PREM NARAYAN Vs. PRABHOO DAYAL

JUDGEMENT

(1.) (On difference between A.H. Khan and H.R. Krishnan JJ.). This case comes before me on a difference of opinion between Khan, J. and Krishnan, J., on the question of interpretation of Section 7(2) of the Gwailor, Indore and Malwa United State (Madhva Bharat), Sthan Niyantran Vidhan, Samvat 2006 (Madhya Bharat Act No. 15 of 1950), hereinafter referred to as the 'Madhya Bharat Act'.

(2.) The facts relevant for the purpose may shortly be stated. The petitioners are the landlords, while the respondent is the tenant of certain premises situate in Murar (former Gwalior State). In 1948, the Sthan Niyantran Visheshagya, Gwalior State, Samavt 2004 (hereinafter referred to as the Gwalior Ordinance) was in force in the Gwalior State. The Gwalior Ordinance provided that if for any reason the landlord or the tenant, as the case may be, claimed that the rent was inadequate or excessive, he might institute a suit for fixation of rent in the Court of the Sub-Judge having jurisdiction as provided in the Ordinance. There was no provision for the giving of any notice before the filing of the suit (Section 5 of the Gwalior Ordinance). The tenant, however, after giving a notice to the landlord of his intention to file a suit for fixation of rent in respect of the premises in his occupation, filed a civil suit in the Court of the Sub-Judge, Murar. In 1950, when the aforesaid suit was yet pending, the Gwalior Ordinance was repealed and replaced by the Madhya Bharat Act. The Madhya Bharat Act made no provision saving the pending suits and created a special forum, e. g., the Court of the Rent Controller, for the determination of rent, under the Act. It further required a notice to be given to the landlord before a suit was filed against him for the purpose: (see Sub-sections (2) and (4) of Section 7 of the Act. On coming into force of the Act, the Court of the Civil Judge, Murar, returned the plaint in the suit for presentation to the proper Court. The tenant (respondent) thereupon filed the suit, out of which the present petition arises, in the Court of the Rent Controller, Murar, without giving any fresh notice of his intention to file a suit for the fixation of rent. To this suit, the landlords inter alia, raised the objection, that it was not tenable as the tenant had filed it without giving a notice to them as required by Sub-section (2) of Section 7 of the Madhya Bharat Act. The reply of the tenant was that, he had already given a notice before filing his suit in the Court of the Sub-Judge, Murar. and that no fresh notice was necessary as the earlier notice amply satisfied the requirements of Sub-section (2) of Section 7 of the Madhya Bharat Act.

(3.) The trial Court decided the objection in favour of the landlords and dismissed the suit. The appellate Court reversed the finding of the trial Court and remanded the case for a decision on merits. On the final decision of the suit in favour of the tenant, the landlords have come up to the High Court under Article 227 of the Constitution for quashing the order of the Rent Controller on the ground that it was passed without jurisdiction as the condition precedent for the exercise of jurisdiction by him, e. g., the giving of a notice as required by Sub-section (2) of Section 7 of the Madhya Bharat Act, had not been complied with by the tenant respon dent.