JAGANNATH PRASAD Vs. FATEHUDDIN

JUDGEMENT

(1.) JUDGEMENT DESAI, J. This is an application under Section 115 of the Code of Civil Procedure for revision of an order passed by a Munsif dismissing toe applicants application under Section 7-B of the U.P. (Temporary) Control of Rent and Eviction Act. The applicant is the landlord of an accommodation which he had Jet to the opposite party. On 4-4-1961 the applicant made an application in the Court of the learned Munsif under Section 7-B stating that he is the owner of the accommodation, that the opposite party is his tenant on Rs. 10/- per month as rent and has not paid the rent for 14 months ending on 31-3-1961 and that the cause of action for the application accrued in his favour on 1-6-1960 within the learned Munsifs jurisdiction and praying that the opposite party be ejected. Section 7-B reads as follows :

(2.) IT will be seen that the application made by the applicant contained all the particulars required by Sub-Section (2)(a) of Section 7-B. It was also verified, though not exactly as required by the Code of Civil Procedure. However, the defect in the verification has not been noticed by the learned Munsif and has not been made a ground for dismissal, of the application. The defect is also of a trivial nature and has not caused any prejudice to the tenant. He did not bring it to the notice of the learned Munsif while the proceeding was pending before him; otherwise it would have been removed by the applicant. The applicant did not state in the application that the opposite party was in occupation of the accommodation in pursuance of an order made under Section 7(2), i.e., in pursuance of, what is known popularly as, an"allotment order", but he was also not required to state this fact in the application. The application was in order; (barring the unimportant defect in the verification) and the learned Munsif was bound by Sub-Section (3) to issue notice to the opposite party asking him to pay the arrears or to show cause. He was required to do so"without unnecessary delay" and was not required to do anything before serving the notice; it follows that he was not required to inquire into either the correctness of the particulars mentioned if the application or the question whether the opposite party was in occupation of the accommodation under an allotment order or not. If an application itself mentions either that the tenant was not in possession of the accommodation under an allotment order, or that he was in arrears of rent for a period less than three months, or that he himself was not the landlord, or the other party was not the tenant, it can be dismissed by the Munsif because on its face it is not an application governed by Section 7-B. The condition precedent for his serving upon the opposite party a notice is that the application was made under Sub-Section (1) and if it itself does not purport to have been made under Sub-Section (1) and states facts showing that it could not be under Sub-Section (1), he would not be obliged to proceed under Sub-Section (3). The facts here, however, were that the application of the applicant purported to be under Sub-Section (1) and contained nothing showing that it could not be under Sub-Section (1) and the learned Munsif was bound by Sub-Section (3) to serve upon the opposite party a notice. He did so and called upon him to pay the arrears of Rs. 140/- or to show cause within fifteen days of the service of the notice. The notice was served upon the opposite party on 8-5-61 and the period of fifteen days expired on 23-5-1961, The opposite party did not pay the! arrears, and did not appear and the any objection before this date and the learned Munsif was bound by Sub-Section (5) to make an order directing that he be evicted from the accommodation and pay the costs of the application. He had no option but to do so; there was no question whatsoever of his considering the application on merits. The law enjoined upon him to pass an order of eviction of the opposite party because of his failure to pay the arrears and file an objection within the time allowed. He had no jurisdiction to extend the time; to extend the time would have meant his defying the provision contained in Sub-Section (5). still he failed to pass the order as required by Sub-Section (5). On 3-6-1961 when he took up the case the opposite party appeared and filed an objection denying that he was in occupation of the accommodation under an allotment order and contending that the applicants application was not maintainable under Section 7-B. He did not deposit in Court the amount of Rs. 140A mentioned in the notice nor furnished security to the satisfaction of the learned Munsif. Notwithstanding these facts the learned Munsif entertained the objection and proceeded to dispose of it. The applicant protested against the entertainment of the opposite partys objection and the learned Munsif heard the parties on 15-7-1961 and on 27-7-61 passed the impugned order dismissing the application of the applicant.

(3.) WE have reproduced the relevant provisions, from which it is clear that the learned Munsif acted without jurisdiction in (1) not passing an order for the opposite partys eviction as required by Sub-Section (5) of S. 7-B on, or immediately after, 23-5-1961 and (2) entertaining the opposite partys objection even though it was barred by time and he had not deposited the amount of the arrears or furnished security. The proviso to Sub-Section (7) lays down a condition precedent for the entertainment of an objection other than only an objection as to costs of the proceedings. The proviso in its very nature is mandatory and the objection of the opposite party did not relate to the costs of the proceedings at all. The learned Munsif had, therefore, no option but to refuse to entertain it. No discretion was given to him to entertain it on the ground that it related to a particular ground. Sub-Section (7) divides all possible objections that can toe filed by a tenant into only two classes (1) of objections relating to the costs of the proceedings and (2) of all other objections. There is no further division of"all other objections" into two (or more) classes depending upon their nature, such as one of objections which go to the root of the Munsifs jurisdiction or are fatal to the maintainability or the application of the landlord under Section 7-B and other of remaining objections. Regardless of its nature, an objection cannot be entertained unless the condition precedent, viz., the deposit of the arrears mentioned in the notice or furnishing of security hag been fulfilled. Here it was not fulfilled and the learned Munsif acted without jurisdiction in entertaining the objection and allowing it.