MANAKLAL CHATURBHUJ BAHETI Vs. PRABHAKUWARBAI

JUDGEMENT

(1.) THIS appeal is preferred by the original defendant, who. faced initially a civil action in the suit, for his ejectment, initiated by the landlady. . There is whatsoever no controversy with respect to the factual aspects of a notice of termination under the Transfer of Property Act, the suit later on being filed on the basis of that and the claiming for possession and ejectment of the tenant sought to be secured in the said suit. It appears that the Trial Court dismissed the suit on certain interpretation of the Rent Control order in relation to the part of the suit house being built later on or a portion being constructed on the open land and on such interpretation, which was broadly made, the suit was dismissed. The landlady, therefore, went in appeal and in the appeal, relying upon the decision of this Court in M. Sen Sharma v. Ambika Prasad Sharma, the Appellate Court came to the conclusion that since the suit premises came into existence after the 1st of january 1951, the need under the C. P. and berar Letting of Houses and Rent Control order, 1949, for securing permission beforeinitiating an action for eviction of a tenant, was not necessary. Undoubtedly, there Was a notification issued under the said Rent Control Order, which sought to make this distinction that the bar on filing a suit for ejectment of a tenant without obtaining prior permission of the Rent Controller, was- not to operate in respect. of constructions made after '1951'. Undoubtedly, there was some controversy whether in reality the premises came into existence before 1951 or after 1951 and whatever the construction that was made was or was not, on a vacant land, but that controversy now no more exists in view of the fact th'at this Court has taken certain view in the case of Prabhakar rokade v. The State of Maharashtra, due to which the whole controversy gets set, only at rest,

(2.) THE view taken by this Court was that the Notification issued by the Government was ultra vires the provisions of the Construction and as such this Court struck down the said notification making the so-called distinction between the constructions made prior to 1951 and after 1951 a legal illusion.

(3.) IN the present appeal, Mr. Chaudhary representing the tenant/original defendant only raised one contention. According to him, the suit itself was not maintainable, because, in this case, apart from, whether the construction was made in one particular manner or in a particular year or afterwards, fact remains that the tenancy was created in respect of the suit premises under the above said law relating to landlords and tenant and when the suit tends, the provisions of the Rent Control Order are now undebatably decided to be applicable and if they are applicable in the set of undisputed circumstances of this appeal, no prior permission of the Rent Controller was obtained before initiating the suit for ejectment of the tenant and hence bar on filing such a suit against a tenant becomes effective.