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Firm Ram Kishun Shah Etwari Sahu Petnr. v. Jamuna Prasad And Others Opposite Party.
Factual and Procedural Background
The petitioners were tenants of a house originally owned by Khan Bahadur Mirja Noor Beg. On 16-4-1949, Jaldhar Prasad and Dasrath Prasad purchased the house, and on 6-8-1949, the opposite party filed an application under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947, seeking eviction of the petitioners. The opposite party claimed the property was acquired for constructing a petrol pump and had obtained a “no objection” certificate from the District Magistrate of Monghyr for this purpose. The House Controller allowed the eviction application on 11-3-1950, and an appeal by the petitioners was rejected on 16-5-1950. The petitioners then filed a suit for declaration and permanent injunction challenging the House Controller’s jurisdiction under Section 11(3) of the Act. They sought an ad interim injunction restraining eviction, which was refused by the learned Munsif and upheld by the District Judge on appeal.
Legal Issues Presented
- Whether the petitioners are entitled to a temporary injunction restraining the opposite party from executing the eviction order passed by the House Controller under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947.
- Whether the House Controller had jurisdiction to pass the eviction order under Section 11(3) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947, given the facts of the case.
- Whether the term “occupation” in Section 11(3) of the Act covers the opposite party’s alleged status as agent of the Standard Vacuum Oil Company and their proposed use of the premises for a petrol pump.
Arguments of the Parties
Petitioners' Arguments
- They were lawful tenants of the house and the eviction order by the House Controller was illegal and without jurisdiction under Section 11(3) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947.
- The opposite party was acting as an agent of the Standard Vacuum Oil Company, which had obtained a “no objection” certificate and intended to construct a petrol pump.
- The petitioners contended that the eviction order was invalid as the landlord’s bona fide occupation was not established.
- They sought a temporary injunction to maintain the status quo until the suit was decided.
Opposite Party's Arguments
- The premises were required bona fide for personal use to carry on the business of agency in petrol and mobil oil.
- Though the petrol pump would be supplied by the Standard Vacuum Oil Company, the land and house belonged to the opposite party and would remain their property.
- The business was the personal business of the opposite party as agents, and even if the agency ended, the property would remain theirs.
- The lower courts had discretion to grant or refuse the temporary injunction, and the High Court should not interfere with this discretion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rex v. St. Pancras, (1877) 2 Q.B.D 581 at p. 588 | Definition and scope of "occupation" including possession and something more than legal possession. | The court used this to interpret "occupation" in Section 11(3) of the Act, emphasizing that legal possession alone does not constitute occupation. |
| Walker v. Jones, (1865) L.R 1 P.C 50 at p. 61 (35 L.J.P.C 30) | Whether the nature and difficulty of questions justify granting an injunction pending final decision. | The court relied on this principle to hold that a fair and substantial question exists warranting a temporary injunction to preserve status quo. |
| Israil v. Shamser Rahman, 41 Cal. 436 (A.I.R (1) 1914 Cal. 362) | Support for granting temporary injunction where a substantial question is to be investigated. | Applied to justify granting the injunction restraining execution of eviction pending suit disposal. |
Court's Reasoning and Analysis
The court analyzed whether the petitioners were entitled to a temporary injunction restraining eviction under Section 11(3) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947. It noted a substantial and bona fide dispute as to whether the opposite party’s claim of occupation for bona fide personal use was valid, particularly given the petitioners' assertion that the opposite party was acting as an agent of the Standard Vacuum Oil Company and the eviction order was without jurisdiction. The court examined the meaning of “occupation” through cited precedents, observing that legal possession alone does not amount to occupation and that the term is of uncertain meaning depending on context.
Finding that the lower courts had not properly exercised discretion and had decided the suit prematurely by denying the injunction without establishing the absence of a prima facie case, the High Court held that the petitioners had shown a fair and substantial question requiring preservation of the status quo. The court emphasized that the injunction was necessary until the suit could be heard and decided on merits by the learned Munsif.
Holding and Implications
The petitioners are entitled to a temporary injunction restraining the opposite party from executing the eviction order passed by the House Controller.
The court set aside the orders of the lower courts and granted the injunction until the suit is disposed of by the learned Munsif. The decision preserves the status quo pending adjudication of the substantive dispute, ensuring that the petitioners are not evicted prematurely. The court directed expeditious hearing of the suit and required an explanation if it was not disposed of by mid-January. No broader precedent was established beyond the application of settled principles regarding temporary injunctions and the interpretation of “occupation” under the Act.
Ramaswami, J.:— The question to be examined in this case is whether the petnrs. are entitled to be granted a temporary injunction against the opposite party restraining the latter from executing the order of eviction made by the House Controller, Monghyr.
2. The petnrs. alleged that they were the tenants of the house in dispute which belonged to one Khan Bahadur Mirja Noor Beg; that on 16-4-1949, Jaldhar Prasad & Dasrath Prasad purchased the house & on 6-8-1949, the opposite party filed an appln. under the Bihar Buildings (Lease, Rent & Eviction) Control Act (Act III [3] of 1947) for evicting the petnrs. The opposite party alleged that they had purchased the holding for the construction of a petrol pump & Dist. Mag. of Monghyr had granted a “no objection” certificate for the construction & installation of the petrol pump. On 11-3-1950, the House Controller, Mr. S.N Mallik, allowed the appln. & ordered the petnrs. to vacate the house. An appeal was filed before the Comr of Bhagalpur, who by his order dated 16-5-1950 rejected the appeal. On 31-5-1950, the petnrs. filed, a suit for declaration & permanent injunction against the opposite party on the ground that the House Controller had no jurisdiction to make an order of eviction under Section 11, sub-Section (3) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947. On, 1-6-1950, the petnrs. asked for issue of an ad interim injunction against the opposite party restraining the latter from executing the order of eviction. The learned Munsif refused to grant ad interim injunction, which order was upheld by the learned Dist. J. in appeal.
3. In support of this rule, the learned Advocate-General stressed the argument that there was a fair & substantial question at issue between the parties; that the petnrs. would suffer irreparable damage if temporary injunction be not granted & that the lower Ct's had acted in an arbitrary manner & refused to grant the injunction asked for. In my opinion, the argument of the learned Advocate-General is well founded & must prevail. It is important to notice that in para. 6 of the plaint the petnrs. had asserted that the order of eviction made by the House Controller was illegal & without jurisdiction for the reason that the Standard Vacuum Oil Company had obtained the “no objection” certificate & would also construct the petrol pump &
“the defts. will become the company's tenants & pay rent to the company for the pump, & the defts. on the other hand would be getting a certain amount of rent from the company only for the land, given or leased out to the company.”
In the written statement, the opposite party asserted that
“they require the premises bona fide for their personal use for carrying on the business of Agency in petrol & mobil oil, & though the pump will be supplied by the company, the land & house belong to the petnrs. & shall remain their property and the business shall be the personal business of the defts. as Agents of the Standard Vacuum Oil Co. Ltd., & even alter the termination of the Agency, if it at all happens at any future date, the house & land shall remain the property of the defts.”
It should also be noticed that in the order of eviction, the House Controller has overruled the objection of the petnrs. on the ground that though “the premises if the petrol pump is installed will be only on hire to the Standard Vacuum Oil Co. for their use.” Sub-s. (3) of S. 11 would be applicable & the tenants ought to be evicted from the house in dispute. In another portion of the order, the House Controller has said that though the Standard Vacuum Oil Co. would be in occupation of the building
“that will be through the petnr. himself. In that case also it can be safely held that the landlord requires the building reasonably & in good faith for his own occupation.”
The question for decision in this suit would, therefore, arise whether the word “occupation” in sub-s. (3) of S. 11 of the (Act III [3] of 1947) covers, on proper construction, the case of the opposite party who, as alleged in the plaint, have become the agent of the Standard Vacuum Oil Co. & proposed to demolish the existing building & erect new one in its place for the purpose of installation of a petrol pump.
4. Reference may be made in this context to the scope & meaning of the word “occupation” as used in S. 11 of the Act. As observed in Rex v. St. Pancras, (1877) 2 Q.B.D 581 at p. 588:
“Occupation includes possession as its primary element, but it also includes something more. Legal possession does not, of itself constitute an occupation. The owner of vacant house is in possession & may maintain trespass against any one who invades it; but as long as he leaves it vacant he is not in occupation; nor is he an occupier.”
In another case 31 M.L.T 114 it was stated that:
“The word ‘occupy’ is a word of uncertain meaning. Sometimes it indicates legal possession in the technical sense, as when occupation is made the test of ratability; & it is in this sense that it is said that the occupation of (?) premises by a servant if such occupation is subservient & necessary to the service is the occupation of the master. At other times occupation denotes nothing more than physical presence in a place for a substantial period of time.”
It is manifest, therefore, upon the pleadings that the decision of the suit will depend upon the proper construction of sub-s. 3 of S. 11 of the Act & also upon the disputed question of fact regarding which the parties have not adduced evidence as yet. In my opinion, there is a fair & substantial question to be decided as to the rights of the parties in the present suit. It is not necessary for our present purpose nor is it right that we should further examine the question in dispute or anticipate the decision of the question in the suit itself. What the Ct. has at this stage to determine is whether there is a bona fide contest between the parties or, as observed by Turner L.J in Walker v. Jones, (1865) L.R 1 P.C 50 at p. 61 : (35 L.J.P.C 30):
“The real point is, not how these questions ought to be decided at the hearing of the cause, but whether the nature & difficulty of the questions is such that it was proper that the injunction should be granted until the time for deciding them should arrive.”
It is quite sufficient if the Ct. find a case which shows that there is a substantial question to be investigated & that matters should be preserved in status quo until that question can be finally disposed of. Reference may be made to Israil v. Shamser Rahman, 41 Cal. 436 (A.I.R (1) 1914 Cal. 362) which is an authority in support of this view. Applying this principle to the present case, I hold that the petnrs. are entitled to be granted a temporary injunction restraining the opposite party from executing the order of eviction passed by the House Controller until the disposal of the suit in the Ct. of the Munsif.
5. On behalf of the opposite party, the argument was stressed that it was in the discretion of the lower Cts. to grant or not to grant an order of temporary injunction, & the H.C ought not to interfere in such a case. But I am of the opinion that the lower Cts. have not exercised their discretion according to well settled judicial principles but, on the contrary, have acted in an arbitrary manner. Instead of finding whether a prima facie case has been made out, the lower appellate Ct. has indeed decided the whole suit by finding that
“there was no lack of jurisdiction on the part of the House Rent Controller in passing the eviction order & the title suit filed is merely a contrivance to extend the period of stay of the applts. in the house as long as possible.”
It is manifest that the lower Cts. have in this case failed to exercise a jurisdiction vested in them by law & the H.C ought to interfere in revision for the ends of justice.
6. For these reasons, I would make the rule absolute, set aside the order of the lower Cts. and grant a temporary injunction restraining the opposite party from executing the order of eviction made by the House Controller.
7. The appln. is accordingly allowed with costs. Hearing fee two gold mohurs.
8. It is necessary that the learned Munsif should take up the hearing of the suit & dispose of it as soon as possible.
9. If the suit is not disposed of by the middle of January next, an explanation should be submitted to the H.C
10. C.P Sinha, J.:— I agree.
M.K
11. Petition allowed.
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