Deshraj Vs. Akhtar Hussain  INSC
149 (12 September 1960)
GUPTA, K.C. DAS WANCHOO, K.N.
SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L.
CITATION: 1961 AIR 148 1961 SCR (1) 665
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.
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
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.
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
Rameshwar Nath and S. N. Andley, for the
1960. September 12. The Judgment of the Court
was delivered by 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
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
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 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.