NOOR ALI Vs. BADRINATH

JUDGEMENT

(1.) This is a revision petition filed by the tenant against the order of the appellate authority given on 10th March, 1966. It arises in the following circumstances : R.C. No. 110/EV/62 was filed for eviction by the respondent-landlord alleging inter alia that the tenant is a wilful defaulter. This petition was resisted by the tenant. It was however allowed. An appeal against the order of eviction was filed by the tenant (R.A. No. 374/3 of 1962). The appeal was dismissed and it was held that he was not a tenant. Aggrieved by that decision, the landlord preferred C.R.P. No. 790 of 1964 in this Court. The learned Chief Justice Satyanarayana Raju allowed the revision petition holding that the petitioner was the tenant and remanded the matter to the lower appellate Court for decision of the other matters. The learned Chief Justice in his order of remand referred to an objection raised by the petitioner that the landlord was not entitled to ask for eviction since the Badrinath Tuljabai Jaiswal Charity Trust was shown in Exhibit P-1 as the institution which issued the receipt and not the petitioner. The learned Chief Justice further stated that this question was not considered by the appellate Court nor the Rent Controller presumably because it was not argued before them.

(2.) Although it is true that there is no specific direction in the order of remand that the appellate Court should consider this question also, the final direction given by the learned Chief Justice is :

(3.) The Judgment does not state that the question raised before the learned Chief Justice was disallowed. The inevitable conclusion, therefore, is that this matter was also left for the decision of the appellate Court, Since the question is not a pure question of law, but is mixed question of law and fact the appellate Court ought to have allowed the parties to adduce such evidence as they desire in regard to this aspect of the case. Instead of allowing the parties to adduce any evidence, the appellate Court rejected the contention on two grounds. It was firstly held : "Section 26 is a beneficial provision and is designed to enable certain classes of institutions named by the Government in their notification to remain unfettered by the restrictions imposed by the Act. In other words, institutions and religious bodies of the type mentioned in the Notification are free to evict tenants if they are intransigent or if the premises are required for the purpose of the institution themselves and the tenants cannot use the Act to protect their tenancy. It does not mean that the institutions of the type aforesaid cannot make use of the provisions of the Act for any purpose whatever. If that was what the Legislature intended, they would have said so in clear, unambiguous and categorical terms The second ground on which this contention was rejected was that the trust had come into being after the petitioner's lifetime and that there was nothing to show that the endowment in question had taken birth and shape. The same question is urged before me.