MOHAMMAD SWALLEH Vs. THIRD ADDITIONAL DISTRICT JUDGE MEERUT

JUDGEMENT

(1.) 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 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 Art. 136 of the Constitution by this Court. The appeal arises from the judgment and order dated 22nd Sept. 1978 of the High Court of Allahabad. The respondent No. 2 herein, Smt. Murtaza Begum filed an application under S. 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. S. 3 of the said Act provided that subject to any order passed under sub-sec. (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-sec. (2) of S. 3 provided for revision to the Commissioner against the order of the District Magistrate. Sub-sec. (3) of S. 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-sec. (4) of S. 3 the order of the Commissioner has been made final subject to any other order passed by the State Government under S. 7-F of the said Act. S. 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 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.

(2.) 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 1972 being U. P. Act No. 13 of 1972, hereinafter called the new Act, had been amended, he would file an application for the enforcement of the permission obtained under S. 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 S. 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 S. 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 S. 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 was 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, AIR 1958 All 774 where the Division Bench of that Court held that the obvious purpose of the permission under S. 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.

(3.) 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 S. 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 S. 43 (2) (rr) was added by U. P. Act No. 13 of 1972, and prior to the addition of S. 43(2)(rr) the relevant provision was made in U. P. Act No. 13 of 1972 in S. 43(2). 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. S. 43(2)(rr) of the new Act was again amended by the U. P. Act No. 28 of 1978. 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.