  to  the notices sent by the appellants  in  which  he denied that the sub-letting by the tenant had been with  his consent or was lawful.  It does not appear that the landlord had put his decree in execution for evicting the appellants. One of the points canvassed in the High Court was whether in view  of s. 45(1) of the Act a civil court was competent  to entertain  the appellants’ suit and it held that it was  not and  in  that view of the matter dismissed  the  suit.   The question is whet-her the High Court was right. The   Act  established  certain  authorities   called   Rent Controlling  Authorities  and  gave  them  power  to  decide various matters.  Sub- 130 ,section  (1)  of s. 45 states that "no  civil  court  shall entertain   any  suit  or  proceeding  in  so  far   as   it

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relates......   to  any..........  matter  which  the   Rent Controlling Authority is empowered by ,or under this Act  to decide".  If, therefore, the suit related to a matter  which a Rent Controlling Authority had jurisdiction to decide, the civil court would have no jurisdiction to entertain it. Now  the  appellant’s suit was for a declaration  that  they had  .become direct tenants under the landlord by virtue  of s. 16(2) of the Act.  That provision is in these terms S. 16. (1)               (2)   Where,  before the commencement of  this               Act,  the interest of a tenant in  respect  of               any accommodation has been determined  without               determining the interest of any sub-tenant  to               whom  the accommodation either in whole or  in               part had been lawfully sub-let, the  subtenant               shall,  with  effect  from  the  date  of  the               commencement  of  this Act be deemed  to  have               become  a  tenant holding directly  under  the               landlord  on the same terms and conditions  on               which  the  tenant would have  held  from  the               landlord, if the tenancy had continued. Clearly the appellants would not be entitled to the  benefit of this provision unless the sub-letting to them was lawful. This  is where their difficulty arises.  Sub-section (2)  of s.  15 deals with the case of a sub-letting before  the  Act and provides for a notice of the sub-letting being given  to the landlord by the tenant and the sub-tenant.  There is  no dispute  that the sub-letting to the appellants  was  before the  Act  and they had given the  notice.   The  subletting, therefore,  comes within sub-s. (2) of s. 15.  Then we  come to  sub-s. (3) of s. 15 which provides, "Where in  any  case mentioned in sub-section (2), the landlord contests that the accommodation was not lawfully sub-let and an application is made  to  the  Rent Controlling Authority  in  this  behalf, either  by  the landlord or by the  sub-tenant,  within  two months  of  the date of the receipt of the  notice  of  sub- letting  by the landlord or the issue of the notice  by  the tenant  or  the  sub-tenant, as the case may  be,  the  Rent Controlling  Authority shall decide the dispute." This  sub- section  empowers  a Rent Controlling  Authority  to  decide whether a sub-letting was lawful where the landlord disputes that the subletting was lawful, on an application made to it by either party within the period mentioned.  When the  Rent Controlling  Authorities  have  the  power  to  decide   the lawfulness  of  the  subletting, a civil  court  is  plainly debarred  from deciding that question by s. 45(1).   In  the present case the landlord did contend 131 that the sub-letting was not lawful.  The appellants’s  suit was  filed within the period mentioned in sub-s. (3)  of  s. 15.   So the Rent Controlling Authorities had the  power  to decide the question on which the appellants’ suit  depended. It follows that the suit related to a matter which the  Rent Controlling  Authorities  had power to decide and  no  civil court  was, therefore, competent to entertain it.  Hence  we think  that  the High Court was right in deciding  that  the suit had been filed in a court incompetent to entertain  it, and in dismissing it. It was said that a Rent Controlling Authority would have  no power  to decide a dispute as to whether a  sub-letting  was lawful  where the notice mentioned in s. 15(2) had not  been served,  orafter the period mentioned in sub-s. (3) of  that section  had  expired  if it had  not  been  moved  earlier. Another question mooted was that the two months mentioned in sub-s. (3) only provided a special period of limitation  for

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the  application  mentioned in it and the provision  of  the period  did not mean that a Rent Controlling  Authority  had power  to decide the matter only if an application had  been made within that period, so that if no such application  had been  made,  after the expiry of the period  a  civil  court would have jurisdiction to decide a dispute as to whether  a sub-letting  was lawful.  The point is that the real  effect of  s.  15(3)  was  to  deprive  the  civil  court  of   the jurisdiction to decide that dispute for all time.  We do not feel  called  upon to decide these questions.  They  do  not arise  in  the present case and it was not said  that  these questions affect the question of the competence of the civil court  to try the present suit.  They clearly do  not.   The suit was filed within the period of two months during  which admittedly the Rent Controlling Authorities had jurisdiction to  decide the dispute on which it was based.  Whatever  may be the jurisdiction of a civil court on other facts, in  the present case it clearly had no jurisdiction to entertain the appellants’ suit. It was said on behalf of the appellants that s. 15(3) had no application  to the present case as the landlord had  before the  appellants’ suit was filed, obtained a  decree  against the  tenant  for  eviction.  We are unable  to  accept  this contention.   There  is nothing in sub-s. (3) of  s.  15  to indicate  that it does not apply to a case where a  landlord has  obtained such a decree.  If in spite of the decree  the appellants  had  a right under the Act to a  direct  tenancy under  the  landlord,  they had a right  to  move  the  Rent Controlling  Authority  within  the  period  mentioned  (now expired) for a decision of the question that the sub-letting to them 132 was lawful.  If the Rent Controlling Authority had the power to  decide  that  question,  a  civil  court  would  not  be competent  to  decide the dispute in a suit  brought  within that  period.  So the decree does not make a civil court,  a court competent to entertain the suit. It was also said that as the landlord had not applied  under sub-s.  (3)  of  s.  15-and this  is  not  disputed  by  the landlord  that provision is put out of the way and  it  must now  be held that the appellants had become  direct  tenants under him.  The words of the sub-section lend no support  to this  contention.   The  appellants  can  claim  the  direct tenancy  only  when they establish that the  sub-letting  to them  was  lawful.   As they claim  that  right,  they  must establish  it  and they do not do so by the failure  of  the landlord to move for a decision that the sub-letting was not lawful.  This contention of the appellants seems to us to be untenable.   In any case it is difficult to  appreciate  how the  failure of the landlord to apply under s.  15(3)  would affect  the question of the competence of a civil  court  to entertain  the appellants’ suit which had been filed  before the  time  limited by the sub-section for  the  landlord  to apply to a Rent Controlling Authority had expired. We  now come to sub-s. (2) of s. 45 of the Act which  is  in these terms :               S.45. (1)               (2)Nothing  in  sub-section  (1)  shall  be               construed  as  preventing a civil  court  from               entertaining  any suit or proceeding  for  the               decision  of  any  question of  title  to  any               accommodation to which this Act applies or any               question  as to the person or persons who  are               entitled   to   receive  the  rent   of   such               accommodation.

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It  is  said  by the appellants that  their  suit  raises  a question  of  title  to the  tenanted  premises  within  the meaning  of  that  word as used  in  the  subsection.   This contention  does  not  seem  to  us  to  be  well   founded. "Accommodation"  has been defined in the Act as a  building, garden, ground, out-house, or garage appurtenant to it,  its fixtures and furniture supplied for use there and also  land not  used  for agricultural purpose.  The  word,  therefore, refers  to property of certain varieties and in our  opinion the  words "title to any accommodation" in  the  sub-section mean  a right to or interest in property existing  otherwise than under the Act and not those created by it.  It does not include a subtenant’s right created by the Act to be treated under certain cir- 133. cumstances as the direct tenant of the landlord.  This seems to,  us to be clear from the whole scheme of the Act,  which is  to  create certain rights and to leave them  in  certain cases  to  be  decided by  the  Rent  Controlling  Authority established  under it, quickly, inexpensively and  summarily and  with restricted rights of appeal from  their  decision. The  object of the Act as disclosed by its scheme  would  be defeated if civil courts were to adjudicate upon the  rights which it was intended the Rent Controlling Authorities would decide, with all the consequent delay, expense and series of appeals.  Again if the civil courts had the power to  decide such  rights,  s.  15  (3) would  be  meaningless,  for  the decision of the dispute as to whether sub-letting was lawful was necessary only for establishing a sub-tenant’s right  to a  direct tenancy under the landlord under s. 16 (2).   Sub- section (2) of s. 45 was clearly intended only to protect  a right  to  resort  to a civil court for the  decision  of  a question  as to an interest in property existing apart  from the  Act  concerning  which an adjudication  may  have  been incidentally  made  by  a  Rent  Controlling  Authority   in deciding a question which it had been expressly empowered by the Act to decide.  We, therefore, think that sub-s. (2)  of s. 45 does not authorise a civil court to decide the dispute as  to  the  lawfulness  of the  sub-letting  and  does  not therefore  make  it competent to entertain  the  appellants’ suit. For  these  reasons,  in  our  view,  no  civil  court   had jurisdiction to try the appellants’ suit and it was  rightly dismissed  as having been filed in an incompetent  tribunal. The  result is that the appeal fails and is  dismissed  with costs. Appeal dismissed. 134