RAM NATH Vs. KALU RAM

JUDGEMENT

(1.) This is a second appeal by defendant Ram Nath against the judgment and decree of the District Judge Jhunjhnu. The case was instituted on the 19th May 1945 and was decreed on the 10th March 1948 by the Civil Judge, Jhunjhnu. The defendant filed an appeal against the judgment and decree of the Civil Judge in the Court of the District Judge, Jhunjhunu. Before the district Judge an objection was taken by the defendant that under Clause 11 (2) of Jaipur Rent Control Order 1947 (hereinafter to be referred to as "Jaipur order") a certificate from the controller was necessary. This objection was overruled and the appeal was dismissed. Against this judgment and decree of the District Judge, the defendant has come in second appeal.

(2.) The appeal raises a short but important point of law. On behalf of the appellant, it has been argued by Mr. Agarwal that according to Sub-clause 2 of Clause 11 of the Jaipur Order the suit of the nature referred to in Sub-clause 1 of Clause 11 instituted prior to the 1st November 1945 or an appeal therein pending at the commencement of the order was bound to be stayed and the plaintiff was bound to produce a certificate under Clause 8 from the controller. In case of non-production of such certificate within the period fixed for the purpose or within such extended period as the court might from time to time allow the suit or appeal, as the case might be, was bound to be dismissed. Under Sub-clause 1 of Clause 11 so long as the Jaipur order was in force no court was to have jurisdiction to entertain, try and decide any suit for ejectment or possession arising out of an agreement of existing or intended tenancy unless the plaintiff produced a valid certificate under Clause 8 from the Controller in that behalf. It has been argued that as the suit was instituted prior to 1st November 1945 and was of the nature referred to in Clause 11 (1) a certificate from the Controller under Clause 8 was necessary and time was taken by the plaintiff's counsel for filing such a certificate in this court. Three month's time was allowed but the plaintiff did not file the required certificate. The suit was, therefore, bound to be dismissed under Clause 11 (2) of Jaipur Order and consequently this appeal should be allowed.

(3.) On behalf of the respondent it was argued by Mr. D.M. Bhandari that shortly after time was obtained by the plaintiff for obtaining a certificate under Clause 8, Jaipur Order was superseded by Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as Rajasthan Act). Under the said Act, the town of Udaipur where the property in suit is situated was not included among the towns to which the Act applied. There was no Controller too for the said town after the expiry of Jaipur order. It was, therefore, physically impossible for the plaintiff to obtain any certificate. The fact that Udaipur was excluded from the list of towns to which the Rajasthan Act applied and it was not provided as to what will be the authority to grant certificates in those towns to which Jaipur Order applied but Rajasthan Act did not show that the legislature did not intend that Clause 8 or 11 of Jaipur Order should apply to this town anymore. Under the circumstances the suit cannot be dismissed for failure to produce the certificate. Mr. Agrawal replies that under Clause 30 of the Rajasthan Act an action taken before the date on which Jaipur Order was repealed by Rajasthan Act was required to be continued until varied or superseded under the said Act.