RAM KUMAR Vs. BALDEO PRASAD

JUDGEMENT

(1.) THIS is a defendant tenants second appeal and arises out of a suit filed against him by the plaintiff-landlord on the basis of permission granted by the State Government under S. 7-F of the U.P. (Temporary) Control of Rent and Eviction Act (hereafter called the Act) for the ejectment of the appellant from a shop situate in the city of Bareilly. The District Magistrate refused to grant the permission under S. 3 of the Act and the landlords revision application before the Commissioner, Bareilly, failed. Thereafter he filed a revision application before the State Government which succeeded and the permission was granted. On the grant of the permission a writ petition was filed in this Court challenging the order of the State Government and the right of the plaintiff landlord to file a suit on its basis. That petition was dismissed by Bishambhar Dayal, J. and a special appeal against his decision was dismissed by a Division Bench of this Court consisting of Mukerji and Wanchandai JJ. On a reference by a learned Single Judge the second appeal came up for hearing before a Division Bench which referred the following two questions of law to this Full Bench :

(2.) WHETHER a decision, given by a Bench of this Court in a special appeal arising out of a petition under Art. 226 of the Constitution on the question whether the State Government does or does not have the power to grant permission to a landlord to sue a tenant for a ejectment operates as res judicata in a second appeal subsequently filed in this Court ? "The whole case is not before us and we are only called upon to answer the two questions referred to us. We will take the questions seriatim, (2) It has been contended by Mr. S.N. Misra, on behalf of the defendant-tenant, that S. 3(1) of the Act clearly provides that "no suit shall without the permission of the District Magistrate be filed in any Civil Court against a tenant for his eviction from any accommodation" and the effect of these words is that no permission can be granted either by the Commissioner or by the State Government and assuming that such a permission is wrongly granted by either of them the Civil Court cannot take notice of it and cannot entertain a suit on the basis of such a permission. It was submitted that all that the Commissioner and the State Government can do is to issue directions to the District Magistrate to grant the permission or revoke one already granted.

(3.) THE order of the Commissioner passed under Sub-S. (3) shall subject to any order passed by the-State Government under S. 7-F be final." At the same time S. 7-F was introduced in the Act. It reads :-