Bishambhar Nath Bhalley (Dr.) v. Baldeo Prasad Gupta

Gurtu, J.:— This appeal arises out of a suit for ejectment brought by the landlord against a tenant.

2. The Trial Court decreed the suit for ejectment and for arrears of rent. Upon appeal, the appeal has been dismissed.

3. This is a case in which the landlord had obtained the permission of the District Magistrate to eject before he filed the suit in the civil court. But before he filed the said suit, a revision had been filed before the Commissioner and was pending before him. Learned counsel for the appellant urges that having regard to the relevant parts of Sec. 3 of the U.P Control of Rent and Eviction Act (Act No. III of 1947) this suit could not be filed until the revision before the Commissioner was disposed of. In view of the submission, it becomes necessary to quote the relevant parts of Sec. 3, which are as under:—

“(1) Subject to any order passed under sub-sec. (3) no suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds:

(a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand.” etc.

4. Sub-sec. (2) of Sec. 3 runs as follows:—

“Where any application has been made to the District Magistrate for permission to sue a tenant for eviction from any accommodation and the District Magistrate grants or refuses to grant the permission, the party aggrieved by his order may within 30 days from the date on which the order is communicated to him apply to the Commissioner to revise the order.”

5. Sub-sec. (3) of the said Section runs as under:—

“The Commissioner shall hear the application made under sub-sec. (2), as far as may be within six weeks from the date of making it and he may, if he is not satisfied as to the correctness, legality or propriety of the order passed by the District Magistrate or as to the regularity of proceedings held before him alter or reverse his order, or make such other order as may be just and proper.”

6. Sub-sec. (4) of the aforesaid section runs as under:—

“The order of the Commissioner under sub-sec. (3) shall, subject to any order passed by the State Government under Sec. 7F be final.”

7. It is also necessary to quote Sec. 7F of the Act which runs as follows:—

“The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in sec. 3 or requiring any accommodation to be let or not to be let to any person under Sec. 7 for directing a person to vacate any accommodation under Sec. 7-A and may make such order as appears to it necessary for the ends of justice.”

8. It will appear from Sec. 3(2) quoted above that a revision can be taken to the Commissioner within 30 days and it appears from sub-sec. (3) that the Commissioner can alter or reverse the order of the District Magistrate or “make such other order as may be just and proper.” The State Government by virtue of Sec. 7F can then, call for the record of any case granting or refusing him the permission and interfere with the order of the Commissioner and it may itself make such order as appears necessary to it for the ends of justice. Thus the Act provides a machinery for revision and the question is whether a land-lord is precluded from filing a suit even though he has obtained a permission from the District Magistrate, while the revision before the Commissioner is yet pending. The wording of Sec. 3(1) is to the following effect:—

“Subject to any order passed under sub-sec. (3) no suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds…….”

9. What I have to decide is whether the words “subject to any order passed under sub-sec. (3)” mean that if a revision has been filed the landlord must wait until a final order has been passed under sub-sec. (3) or whether in the absence of any interim order suspending the District Magistrate's permission under sub-sec. (3) he can file a suit on the basis of the permission of the District Magistrate granted to him. Now Sec. 3(3) shows that the Commissioner may make “such other order as may be just and proper.” This seems to give to the Commissioner the power not only to make final orders altering or reversing the District Magistrate's orders but to make interim orders also and it seems to give to the Commissioner power to make an interim order whereby the District Magistrate's order granting permission would become ineffective pending the disposal of the revision before the Commissioner. If such an order was passed, then there would be an order to which the order of the District Magistrate would be subject and, in consequence, the permission would become ineffective and the suit could not be filed. I do not consider that the words “subject to any order passed under sub-Set. (3) mean that while the revision is pending the permission must be deemed to be ineffective and no suit can be filed. If the intention was to make the permission of the District Magistrate ineffectual, it could easily have been said that pending the disposal of the revision, no suit could be filed Sec. 3(3) of the Act no doubt indicates that the Commissioner can expeditiously decide the revision before him and he is expected to do so within six weeks but the period of six weeks is not an absolute one and the Commissioner may well take time in excess of six weeks and, in these circumstances, it seems to me that it could not have been intended that even without any interim order, from the Commissioner, the effectiveness of the District Magistrate's permission would be held in abeyance pending the disposal of the revision.

10. This is the principal point raised before me on which my adjudication has been invited. I do not uphold the contention of the appellant and consequently I dismiss this appeal with costs. Leave to file a special appeal is asked for and granted. The stay order, if any, is discharged.

11. Appeal dismissed.