MAHADEO SUBHANJI ADEKAR Vs. AKAJI UNDERSA UMATHE

JUDGEMENT

(1.) THIS appeal, which arises out of execution proceedings, has raised a somewhat ticklish point of law. The respondent Akaji Umathe had filed a suit against the appellant in Civil Suit No. 291 of 1959 for eviction and arrears of rent. The suit was instituted on 5 -9 -1959. Prior to the filing of the suit, he had obtained the permission of the appellate authority in rent control proceedings for terminating the tenancy of the defendant. The application to the Rent Controller was made under clause 133 I, ii, iv, vii and ix of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, that is to say, on the grounds that the tenant had failed to pay rent and was in arrears for a period of three months, that he was a habitual defaulter, that the premises were used for purposes other than the one for which it was leased and that the landlord required the premises for essential repairs and also on the ground that the tenant was causing nuisance. The Rent Controller dismissed the application, holding that the tenant was not in arrears, that he was not a habitual defaulter and that the premises did not require any repairs at all as the house was in good condition. He also held that the landlord failed to prove the illegal acts alleged to have been committed by the tenant. the plaintiff went in appeal and the Deputy Commissioner concurred with the findings of the Rent Controller on all the points except the requirement of the premises by the landlord for the purpose of effecting repairs. He, therefore, granted permission to the landlord to serve a quit notice under clause 133 vii of the Rent Control Order. The defendant filed Special Civil Application No., 236 of 1959 on 15 -7 -1959 challenging the correctness of the order passed by the Deputy Commissioner in the aforesaid proceedings. In the meantime, the plaintiff filed the suit on 5 -9 -1959 after serving notice to the tenant to quit the premises on the basis of the permission granted by the Deputy Commissioner. The defendant made an application on 5 -10 -1959 requesting the trial Court to stay the proceedings in the suit pending decision of the Special Civil Application No. 236 of 1959 by the High Court. This application was rejected. The trial Court observed that it was open to the defendant to move the High Court for obtaining the stay order. The trial Court also remarked that it was open to the defendant to move the Court by another application for staying the execution of the decree, if and when passed against him. The defendants made a second application on 20 -11 -1959 for the same relief, which application also was rejected. Eventually on 28 -11 -1959 the trial Court passed a decree for eviction and arrears of rent against the defendant. The defendant made an application to the High Court requesting that the execution of the decree should be stayed. After hearing both the parties, the High Court issued an order staying the execution of the decree. The special civil application was heard by the Division Bench comprising Mr. Justice Tambe and Mr. Justice Patwardhan, on 20 -1 -1960. The application was allowed and the order of the Deputy Commissioner granting permission to the plaintiff to terminate the tenancy was quashed. It may be mentioned that the decree passed in Civil Suit No. 291 of 1959 allowed the defendant time till 31 -12 -1959 for vacating the premises. The order of the High Court for staying the execution proceedings had come into operation on 29 -12 -1959, that is to say, two days prior to the date fixed in the decree for vacating possession by the defendant.

(2.) THE plaintiff started execution proceedings on the basis of the decree in Civil Suit No. 291 of 1959 for recovery of possession of the suit premises. The defendant appeared and resisted the proceedings on the ground that the basis on which the suit for eviction was lodged, was knocked out as a result of the order passed by the High Court in Special Civil Application No. 236 of 1959 with the result that the decree passed became a nullity and, in any case, unenforceable and unexecutable. This contention was overruled by the Courts below mainly on the ground that the question could not be raised in the executing Court which could not go behind the decree passed. That is why the defendant has come up in second appeal to this Court.

(3.) AS stated above, the Rent Controller had rejected the application. The Deputy Commissioner, on appeal, agreed with the findings arrived at by the Rent Controller on all the points except repairs. The Deputy Commissioner though it fit to grant permission to the landlord on the ground that he required the premises for changing the frontage of the house. The validity of this order was challenged in the special civil application and the High Court came to the conclusion that the Deputy commissioner acted without jurisdiction in granting the permission which he was pleased to grand to the landlord under clause 133 vii of the Rent Control Order. The High Court pointed out that the clause contemplated the termination of tenancy only on the ground that the landlord made out a case of essential repairs or alterations which could not be made without the tenant vacating the premises. They also pointed out that the ground on which the appeal was allowed by the Deputy Commissioner did not fall within the ambit of cl.13 3 vii of the said Order. Accordingly they dismissed the landlord's application for permission to serve a quit notice on the tenant. Now, the very basis of the suit for eviction is that the tenancy is determined. No notice determining the tenancy could be issued without obtaining the permission of the Rent Controller and the Rent Controller can grant such permission on the ground specified in the various clauses, to which a reference has already been made. The permission granted by the Deputy Commissioner in appeal has been set aside by the High Court. The result is that the parties are relegated to the former position, namely, that the tenancy had not been determined. if the tenancy is subsisting, no suit for eviction could be maintained. The result, therefore, is that the suit for eviction was not only premature but the decree passed in Civil Suit No.291 of 1959 was without jurisdiction. It is settled law that the contention such as that the decree is without jurisdiction, or is a nullity is incapable of enforcement in execution, is always open to be taken and considered in execution proceedings. The lower Courts seemed to have ignored that, at the time when the decree was passed, the Deputy Commissioner's order granting permission to the plaintiff to terminate the tenancy was still valid. The decree, therefore, could not have been challenged in appeal on that ground. The order of the high Court setting aside the permission was passed on 20 -1 -1960, that is to say after the lapse of the period of limitation prescribed for preferring an appeal to the District Court, from the decree for eviction. It is, therefore, idle to contend that it was open to the plaintiff to challenge the decree in the appeal on the happening of the subsequent event, namely, the passing of the order of the High Court setting aside the permission granted by the Deputy Commissioner. The plaintiff, for all practical purposes, had no remedy whatsoever except to appear before the executing Court and contend that the decree had become inexecutable as a result of the order of the High Court passed in Special Civil Application No.236 of 1959. In fairness it must be conceded that the defendant did make an honest endeavour to avoid the complications by getting the suit stayed pending the decision of the Special Civil Application No. 236 of 1959 which was filed prior to the institution of the suit. Although, therefore, S. 10 of the Code of Civil Procedure did not, in terms, apply to the application made, still the principle underlying S. 10 could have been extended to the application for stay of the suit. Unfortunately that was not done and the suit proceeded to the stage of decree. Actually the trial Court observed that no harm could ensue if the suit was allowed to proceed to the stage of the decree. Whatever that may be, the anomaly arising out of the passing of the decree on the basis of a suit the cause of action in which has abated, must be avoided at all cost. I, therefore, feel no hesitation in holding that the decree in Civil Suit No. 291 of 1959 has become void and unenforceable by reason of the order passed by the High Court in Special Civil Application No. 236 of 1959.