Mohd. Mahmood & ANR Vs. Tikam Das
& ANR  INSC 126 (4 May 1965)
04/05/1965 SARKAR, A.K.
CITATION: 1966 AIR 210 1966 SCR (1) 128
D 1967 SC1196 (11)
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.
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
HELD : (1) For s. 16(2) to come into
operation the subtenancy 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 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
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
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
On June 25 and 26, 1962, the appellants
served notices on the landlord under s. 15(2) of the Madhya Pradesh Accommodation
Control Act, 1961 which had come into force on December 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
The Act established certain authorities
called Rent Controlling Authorities and gave them power to decide various
matters. Sub130 ,section (1) of s. 45 states that "no civil court shall
entertain any suit or proceeding in so far as it 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 subletting 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 subsection 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’ 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, or after the period
mentioned in sub-s. (3) of that section had expired if it had not been moved
Another question mooted was that the two
months mentioned in sub-s. (3) only provided a special period of limitation for
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.
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
"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 circumstances
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). Subsection (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.