Pralhad
Lalchand Chavan Vs. Iqbal Hussain Inayat Hussain Badri [1996] INSC 865 (26 July 1996)
Agrawal, S.C. (J) Agrawal, S.C. (J) Nanavati G.T. (J) S.C. Agrawal
J.
CITATION:
1996 SCALE (5)618
ACT:
HEAD NOTE:
Special
leave granted.
This
appeal by the landlord arises out of a suit for eviction from premises governed
by the provisions of the Central Provinces and Berar Regulation of Letting of
Accommodation Act, 1946 Act, 1946 (hereinafter referred to as 'the Act') and
the Central provinces and Berar Letting of Houses and Rent Control Order, 1949
(hereinafter referred to as ' the Rent Control Order') The Rent Control Order
has been made in exercise of the power conferred by Section 2 of the Act which
empowers the State Government by general or special order to provide for
regulating the letting and sub-letting of any accommodation or class of
accommodation whether residential or non- residential. Clause (b) of Section 2
of the Act prescribes that such order may provide for preventing the prescribes
that such order may provide for preventing the eviction of tenants or
sub-tenants from such accommodation in specified circumstances. In clause 13 of
the Rent Control Order provision has been made for the protection of a tenants
against the eviction. The relevant parts of the said clause are reproduced below
:-
"13(1)
No landlord shall, except with the previous written permission of the Controller
:-
(a) give
notice to tenants determining the lease or determine the lease if the lease is
expressed to be determinable at his option ; or
(b) whether
the lease is determinable by efflux of the time limited thereby require the
tenant to vacate the house by process of law or otherwise if the tenant is
willing to continue the lease on the same terms and conditions.
(3)
If after hearing the parties the Controller is satisfied :- xxx xxx xxx xxx xxx
(iv) that the tenant has used the house or premisses or any part thereof for a
purpose other than that for which it was leased ; or xxx xxx xxx xxx xxx (vi)
that the landlord needs the house or a portion thereof for the purpose of his bonafide
residence, provided he is not occupying any other residential house of his own
in the city or town concerned; or xxx xxx xxx xxx xxx he shall grant the
landlord permission to give notice to determine the lease as required by
sub-clause (1)." On April
18, 1985 the appellant
submitted an application before the Rent Controller for grant of permission to
issue a notice terminating the lease of the respondent. The appellant sought
the permission on grounds (VI) and (VI) of sub-clause (3) of clause 13 of the
Rent Control Order. The said application of the appellant was rejected by the
Rent Controller by order dated December 29, 1987.
The appeal filed by the appellant against the said was allowed by the Rent
Control Appellate Authority by order dated December 13, 1988 and necessary
permission to issue notice terminating the lease was granted under ground (vi)
of sub-clause (3) of clause 13 of the Rent Control Order, i.e. the landlord
needs the house or a portion thereof for the purpose of his bonafide residence,
provided he is not occupying any other residential house of his own in the city
or town concerned, Feeling aggrieved by the order of the Rent Control Appellate
Authority dated December 16, 1988 the respondent moved the High Court of
Bombay, Nagpur Bench, Nagpur by filing Writ Petition No 1745 of 1989. The said
writ petition was dismissed by the learned single Judge of the High Court by
Judgment dated August
8, 1989. The petition
filed for review of the said judgment was dismissed by the learned single Judge
by order dated November
29, 1990. Thereafter,
the respondent filed a Letters Patent Appeal Against the Judgment of the
learned single Judge, which was dismissed by the Division Bench of the High
Court.
The
petition for special leave to appeal against the judgment of the Division Bench
was dismissed by this Court.
As a
result the Order granting permission by this Court. as result the order
granting permission under clause 13 of the Rent Control Order, to issue a
notice terminating the lease of the respondent, become final.
In the
meanwhile after passing of the order the Rent Control Appellate Authority dated
December 16, 1988 granting permission to issue a notice terminating the lease,
the appellant, on March 3, 1989, issued a notice under Section 106 of the
Transfer of Property Act terminating the lease of the respondent by the end of
April 1989 and asking him to hand over vacant possession of the premises on the
date of termination of the lease. Since the respondent failed to comply with
the said notice and did not deliver possession of the premises, the appellant,
on May 2, 1989, filed a suit (Civil Suit No. 100 of 1989) in the Court of Civil
Judge, Junior Division, Amravati for eviction of the respondent.
The
said suit of the appellant was decreed by the Civil Judge, by Judgment dated January 31, 1990 and the respondent was directed to
vacate the premises and hand over vacate possession to the appellant. The
appeal filed by the respondent against the said decree of the trial court was
dismissed by the district Judge, Amravati by Judgment dated March 24, 1994,
Thereafter, the respondent filed Civil Revision Application No 616 of 1994 in
the High Court which was allowed by the impugned Judgment dated July 18, 1994
on the view that which deciding the appeal the appellate court failed to
consider the subsequent events namely that during the pendency of the
litigation the appellant had purchased another house and had started residing
there and thereby the requirement of the appellant was fulfilled. According to
the High Court the landlord secured permission for his bona fide requirement,
but during the pendency of the litigation especially in the eviction
proceedings, subsequent events regarding the purchase of alternative
accommodation occurred and that this aspect has to be taken into consideration.
The High Court, therefore, while setting aside the Judgment of the Additional
District Judge with a direction to consider the subsequent events and adjudicate
the matter accordingly.
Feeling
aggrieved by the said judgment of the High Court the appellant has filed this
appeal.
Shri
V.A. Mohta, the learned senior counsel appearing for the appellant, has urged
that the scheme of the Rent Control Order is that the protection against
eviction that is available to the tenant under clause 13 of the Rent Control
Order whereby the landlord is required to obtain the permission of the Rent
Controller before issuing a notice terminating the tenancy and such permission
can be granted only on a ground mentioned in sub-clause (3) of clause (13 of
the Rent Control Order, Shri Mohta has submitted that the order of the Rent
Controller granting permission under clause 13 can be challenged before the
Rent Control Appellate Authority in appeal under sub-clause (3) 21 and that no
further appeal, revision or application for review lies from the decision of
the Rent Control Appellate Authority to any other authority whatsoever. Shri Mohata
has pointed out that under Section 7 of the Act the jurisdiction of civil
courts is barred in respect of any order passed by an officer or authority
under an order made under Section 2 the Act and, therefore, the order granting
permission under clause 13 of the Rent Control Order is not open to challenge
challenged by filing a writ petition under Article 226 of the Constitution
before the High Court, The respondent had available the said remedy under
Article 226 of the Constitution by filing a writ petition which petition was
dismissed by the learned single Judge and the said judgment of the learned
single judge was affirmed in Letters Patent Appeal by the Division Bench and
the petition filed for special leave to appeal against the said judgment was
also dismissed by this Court, As a result, the order granting permission under
clause 13(3)(vi) of the Rent Control Order became final and a party cannot be
permitted to go behind the order granting permission and to reagitate the
question whether the appellant is entitled to seek eviction of the respondent from
the premises of his bona fide residence, Shri Mohta has placed reliance on the
decision of the Division Bench of the High Court in R.P. Ghosh VS. Pramilabai Ravindra
Puri and Ors, 1976 Maharashtra Law Journal 828, and the
observation of this Court in Benilal (deed) by Lrs. vs. State of Maharashtra and Ors. 1995 Suppl.(1) SCC 235.
Shri
S. Balakrishnan, the learned counsel appearing for the respondent, has
submitted that grant of permission to the landlord to issued a notice
terminating the tenancy under clause 13(3) of the Rent Control Order does not
preclude the tenant from showing that in view of the subsequent events that
have occurred after the grant of such permission , the need of the landlord for
the premises no longer subsists and he is not entitled to seek eviction of the
tenant. Shri Balakrishnan has laid emphasis on the object underlying the
protection Against eviction given to the tenants under clause 13 of the Rent
Control Order and has submitted that to deny to the tenant and opportunity to relay
upon subsequent events occurring after the grant of permission would not be in
consonance with the decisions of this Court wherein subsequent events have been
taken note by this Court in the context of proceedings for eviction of the
tenant on the ground of bonafide need of the landlord.
A
perusal of the provisions contained in clause 13 of the Rent Control Order
shows that the nature of protection which has been conferred on the tenant
under the said clause differs from the protection given to the tenant under
other similar rent control laws in other States. In most of the rent control
laws in force protection against eviction is conferred on the tenant by
imposing the requirement that no decree for eviction shall be passed against
the tenant except on certain specified grounds or no suit for eviction by the
tenant would be filed except on certain specified grounds. Such laws envisage a
single judicial proceeding in which the landlord is required to make out a case
for eviction of the tenant on the basis of any one of the specified grounds and
the decree or order for eviction passed by the civil court or the Rent
Controller is subject to an appeal or revision and a further appeal or revision
in the High Court. The Rent Control Order, However, envisage to separate
proceedings. One is the proceeding before the Rent Controller under clause 13
of the Rent Control Order for grant of permission to issue a notice terminating
his tenancy which order is subject to appeal before the Rent Control Appellate
Authority and Judicial review by the High Court under Article 226 of the
Constitution. In the event of grant of permission to issue the notice
terminating the lease, the proceedings under clause 13 of the Rent Control
Order are followed by a second proceeding, viz., a suit for eviction after the
landlord has terminated the tenancy by issuing a notice in accordance with the
provisions of Section 106 the Transfer of Property Act. By clause 13 of the
Rent Control Order a bar is placed on the right of the landlord to terminate
the tenancy of tenant by requiring him to obtain the necessary permission in
that regard form the Rent controller and such permission can be granted only if
any of the grounds specified in sub-clause (3) of clause 13 is made out. In
other words under clause 13 that bar that is placed on the right of the
landlord to terminate the tenancy of the tenant is lifted when permission to
issue notice is granted and therefore the landlord can proceed to terminate the
tenancy in accordance with Section 106 of the transfer of property Act and in
the event of the tenant not vacating the premises after the termination of the
tenancy by such a notice, the landlord can seek the eviction of the tenant
filing a suit on the ground that the tenancy having been terminated under
Section 106 of the Transfer of Property Act the tenant has no right to remain
in occupation. In the said suit the validity of the order granting permissing
cannot be assailed by the tenant in view of the bar created by Section 7 of the
Act read with clause 21(3) of the Rent Control Order.
Shri Balakrishnan
does dispute that it is not open the respondent to assail the Correctness of
the Order granting permission under clause 13 of the Rent Control Order
granting permission under clause 13 of the Rent Control Order and that the
court dealing with the suit or appeal/revision is obliged to take to take into
account such subsequent event. In our view this contention cannot be accepted.
Having regard to the fact that the protection that is available under clause 13
of the Rent Control Order is confined to the first proceeding governing grant
of permission to issue a notice for terminating the tenancy and the tenant
having been found not entitled to such protection on account of grant of such
permission under clause 13 of the Rent Clause 13 of the Rent Control Order and
the said order having become final, it is not open to the tenant to reagitate
the said question in the subsequent proceeding, viz., the suit for eviction,
and invoke the protection available under clause 13 in the suit filed by the
landlord against the tenant after the tenancy has been terminated on the basis
of the permission granted under Clause 13 of the Rent Control Order. The Scope
of inquiry in the subsequent suit is limited to the scope of inquiry in the
subsequent suit is limited to the question whether permission to issue a notice
to terminate the tenancy has been granted under clause 13 of the Rent Control
Order and if so whether the tenancy has been validly terminated in accordance with
the provisions of Section 106 of the Transfer of Property Act and the tenant
has lost the right to remain in occupation of the premises let out him.
In
R.P. Ghosh v. Pramilabai Ravindra Puri and others (supra) a Division Bench of
the Bombay High Court has taken the same view. In that case permission had been
granted by the Rent Controller to serve a notice terminating the tenancy under
clause 13 of the Rent Control Order on the ground that the premises were
required by the landlord for his bona fide personal occupation and an appeal
against the said order had been dismissed by the appellate authority.
The
landlord had issued a notice to the tenant under Section 106 of the Transfer of
Property Act. Thereafter the original landlord died and his legal representatives
filed a suit for eviction. It was urged that since the ground on which
permission was granted was personal to the landlord and in view of the death of
the original landlord the cause of the action did not survive and the
permission granted by the Rent Controller stood exhausted with the death of the
original landlord and that it was obligatory on the part of the legal
permission had not been obtained from the Rent Controller by the legal
representatives of the deceased landlord, the suit was not maintainable. The
said contention was negatived by the Division Bench of the High Court. The High
Court held that once permission is granted under clause 13 of the Rent Control
Order by the Rent Controller, then the landlord is at liberty to serve notice
upon the tenant terminating his tenancy as per provisions of the Transfer of
Property Act and it is the Transfer of Property Act and it is the Transfer of
Property Act which then applied and the provisions of the Rent Control Order do
not come into play nor they could affect the question of notice to quit, its
requirement or its service etc. once a valid permission from the Rent
Controller is obtained. The learned Judges have said :
"The
Rent Control Order only provides that such a notice cannot be given unless a
written permission down any further condition as far as the quit notice under
Section 106 of the Transfer of Property Act is concerned. The filing of a suit
for ejectment is an independent action. The combined effect of this is that is
contemplates two distinct proceedings, one relating to granting of a written
permission by the Rent Controller provisions notice to determine the lease
under the provisions of the Rent Control Order and thereafter filing of a suit
for ejectment before a competent civil court after giving necessary notice
under Section 106 of the Transfer of Property Act.
The
Rent Controller of the authority constituted under the Rent Control Order has
no authority jurisdiction to eject a tenant or deliver possession of the
property to the landlord. This is the province of a civil Court. The filing of
the ejectment suit after giving a notice under Section 106 of the Transfer of
Property act is not the Continuation of the proceeding which is governed by the
Code of Civil Procedure and the Transfer of Property Act." [p. 832]
"Obviously exclusive jurisdiction is vested upon the Rent Control
authorities to decide the rights of the parties arising out of the Rent Control
Order. A decision of the Rent Controller in this behalf is binding upon a civil
Court and it is not open for the civil Court to go behind the said Order."
[p. 834] "Once it is held that the decision of the Rent Controller so far
as it relates to the matter within his exclusive jurisdiction is concerned, is
final and could not be challenged in the suit or in any collateral proceedings,
then, in our opinion, the same matter cannot be reopened in a civil suit
instituted by the land lord after obtaining a permission from the Rent
Controller. So far as a suit for ejectment is concerned, the cause of action is
not the ground on which the permission is granted by the Rent Controller, but
the termination of the tenancy of the tenant under the provisions of the
tenancy of the tenant under the provisions of the Transfer of Property Act. The
same gives of the Transfer of Property Act. The same gives an occasion for and
forms the foundation of the suit. So far as the ejectment suit concerned, the
grounds of ejectment are irrelevant. To such a suit the provisions of the Civil
Procedure Code and Transfer of Property Act will apply and not the provisions
of the Rent Control Order." [p. 835] We are in agreement with the said
view of the High Court. It appears that the said decision was not brought to
the notice of the learned judge who decided this matter.
This
Principle that subsequent events should be taken into account by the court
while passing a decree can have a limited application in a case like the
present one involving two independent proceedings. It would apply at the stage
of the firs proceeding relating to the grant of permission but would have no
application after the order passed in the first proceeding has attained
finality. Once the decree or order has become final the tenant is precluded
from saying that in view of subsequent events the need or requirement no more
existed, [See : Hasmat Rai & Anr. v. Reghunath Prasad, 1981 (3) SCR 605, at
p. 617; D.K. Soni v. P.K. Mukherjee and Others, 1988 (1) SCC 29, at [p.32] For
the reasons aforementioned, we are of the view that the High Court was in err
in holding that the lower appellate court was obliged to take into account the
subsequent events regarding the purchase of alternative accommodation by the
appellant and in setting aside the Judgment of the Additional District Judge
and remanding the matter for reconsideration to the said Court. Since, in our
opinion, it was not permissible in proceedings arising out a suit for eviction
to take into account the subsequent events having a bearing on order granting
permission under clause 13 of Rent Control Order on the ground of bonafide need
of the appellant, the said Judgment of the High Court cannot be upheld and has
to be set aside.
Before
we conclude we must say that the existing provisions under the Act and the Rent
Control Order relating to eviction of tenant requiring to proceedings - one for
grant of permission to issue the notice terminating the tenancy to be followed
by regular suit for eviction no only lead to multiplicity of proceedings but
also cause undue hardship to the parties. It is high time that the Legislature
gives a fresh look to the said provisions and brings the law in this field in
tune with other similar legislations applicable in other parts of the Country.
In the
result, the appeal is allowed, the judgment of the High Court dated July 18, 1994 is set aside and, while dismissing
the revision petition filed by the respondent, the Judgment and Order dated March 24, 1994 passed by the Additional District
Judge, Amravati is restored. In the facts and
circumstances of the case, there will be no order as to costs.
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