MGURUMURTHAPPA Vs. MCHICKMUNISAMAPPA

JUDGEMENT

(1.) This Miscellaneous Appeal is against an order of remand matte by the Subordinate Judge of Bangalore in R. A. 129 of 48-49 bv which he set aside the order of the First Munsiff of Bangalore dismissing an application I. A. II in Ex. Case No. 195 of 48-49. The facts relating to this application are as follows:

(2.) The appellant, the landord, applied to the House Rent Controller, Bangalore and obtained an order of eviction against the respondent, the tenant, in H. R. C. Case No. 820 of 45-46 on 22-11-46. That order was finally affirmed by the Government by an order dated 20-10-47. Thereafter the appellant applied for the execution of that order and in Ex. Case 195 of 48-49 on the file of the First Munsiff of Bangalore, he was duly put in possession of the premises concerned in this case on 31-10-1948. The respondent then filed his present application I. A. II on 8-11-48 under Ss. 47 and 151, C. P. C. for restitution or redelivery back to him o the premises on the ground that the orders passed by the H. R. C. and Government were passed without their having any jurisdiction so to do. According to him the original lease in his favour was only at a vacant piece of land on which he had himself put up a structure in accordance with the terms of an agreement which provided for the site as well as the superstructure being delivered back to the landlord after the termination of the lease only on certain terms; that the House Rent Controller could only deal with cases of houses which were let and not such cases of vacant sites which really had to go before the ordinary Civil Courts in the usual way. Moreover, no sufficient or proper notice to quit in accordance with the provisions of Section 111 (h), Transfer of Property Act had been given by the landlord. As the tenancy had not therefore been properly terminated the House Rent Controller had no jurisdiction to order eviction. The landlord opposed his application as not maintainable. The executing Court could not have questioned the legality of the order which had been passed by the House Rent Controller and having allowed execution to proceed and the property having been delivered to the landlord in accordance with that order there was nothing more for the executing Court to do and there was no power in such cases to order restitution. There was also no lack of jurisdiction on the part of the House Rent Controller or the Government on the grounds pleaded by the Respondent.

(3.) The learned Munsiff dismissed I. A. II. He held that a proper notice to quit had not been given and that the premises when they were let were a vacant site to which the provisions of the House Rent Control Order had no application. But he held that he could not however order restitution relying on a case reported in -- 'Abdul Aaiz Khan v. Nanjundappa', 53 Mys H. C. R-298 (A). On apwal the learned Subordinate Judge disagreed with the Munsiff as regards the last point. He was of the opinion that the Court had jurisdiction to direct restitution in proper cases in view of some recent changes in the House Rent Control Order which made applicable the provisions of the C. P. C. to proceedings under that order. But as the Munsiff had not recorded any evidence before coming to conclusions as regards the nature of the property leased and its incidents and about the failure to give notice terminating the lease, he remanded the case to the Munsiff to take evidence and dispose of the application in accordance with law.