KISHORI SHARAN Vs. II ADDITIONAL DISTRICT JUDGE JHANSI

JUDGEMENT

(1.) Aggrieved against acceptance of judgment debtor's objection in revision that decree for arrears of rent and eviction dated 19th December, 1972 was without jurisdiction as even after enforcement of Act 37 of 1972 the suit filed in the court of Munsif was decided by him and not Small Causes Court, decree holder has filed this petition.

(2.) It is not disputed that suit filed on 24-4-67, in the court of Munsif, was transferred on 3-1-69 to I Additional Munsif who after enforcement of Act 37 of 1972 on 16th September, 1972 decreed it on 19th December, 1972. The order was maintained in appeal and second appeal. And special leave petition is pending in Supreme Court. It is further not disputed nor can be disputed that after enforcement of Act 37 of 1972 suit for possession by lessor after determination of lease and recovery of amount for use and occupation could be instituted in Small Causes Court only. In respect of suits pending that is instituted prior to 16th September, 1972 it was provided by Section 9 of the Act that such suit shall also stand transferred unless the recording of oral evidence had commenced. Expression 'instituted before the date of commencement of this Act' and pending in that court immediately before the said date; not being a suit on which the recording of oral evidence or any part has commenced or concluded came up for consideration in K.K. Saxena v. S.N. Misra,1975 AWC 420. It was held that it did not apply to a transferee court. That is a court other than the court in which the suit was instituted. For instance in this case the suit was instituted in the court of Munsif. But it was subsequently transferred to Ist Additional Munsif. Therefore the provision of Act 37 did not apply. The Legislature however did not accept this interpretation and retrospectively amended the provision of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Amending Act, 1976. Sub-Section (6) of Section 26 reads as under:

(3.) Effect of this provision was that Section 9 of Act 37 of 1972 became applicable to suits transferred to a court other than in which it was instituted. But in order to avoid nullifying those suits which had already been decided the proviso carved out an exception. What however persuaded the revising court to allow objection of opposite party is the unhappy use of expression in the proviso 'on the assumption that the said Section 9 did not apply to such suits'. What was intended to be achieved by it is not clear. How will this be established that jurisdiction was assumed as Section 9 did not apply. Who will prove it, the party to the litigation or the court. In a case where objection to jurisdiction was taken but overruled probably no difficulty may arise. But what about other cases. A court shall not exercise jurisdiction unless it assumed that Section 9 did not apply. It is a rare piece of legislation which requires impossible to be proved. Intention of Sub-section (6) being to confer finality on decisions rendered after enforcement of Act 37 of 1972 and before enactment of Amending Act 1976 the proviso has to be construed in that light. It should not be understood as frustrating the main objective. A court shall not decide a case knowing that it had no jurisdiction. The expression in fact is redundant and is capable of creating uncertainty and encouraging unnecessary litigation. To achieve the legislative objective it has to be construed liberally. Therefore even in those cases where no objection was taken it has to be inferred as a matter of law that the decree was passed by a transferee court on assumption that Section 9 did not apply. If the assumption contemplated in the proviso is to be established as a fact it would become impossible. For the court will not appear to state that it had assumed jurisdiction because it thought Section 9 did not apply. In either view of the matter the order allowing objection under Section 47 cannot be maintained.