MUKUNDLAL AGARWAL Vs. SHANKERLAL VISHWANATH PRASAD

JUDGEMENT

(1.) THIS appeal has come up before us on a reference made by one of us, and arises out of proceedings initiated by the appellant Mukundlal under Section 10 of the Madhya Pradesh Accommodation Control Act, 1961, (hereinafter called the act), for fixation of 'standard rent' of certain shop premises situated in Sarafa ward, Jabalpur, in the occupation of the respondent Shankarlal as Mukundlal's tenant.

(2.) THE Rent Controlling Authority found that the landlord had not kept the accommodation in good and "tenantable repairs"; that the rent as shown in the municipal assessment register for the year 1947-48 was Rs. 90/- per month; and that on 7th December 1948 fair rent had been fixed at Rupees 70/- per month in respect of the accommodation by the competent authority under the C. P. and berar Regulation of Letting of Accommodation Act, 1946, which was then in force in Jabalpur. The authority took the view that in fixing 'standard rent', the provisions of Section 7 of the Act had to be given due consideration; that the matter was governed by Section 7 (i) of the Act; and that as reasonable rent in respect of the accommodation had been fixed in 1948 at Rs. 70/- the standard rent under the Act should be fixed at Rs. 70/-per month. The landlord then preferred an appeal before the District Judge under Section 31 of the Act. The learned District Judge first dismissed the appeal by an order dated 19th March 1964 which stated that in view of the decision of this Court in Mahabir v. Jotumal, 1964 MPLJ (Notes) 46: MSA No. 107 of 1963 dated 29-11-1963 learned counsel appearing for the landlord Mukundlal did not wish to press the appeal. Thereafter an application for review of that order was filed by the landlord. The review was founded on the ground that at the time of the hearing of the appeal what the landlord's counsel stated was not that he did not wish to press the appeal but that it was that in view of the decision of this Court referred to above the learned district Judge, who was bound to follow that decision, had no other alternative but to dismiss the appeal, so as to enable the landlord to canvass again in this Court the question decided in the case of Mahabir, 1964 MPLJ (Notes) 46 (supra ). The review application was ultimately granted and on 3lst August 1964 the learned district Judge following Mahabir's case, 1964 MPLJ (Notes) 46 made a fresh order dismissing Mukundlal's appeal holding that under Section 7 (i) of the Act the reasonable rent of Rs. 70/- per month fixed under the C. P. and Berar Regulation of Letting of Accommodation Act, 1946, would automatically become the 'standard rent' of the accommodation. The landlord then preferred a second appeal in this Court under Section 32 of the act. When that appeal first came for hearing before one of us (the Chief Justice), shvi Dabir, learned counsel for the appellant Mukundlal, assailed the correctness of the construction put on Section 7 of the Act in Mahabir's case, 1964 MPLJ (Notes) 46 (supra ). As the question of the meaning and effect of Section 7 of the act frequently arises in proceedings for fixation of standard rent under the Act and as it is a substantial one not free from difficulty, it was thought necessary to have the question of construction of Section 7 of the Act decided by a larger Bench rather than by a Judge sitting singly.

(3.) BEFORE dealing with the merits of the appeal, it is necessary to dispose of the preliminary objections raised by the learned counsel for the respondent to the maintainability and competency of this appeal. It was first said that Section 32 of the Act, under which this appeal had been preferred, did not indicate this Court as the forum of appeal: and that in fact the Act nowhere provided as to where a second appeal would lie. The question as to the forum of second appeal admits of an easy answer. Under Section 31, an appeal lies against an order of the Rent Controlling Authority to the Court of District Judge and not to the District Judge as a persona designata. This is clear from the fact that though Section 31 (i) in the beginning provides that "an Appeal shall lie. . . . . to the District Judge or an Additional District Judge having territorial jurisdiction" it concludes by saying that "that decision of the appellate court shall be final". The use of the words "appellate court" leaves no doubt that an appeal under Section 31 lies to the Court of District Judge. If an appeal lies to the court of District Judge, then it follows, on the basis of the principles laid down in National Sewing Thread Co. Ltd. v. James Chadwick and Bros, Ltd. , AIR 1953 sc 357; National Telephone Co. Ltd. v. Postmaster-General, 1913 AC 546 and adaikappa v. Chandrasekhara, AIR 1948 PC 12 that the Court of District Judge is appealed to as one of the ordinary courts with regard to whoso procedure, orders and decrees the ordinary rules of the Code of Civil Procedure apply and that any general right of appeal under the Code of Civil Procedure from its decision likewise attaches. An appeal under the Civil Procedure Code from a decision of the Court of district Judge lies to the High Court. Therefore, an appeal against an order passed in first appeal under Section 31 lies to this Court and nowhere else. Learned counsel for the respondent staled that if it were to be taken that an order made in first appeal under Section 31 was appealable to this Court under the Code of Civil Procedure, then Section 32 of the Act would become a superfluity. We are unable to accept this argument which overlooks the fact that what Section 32 of the Act does is to lay down the grounds on which a second appeal would be competent, and to that extent modifies Section 100 of the Code of Civil Procedure. The grounds enumerated in Section 32 of the Act arc different from those stated in section 100 C. P, C, Clauses (ii) and (iii) of Section 32 differ from Clauses (b) and (c) of Section 100 (i) of the Code. The effect of combined reading of Section 32 of the Act and Section 100 of the Code is that a second appeal against an order passed in first appeal under Section 31 lies to the High Court, not on the grounds specified in Section 100 of the Code but on any of the grounds mentioned in section 32 of the Act.