MEWA LAL Vs. MAHADEO JI BIRAJMAN MANDIR

JUDGEMENT

(1.) This is a second appeal by a defendant against whom a suit for ejectment from a house has been decreed in favour of the plaintiff respondent. In the trial Court as well as in the lower court this appeal was contested by the defendant-appellant on the ground that ejectment has not been sought on one of the grounds mentioned in Section 3 of the U.P. Temporary Control of Rent and Eviction Act, 1947, and consequently under Section 3 of that Act the suit was not maintainable. The lower appellate court decreed the suit, holding that, because it bad been filed with the permission of the District Magistrate, it was not necessary that ejectment should be sought on one of the grounds mentioned in Section 3 and, therefore, the suit was competent. In this second "appeal, this view taken by the lower appellate court was challenged but obviously without any force at all. Section 3 of the Act' permitted institution of suits on grounds other than those mentioned in that section if the suit was instituted with the permission of the District Magistrate. This interpretation of Section 3 was clarified by Section 10 of the U.P. Temporary Control of Bent and Eviction (Amendment) Act, 1948 (Act XLIV of 1948). After the enactment of this section there can be no further dispute about this interpretation. The ground on which this appeal Was filed in this court has, therefore, no force.

(2.) Daring the course of arguments in this appeal the learned counsel for the appellant raised a fresh ground, viz. that no decree for ejectment should be passed in this suit because of Section l5 of the U P. Temporary Control of Rent and Eviction' Act, 1947. This ground was not taken in the 'trial court or in the lower appellate court nor was it mentioned in the grounds of appeal but I have allowed it to be raised in arguments as it is a pure question of law. It does appear that, in the present suit, no decree for eviction can be passed because of Section 15 of the Act as Section 15 directs that pending suits are not to be decreed except on one or more of the grounds mentioned in Section 3. In respect of new suits Section 3 makes a provision for institution of suits with the permission of the District Magistrate even in the absence of the existence of any of the grounds mentioned in that section. Section 15 does not, however, permit decrees for eviction to be passed on any other grounds except those mentioned in Section 3 even after the permission of the District Magistrate had been obtained. It is clear that in the case of suits which were pending when this Act came into force, viz. October 1,1946, the provision is more strict and it has been laid down that pending suits are not to be decreed except on one or more of the grounds mentioned in Section '3 irrespective of the fact whether or not the permission of the District Magistrate had been obtained before the institution of the suit. For this reason the suit of the respondent must fail.

(3.) The counsel for the respondent has made a request that he may be allowed to withdraw the suit with permission to file a new suit.. In view of the fact that this ground now taken for the first time in second appeal existed even While the suit was pending in the trial court and was not raised in that court or in the lower appellate court or even in the grounds of appeal in this Court, I consider it fair to permit the respondent to withdraw the suit, I also consider that, in the circumstances of this case, on account of the delay by the appellant in raising this ground of appeal, costs should be borne by the parties themselves.