Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Misc. Writ Petn. No. 15689 of 1987

Judges

R.P Singh, J.

Acts

S. 12(3) of U.P Act 13 of 1972, hereinafter referred to as the Act,
provisions of the Rent Control Act
S. 37 of the Rent Control Act
S. 12 of U.P Act. No. 13
U.P Act 13 of 1972
Rent Control Act

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner, a tenant of premises No. 122/226 Sarojini Nagar, Kanpur, paid monthly rent of Rs. 160. The petitioner's wife, Smt. Surjeet Kaur, acquired premises No. J-32, Vasant Behar, Naubasta, Kanpur in a vacant state; under S. 12(3) of U.P. Act No. 13 of 1972, this acquisition rendered the tenancy accommodation in dispute deemed vacant. On 29-8-1983 the landlord (respondent No. 3) filed an application under S. 16 of the Act for release of the disputed accommodation. After initial allotment to a third party and a successful revision by the landlord, the disputed accommodation was released to respondent No. 3. The petitioner challenged that release by Writ Petition No. 7621 of 1985; this Court dismissed the petition on 22-8-1985 but, accepting counsel's undertaking, allowed the petitioner one year before ejectment, subject to conditions (no induction of others; payment of damages at Rs. 160 per month).

After dismissal of the writ petition, the petitioner's wife sold the newly acquired house on 3-12-1985. The petitioner sought review under S.16(5) on 25-8-1986 to contend that the deemed vacancy had ceased on sale; the review was rejected on 28-2-1987. The petitioner also filed a civil suit for permanent injunction (obtained ex parte relief initially, later vacated and suit dismissed by the Munsif on 28-3-1987; the Additional District Judge remanded the suit). Meanwhile the petitioner applied for temporary injunction restraining dispossession pursuant to the release order; the Munsif rejected that application (30-5-1987) and the Additional District Judge dismissed the appeal (10-8-1987). The petitioner challenged the latter order by the present writ petition under Article 226.

Legal Issues Presented

Whether the "deemed vacancy" created under S. 12(3) of the U.P. Act (by acquisition in a vacant state) can cease to exist by a subsequent sale of the newly acquired property after the release order has attained finality.
Whether a civil suit challenging the validity of an order of release under the Rent Control statute is maintainable in the Civil Court in view of S. 37 of the U.P. Act 13 of 1972 (finality of statutory orders).
Whether the petitioner is bound by an undertaking given by his counsel in Writ Petition No. 7621 of 1985, which permitted the petitioner one year before ejection.
Whether an order of release under S. 16 can be executed (by recourse to R. 14) if the petitioner contends that vacancy does not exist at the time of execution due to later events.

Arguments of the Parties

Petitioner's Arguments

After the petitioner's wife sold house No. J-32 (on 3-12-1985), the deemed vacancy that had been created by that acquisition ceased to exist; thus the petitioner's tenancy status was revived and he could not be evicted pursuant to the earlier release order.
The civil suit in the Civil Court challenging the release order is maintainable; the Civil Court may examine the validity of the release order.
The petitioner is not bound by the undertaking given by his counsel in Writ Petition No. 7621 of 1985 and therefore is not obliged to vacate after one year.
Even if a release order was passed under S.16, it could not be executed if vacancy did not exist at the time of enforcement (i.e., R.14 proceedings).

Respondent's Arguments

The relevant date for applying S.12(3) is the date when the acquisition in a vacant state occurred; subsequent events (such as a later sale) do not erase the deemed vacancy that arose at that prior date.
S.37 of the U.P. Act attaches finality to orders made under the statute and excludes challenge in ordinary courts; a civil suit challenging the release order is therefore barred where the order is intra vires and has been finally determined.
The petitioner is bound by the undertaking given by his counsel in the writ proceedings; the counsel had authority to give that undertaking as evidenced by the vakalatnama, and the undertaking has the force of injunction and may amount to contempt if breached.
The release order was final up to the High Court when the writ was dismissed; the petitioner has undertaken to vacate after one year and his subsequent conduct (or his wife's sale) cannot be used to defeat the purpose of the statute.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Satya Prakash v. R.C and E.O, Allahabad, 1986 (UP) RCC 384	Held that the Court is competent to take subsequent events into consideration (where such events occur during the pendency of the writ petition).	Court distinguished it: in the present case the writ had already been dismissed before the subsequent event, so the precedent was not of assistance to the petitioner.
M.M. Quasim v. Manohar Lal Sharma, (1981) 3 SCC 36 : AIR 1981 SC 1113	Appellate court can take notice of subsequent events occurring during the pendency of appeal and mould relief accordingly.	Court held it was not helpful because the subsequent event in the present matter occurred after the writ had been dismissed (i.e., not during pendency).
P. Venkateswarlu v. Motor and General Traders, (1975) 1 SCC 770 : AIR 1975 SC 1409	Revisional court could take cognizance of subsequent events where revision is pending.	Distinguished: applicable only where revision was pending; not applicable here where proceedings had become final.
Rajendra Prasad v. IXth Addl. District Judge, Kanpur, 1982 (UP) RCC 265 : (1981 All LI NOC 6)	For S.12, the relevant date is when the vacancy occurred (i.e., the moment tenant obtained another premises); subsequent change is not relevant.	Relied upon by respondent; Court accepted the principle that subsequent events do not negate vacancy once it has arisen.
Mohammad Nazir v. Haji Abdul Shakur, 1976 All WC 390	Only relevant factor is acquisition of a residential building in a vacant state; immaterial whether tenant actually resides there later or whether the building subsequently falls down.	Court cited this to support the proposition that subsequent events do not undo deemed vacancy created by acquisition in vacant state.
Sudhakar Shukla v. Rajesh Kumar Agarwal, (1983) 1 All Rent Cas 165 : (1983 All LJ 397)	Where no order of special tribunal under the Rent Control Act is being questioned, Civil Court may have jurisdiction; S.37 applies only to exclude jurisdiction as specified.	Court observed that this authority actually goes against the petitioner's contention in the present facts and thus does not assist the petitioner.
Anand Babu Agrawal v. Ayodhya Prasad Tiwari, (1982) 1 All Rent Cas 175 : (1981 All LJ 1317)	An order contrary to principles of natural justice could be challenged in Civil Court.	Court found it inapplicable: the release order in the present case was passed after full contest and its validity was upheld up to the writ stage.
Smt. Abida Begum v. Rent Control and Eviction Officer, AIR 1959 All 675	Power of Civil Court to question whether an order is intra vires or ultra vires is not taken away.	Court held this precedent did not help the petitioner under the present circumstances.
Smt. Munni Devi v. Gokal Chand, 1970 All LJ 1066 : (1969) 2 SCC 879 : AIR 1970 SC 1727	Only when an order is with jurisdiction is it not liable to be challenged in Civil Court.	Court found the precedent of no assistance to the petitioner in the present facts.
Ram Swamp v. Shikar Chand, AIR 1966 SC 893	The bar excluding Civil Court jurisdiction under the Rent Control Act does not operate where the impugned order is a nullity.	Court noted no such contention of nullity existed here; precedent was not helpful to petitioner.
Chhagan Bhai v. Soni Chandu Bhai, (1976) 2 SCC 951 : AIR 1976 SC 1909	An undertaking given to Court has the same force as an injunction; breach can amount to contempt.	Court applied this principle to hold the petitioner bound by his counsel's undertaking and precluded from now contesting it.
Giri Raj Saran v. 1st Addl. Dist. Judge, 1980 All Rent Cas 354 : (1980 All LJ 159)	A petitioner cannot be permitted to challenge an order obtained on his own initiative (i.e., where release was granted on his undertaking).	Court relied on it to support the conclusion that the petitioner cannot now challenge the consequences of the undertaking he obtained advantage from.
Gyanendra Verma v. District Judge, (1984) 1 All Rent Cas 333	Where a decree for eviction was passed but not executed and thus no vacancy existed, an allotment order could be set aside because on the date of allotment there was no vacancy.	Court held this precedent was not helpful to petitioner, since facts and timing differed from the present case.
Lachmi Narain v. R.C and E.O, 1962 All LJ 213	District Magistrate has no jurisdiction to issue allotment merely because there exists an ejectment decree if no actual vacancy exists.	Court found it inapplicable to the present facts.
Surendra Prakash Goel v. 1st A.D.J, (1987) 1 All Rent Cas 276 : (1987 All LJ 528)	Once a tenant acquires in vacant state, vacancy validly arises under S.12(3); subsequent letting or disposal does not wipe out that vacancy; the relevant point is the acquisition in vacant state.	Court stated agreement with this view and applied it: subsequent sale by petitioner's wife did not negate the earlier deemed vacancy; release order could be enforced.
Smt. Mahadevi v. Civil Judge, Farrukhabad, (1987) 1 All Rent Cas 406 : (1987 All LJ 870)	Facts similar: release allowed after contest and final up to High Court; subsequent civil suit by tenant's relatives held abuse of process and interim stay quashed.	Court cited it as supporting the view that the civil suit in similar circumstances was an abuse and the release order should be enforced.
Prem Shankar Tripathi v. Ist Addl. District Judge, (1986) 1 All Rent Cas 398 : (1986 All LJ 1200)	Filing of suit in such circumstances may be frivolous, vexatious and an abuse of the court process.	Court cited it to support the conclusion that the present suit and tactics were abusive and not entitled to protection.
Smt. Rajkumari Kapur v. Civil Judge, Kanpur, (1986) 21 All Rent Cas 469 : (1987 All LJ 137)	Continuation of suit in Civil Court may be an abuse of process where facts demonstrate deplorable conduct of tenant; reliefs may be quashed and enforcement directed.	Court relied on it as persuasive authority to quash abusive suits and to enforce release orders; applied analogously here.

Court's Reasoning and Analysis

The Court proceeded by analyzing the statutory provision S.12(3) (deemed vacancy where tenant or family member acquires a residential building in a vacant state in the same city) and the procedural history of the release order. The Court identified two central features of its reasoning:

Finality and timing: the Court emphasised that the release order became final as against the petitioner when the petitioner's writ petition was dismissed on 22-8-1985. Because the release order and the validity of the deemed vacancy had been finally adjudicated up to this Court, the subsequent sale (3-12-1985) occurred after those proceedings had ended. The Court repeatedly distinguished authorities relied upon by the petitioner on the ground that those cases concerned subsequent events occurring during the pendency of writs, appeals or revisions; by contrast, no proceedings remained pending here when the sale took place.
Substance of S.12(3) and legislative purpose: the Court analysed S.12(3) textually and considered prior decisions (e.g., Rajendra Prasad; Mohammad Nazir; Surendra Prakash Goel) establishing that the relevant moment for forming the deemed vacancy is the date the tenant (or member of his family) acquires a residential building in a vacant state. The Court accepted the position that subsequent disposal or letting out of the newly acquired house does not erase the vacancy that already arose; to hold otherwise would allow tenants to defeat the statute's purpose by transiently letting out such houses at critical times.

On the maintainability issue, the Court relied on S.37 of the U.P. Act which attaches finality to orders made under the statute and bars questioning those orders in ordinary courts. The Court found that the present proceedings (a civil suit and an application for injunction seeking to challenge the release order) were inconsistent with that statutory bar, particularly because the release order had been fully contested and upheld up to this Court.

On the undertaking, the Court examined the vakalatnama and concluded that counsel had authority to give the undertaking on the petitioner's behalf; it followed established authorities (Chhagan Bhai and others) that an undertaking to the Court has the force of an injunction and binds the party, and that a party cannot resile from an undertaking which it had obtained advantage from.

Having rejected each of the petitioner's principal contentions for the reasons above—(a) that subsequent sale negated deemed vacancy, (b) that the civil suit was maintainable to challenge a final statutory order, (c) that the petitioner was not bound by his counsel's undertaking, and (d) that the release could not be executed if vacancy no longer existed—the Court concluded that the release order should be enforced and that the writ petition had no merit.

Holding and Implications

HOLDING: The writ petition is dismissed with costs. The Court ordered that the release order should be enforced forthwith.

Implications:

Direct effect on the parties: the petitioner cannot resist enforcement of the earlier release order; the petitioner is bound by the undertaking given by his counsel and must vacate and hand over peaceful possession as previously envisaged; the release order is to be enforced expeditiously.
On legal principle: the Court applied and reiterated the position that, under S.12(3) of the U.P. Rent Control Act, deemed vacancy arises when a residential building is acquired in a vacant state and subsequent disposition of that building does not generally negate the vacancy. The Court also affirmed the finality conferred by S.37 against collateral civil challenges to statutory orders that have been duly contested and finally determined.
The opinion does not purport to create a novel precedent beyond applying existing authorities; the decision enforces established principles as applied to the facts before the Court.

This summary is limited strictly to facts, arguments, reasoning, and citations stated in the provided opinion. No information has been added beyond what the opinion explicitly contains.

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Mahendra Singh v. Xth Additional District Judge

1. By means of this writ petition under Art. 226 of the Constitution, the petitioner has challenged the order passed by the Additional District Judge, dated 10-8-1987, dismissing the appeal and upholding the order passed by the Munsif, Kanpur Nagar, Kanpur, dated 30-5-1987, rejecting the application of the petitioner for permanent injunction restraining the respondents from evicting the petitioner; from the accommodation in dispute.

2. Brief facts of the case are that the petitioner was a tenant of premises No. 122/226 Sarojini Nagar, Kanpur on a monthly rent of Rs. 160/- per month. During the continuance of the tenancy, the petitioner's wife Smt. Surjeet Kaur acquired premises No. J-32, Vasant Behar, Naubasta, Kanpur and since the petitioner's wife acquired the said premises in a vacant state in the same city, accommodation in dispute was deemed vacant under S. 12(3) of U.P Act 13 of 1972, hereinafter referred to as the Act, and hence the respondent No. 3 Ram Murti Tandon, the landlord, filed an application for the release of the disputed accommodation under S. 16 of the Act on 29-8-1983. Initially the release application of the respondent No. 3 was rejected and the disputed accommodation was allotted to one Sardar Bhupendra Singh but on a revision filed by respondent No. 3, the revision was allowed, the order of allotment in favour of Sardar Bhupendra Singh was set aside and the disputed accommodation was released in favour of the landlord, respondent No. 3 in the case. Feeling aggrieved the petitioner filed a writ petition before this Court which was numbered as Writ Petition No. 7621 of 1985 and was dismissed on 22-8-1985 by this Court and on an undertaking given by the learned Counsel for the petitioner that the petitioner shall hand over and give vacant possession of the accommodation in dispute after one year, the petitioner was allowed one year's time to deliver vacant and peaceful possession of the disputed accommodation to the respondent No. 3. It would be relevant here to quote the order passed by this Court while dismissing the writ petition on 22-8-1985 as the controversy in the case rests on the interpretation of the order passed by this Court. The order runs as follows:—

“Heard counsel for the parties. There is no error apparent on the face of record. Dismissed.

Sri R.P Asthana, learned Counsel on behalf of the petitioner stated that in case if the petitioner is compelled to shift from the premises in dispute he shall suffer irreparable injury as at present he has no other alternative accommodation in his possession. He has given an undertaking on behalf of the petitioner that he shall give peaceful and vacant possession to respondent No. 3 after one year.

In view of the statement made by the learned Counsel for the petitioner and also in view of the undertaking given by him the petitioner shall not be ejected from the premises in dispute for a period of one year from today. It is, however, made clear that the petitioner shall not induct any one during this time in the premises in dispute. The petitioner shall further pay to the respondent No. 3 damages at the rate of Rs. 160/- by 7th of each month.

Sd/- V.N.K

22-8-85.”

3. After the dismissal of the petitioner's writ petition by this court on 22nd August, 1985 and on an undertaking given on behalf of the petitioner, the petitioner having been allowed one year's time to vacate and hand over peaceful possession of the accommodation in dispute, the petitioner's wife sold the premises No. J-32 Vasant Behar, Naubasta, Kanpur on 3-12-1985 and then the petitioner moved an application on 25-8-1986 under S. 16(5) of the Act for reviewing the order declaring vacancy on the ground that after the house No. J-32, Vasant Behar was sold away by the petitioner's wife, the deemed vacancy which had been created on account of the acquisition of said property, had ceased to exist. The review application was, however, rejected by the Rent Control and Eviction Officer on 28-2-1987. While the proceedings for review of the release order were going on the petitioner instituted a suit for permanent injunction on 28-10-1986 in which he obtained an ex parte injunction but later the suit was dismissed by the Munsif on 28-3-1987 and the ex parte injunction was vacated. On appeal, the suit was remanded back to the learned Munsif by the Additional District Judge and now the petitioner moved an application for temporary injunction restraining the respondents from dispossessing the petitioner in pursuance of the order of release passed in favour of respondent No. 3. This injunction application was rejected by the Munsif on 305-1987 against which the petitioner went up in appeal before the Additional District Judge who also dismissed the appeal vide his order dated 10-8-1987 which has been challenged by the petitioner in this writ petition. The learned counsel for the petitioner strenuously urged that even though deemed vacancy was created in respect of the disputed accommodation on account of the petitioner's wife having acquired house No. J-32, Vasant Behar in a vacant state in the same city of Kanpur but after the petitioner's wife sold away house No. J-32, Vasant Behar on 3-12-1985, the deemed vacancy which was created on account of the said acquisition, had ceased to exist and hence it was incumbent to the Civil Court to take into consideration the subsequent events and since now the petitioner's status again revived as a tenant of the disputed accommodation and hence he could not be evicted in pursuance of the release order. Secondly, it was contended by the learned counsel for the petitioner that the suit filed by the petitioner in the Civil Court was maintainable and hence the Munsif and the District Judge were competent to go into the validity of the release order passed in favour of respondent No. 3 which is being challenged in the civil suit. Thirdly, it was contended by the learned counsel for the petitioner that the petitioner is not bound by the undertaking given by the petitioner's counsel in Writ Petition No. 7621 of 1985 and hence he is not liable to vacate and hand over vacant possession of the disputed accommodation to the respondent No. 3; and fourthly, it was contended that even though the order of release was passed under S. 16 of the Act in favour of respondent No. 3 but the same could not be executed if the vacancy does not exist when order of release is being enforced in proceedings under R. 14 of the Act.

4. Now coming to the first point the contention of the learned counsel for the petitioner is that now when the respondent No. 3 has sought to be given possession of the disputed accommodation in pursuance of the order of release, now due to the subsequent development that the house No. J-32 Vasant Behar which was acquired by the petitioner's wife Smt. Surjeet Kaur, has already been sold by the petitioner's wife on 3-12-1985, the deemed vacancy which was created on account of the acquisition of said property, has ceased to exist and the status of the petitioner again revived as the tenant of the disputed accommodation and hence the petitioner could not be dispossessed from the disputed accommodation in pursuance of the release order which itself was passed on account of the deemed vacancy. It would be relevant here to quote sub-sec. (3) of S. 12 of the Act under which the disputed accommodation was held to be deemed vacant. It runs as follows:—

“12. Deemed vacancy of a building in certain cases.— Landlord or tenant of a building shall be ceased to have occupied a building or a part thereof if— (1)………….

(2)…………………

(3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy.

Explanation.— For the purpose of this sub-sec. (a) a person shall be deemed to have otherwise acquired a building, if he is occupying a built building for residential purpose, as a tenant, allottee or licensee.

(b) The expression ‘any member of the family’ relation to a tenant shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant.”

5. In the present case it is clear that on the date when the release order was passed under S. 16 of the Act releasing the disputed accommodation in favour of the landlord, respondent No. 3 in the case, there was deemed vacancy on account of the petitioner's wife having acquired another residential building in a vacant state in the same city. The petitioner challenged the order of release which came up up to the stage of this Court in Writ Petition No. 7621 of 1985 when the petitioner's writ petition was dismissed and a finality was attached to the proceedings regarding the validity of the deemed vacancy and release order passed in consequence thereof in favour of the landlord respondent No. 3. The entire proceedings regarding the challenge to the validity of the order of release came to an end with the dismissal of the petitioner's writ petition on 22-8-1985. The subsequent events that could be looked into by the Court is only during the pendency of the proceedings and not after the proceedings had come to an end. The learned counsel for the petitioner relied upon the case of Satya Prakash v. R.C and E.O, Allahabad, reported in 1986 (UP) RCC 384 where it was laid down that the Court is competent to take subsequent events into consideration. In that case during the pendency of the writ petition itself the tenant had become the owner of the disputed accommodation and hence it was held that this subsequent event during the pendency of the writ petition was to be taken into consideration by the Court. In the present case the petitioner's writ petition was already dismissed on 22-8-1985 and nothing remained pending when the subsequent event occurred. The petitioner also relied on the case of M.M Quasim v. Manohar Lal Sharma, reported in (1981) 3 SCC 36 : AIR 1981 SC 1113 where at the stage of the appeal, the plaintiff lost his interest in the property as co-owner as a result of the decree in a partition suit and in that context it was held that the appellate court can take notice of this subsequent event and mould the relief accordingly. It was held that since appeal was the continuation of suit, the appellate Court is competent to take notice of the subsequent event. This case is also of no assistance to the learned Counsel for the petitioner as the subsequent event taken note of in the case cited was during the pendency of the appeal. The learned Counsel for the petitioner then placed reliance on the case of P. Venkateswarlu v. Motor and General Traders reported in (1975) 1 SCC 770 : AIR 1975 SC 1409 where also it was held that the revisional Court could take cognizance of subsequent events. There, the revision was pending in the High Court and it was held that the High Court was competent to take note of the subsequent event in disposing of the proceedings. Hence this case is also of no assistance to the learned counsel for the petitioner. The cases cited by the learned Counsel for the petitioner relate to happening of subsequent event during the pendency of appeal revision or writ but in the present case after the writ petition filed by the petitioner was already dismissed on 22-8-1985, nothing remained pending.

6. The learned counsel for the respondent, on the other hand, relied on the case of Rajendra Prasad v. IXth Addl. District Judge, Kanpur, reported in 1982 (UP) RCC 265 : (1981 All LI NOC 6) where also the deemed vacancy had occurred on account of the tenant's taking another premises for residential purposes. It was held that it was on account of taking another building that a vacancy would be deemed to have occurred under S. 12 of U.P Act. No. 13 of 1972. Since the vacancy occurred the moment the tenant obtained another premises, subsequent change would not be relevant. It was held that:—

“The date relevant for applying S. 12 is a date on which the vacancy occurred and not the subsequent factor subsequent user of the property.”

7. The learned counsel for the respondent also relied on the case of Mohammad Nazir v. Haji Abdul Shakur, reported in 1976 All WC 390. It was observed in that case that:—

“The only relevant factor is that a tenant or a member of his family should have acquired in a vacant state a residential building. If at the time of acquisition the premises were a residential building and the same were acquired in a vacant state, the conditions of the tenancy were fulfilled. It is immaterial whether the tenant or a member of his family actually resides in that house. The fact that subsequent to the acquisition, the building may have either partly or wholly fallen down seems to be equally irrelevant. If a subsequent event of this nature were to be material for the application of the proviso, its restriction could be evaded by a tenant by letting out the residential building after acquisition in a vacant state so as to advance a plea that he was not in possession of any residential building in the same city. His being in possession or the residential building being capable of being lived in or possessed by the tenant at the time of eviction proceedings seems to be immaterial. The only material circumstance is that the tenant has acquired a residential building in a vacant state.”

8. In view of the discussions above, there are no merits in the first contention of the learned counsel for the petitioner.

9. Now coming to the second contention of the learned counsel for the petitioner that the present suit filed in the Civil Court challenging the validity of the order of release and for a permanent injunction restraining the respondents from dispossessing the petitioner from the disputed accommodation in pursuance of the release order is maintainable, it would be relevant to state here that S. 37 of the Act provides that no order made in the exercise of any power conferred by or under the U.P Act 13 of 1972 shall be called in question in any Court and a finality is attached to the order passed under the Act which cannot be questioned in any Court The petitioner has filed the suit in the Civil Court for a permanent injunction where he has challenged the validity of the release order passed in favour of respondent No. 3. The learned counsel for the petitioner relied on the case of Sudhakar Shukla v. Rajesh Kumar Agarwal, reported in (1983) 1 All Rent Cas 165 : (1983 All LJ 397) where the tenant had filed a suit for an injunction restraining the landlords from interfering with the plaintiff-tenants' repairing the tiles and walls of the tenanted premises and in that context it was held that the Civil Court had jurisdiction to entertain that suit. In that case it was observed that:—

“In the present suit no order of any special Tribunal created by Rent Control Act is being questioned or challenged. S. 37 of the Rent Control Act provides that no order made in the exercise of any power conferred by or under this Act shall be called in question in any Court. Thus the only exclusion of jurisdiction of Civil Court is confined to what S. 37 provides. This section is not attracted to the present case.”

10. Hence this case relied upon by the learned counsel for the petitioner goes against the petitioner's contention itself. Another case relied upon by the learned counsel for the petitioner is Anand Babu Agrawal v. Ayodhya Prasad Tiwari, reported in (1982) 1 All Rent Cas 175 : (1981 All LJ 1317). In that case it was held that since the order passed by the District Magistrate was contrary to the principles of natural justice and hence the same could be challenged by the Civil Court being against the fundamental principles of judicial procedure. In the present case the order of release was passed after full contest by the petitioner and its validity was upheld up to the stage of writ petition filed by the petitioner before this Court and hence the case cited by the learned counsel for the petitioner does not apply in the circumstances of the present case. The learned counsel for the petitioner also relied on the case of Smt. Abida Begum v. Rent Control and Eviction Officer, Lucknow, reported in AIR 1959 All 675 where it was held that the power of the Civil Court to question whether the order was intra vires or ultra vires of authority making it is not taken away. This case is also of no help to the petitioner. Another case relied on by the learned counsel for the petitioner is Smt. Munni Devi v. Gokal Chand, reported in 1970 All LJ 1066 : ((1969) 2 SCC 879 : AIR 1970 SC 1727) where also it was held that it is only when the order is with jurisdiction that the order is not liable to be challenged in Civil Court Hence this case is also of no help to the petitioner. Another case relied on by the learned counsel for the petitioner is Ram Swamp v. Shikar Chand, reported in AIR 1966 SC 893 where also it was held that the bar created by the relevant provisions of the Rent Control Act excluding the jurisdiction of the Civil Court cannot operate in cases where the plea raised before the Civil Court is that the impugned order is a nullity. The bar of jurisdiction of the Civil Court is excluded in matters covered by the provisions of the statute but not where the order is a nullity. No such contingency exists in the present case and hence this case is also of no avail to the petitioner's counsel. Moreover, the impugned order relates only to the question of grant of a temporary injunction and not to the maintainability of the suit and hence also it is not necessary for me to go into the question of maintainability of the suit at present.

11. The next contention of the learned counsel for the petitioner is that the petitioner is not bound by the undertaking given by the petitioner's counsel in Writ Petition No. 7621 of 1985. I have perused the copy of the vakalatnama filed by the learned counsel for the petitioner in Writ Petition No. 7621 of 1985 which clearly recites that the petitioner authorised his counsel in the writ petition to—

“Sulahnama va swikrit patra upasthit kar dawa sweekar karen ya utha leven……………………….Likhit bayan upasthit karen va Appeal ya anya koi prarthana patra upasthit karen ya shapath-patra upasthit karen ya hamari orse anya maaukhik bayan den… Ya anya ukta mukadma sambandhi jo aawashyak karya ho karen.”

12. In my opinion the recital in the ‘Vakalatnama’ shows that the petitioner's counsel was fully authorised by the petitioner to give an undertaking on petitioner's behalf and hence the petitioner is bound by the undertaking given by his counsel to vacate the premises immediately on expiry of one year and hand over peaceful possession of the same to respondent No. 3. The petitioner having taken full advantage of the undertaking given by his counsel in Writ Petition No. 7621 of 1985 and on its basis having remained in possession for one year of the disputed accommodation and also having never challenged the order passed in Writ Petition No. 7621 of 1985 for the period of one year the petitioner cannot be heard now to say that he was not bound by the undertaking given by his counsel in the writ petition. In the case of Chhagan Bhai v. Soni Chandu Bhai, reported in (1976) 2 SCC 951 : AIR 1976 SC 1909 it was held that where the appellant in that case had given a solemn undertaking to Court to hand over certain premises in his possession, on the basis of undertaking which was incorporated in the order by the Court, its breach clearly amounted to breach of an injunction of the Court and amounted even to contempt of Court. In Halsbury's Laws of England, Vol. 9, 4th Edition, paragraph 75, it has been observed as follows:—

“An undertaking given to the Court by a person or corporation in pending proceedings, on the faith of which the Court sanctions a particular course of action or inaction has the same force as an injunction made by the Court and a breach of the undertaking is misconduct amounting to contempt.”

13. This principle has been accepted by the Supreme Court in the case noted above. In the case of Giri Raj Saran v. 1st Addl. Dist. Judge reported in 1980 All Rent Cas 354 : (1980 All LJ 159) it was held that the petitioner could not be permitted to challenge the order obtained on his own initiative. In that case the court granted the release application only on an undertaking given by the petitioner. In the present case also an undertaking had been given on behalf of the petitioner in the writ petition on the basis of which he was allowed one year's time to vacate the disputed accommodation and hand over peaceful possession of the same to respondent No. 3 and the petitioner cannot be allowed to challenge the same now.

14. The last submission of the learned counsel for the petitioner is that when now the order of release is being sought to be executed by recourse to proceedings under R. 14, since the contingency of deemed vacancy had already ceased to exist after the house No. J-32, Vasant Behar had already been sold by the petitioner's wife on 3rd December, 1985, the order of release could not be enforced against the petitioner. I find no merit in this submission. The validity of the order of release had already been upheld up to the stage of this Court in writ jurisdiction. The petitioner had actually been granted one years time on the basis of an undertaking given on his behalf that the petitioner would vacate the disputed accommodation and handover peaceful possession of the same to the respondent No. 3, the landlord immediately on the expiry of one year, and hence it is not open to the petitioner to contend that the deemed vacancy had ceased to exist. In fact, in the present case the property had been sold by the petitioners wife and the petitioner is seeking to defeat the purpose of the statute by his own unscrupulous act. The petitioner has placed reliance on a case Gyanendra Verma v. District Judge, reported in (1984) 1 All Rent Cas 333 in which it was held that where a decree for eviction of a tenant was passed but not executed and hence there was no vacancy, the allotment order was liable to be set aside as on the date of making the allotment order, there was no vacancy or even proceeding in execution of a decree for ejectment pending. This case is of no help to the petitioner. The petitioner also placed reliance on the case of Lachmi Narain v. R.C and E.O, reported in 1962 All LJ 213 where also it was held that the District Magistrate has no jurisdiction to issue an allotment order simply because there was an ejectment decree even though the Court had not issued any warrant of delivery of possession and there existed no vacancy. This case also is not applicable to the present case.

15. The learned counsel for the respondent placed reliance on the case of Surendra Prakash Goel v. 1st A.D.J, reported in (1987) 1 All Rent Cas 276 : (1987 All LJ 528) where it was observed:—

“6. In my opinion, as soon as a tenant acquires in vacant State or gets vacated a residential house, a vacancy validly arises under S. 12(3) and, if after acquiring in vacant state his own residential house he lets it out or parts with its possession without any objection the effect of the vacancy so arising is not wiped out or even suspended. For the application of S. 12(3) all that is required to be established is, firstly, that the tenant builds or otherwise acquires a residential building in the same city, and, secondly, gets vacant possession of the same or gets it vacated. On the proof of these two facts, a vacancy comes into being under S. 12(3) read with S. 12(4) authorising the Rent Control Officer to allot the building under the tenancy of the tenant.

7. I do not agree with the learned counsel that the relevant point of time for applying S. 12(3) to a tenant who acquires in vacant state a residential building, is the date on which the building under his tenancy is considered for allotment. In the first place, such a construction is not supported by the language of S. 12(3). Secondly, if this contention were to be accepted an unscrupulous tenant can easily defeat the purpose of the statute which is to fight the unprecedented pressure on residential accommodation, by building or otherwise acquiring in a vacant state his own residential house in the same city and immediately thereafter letting it out on a rent of his dictation so that by the time the building which is under his tenancy comes up for being considered for allotment, he could trot out the plea that the building constructed or acquired by him in vacant state is no longer in his physical possession. Such a result could not have been intended by the legislature.

16. I am in respectful agreement with the view expressed above and in the present case also, it is not open for the petitioner to take the plea that since his wife has now sold away the house acquired by her in a vacant state, the order of release could not be executed. Relevant point for applying S. 12(3) of the Act to the tenant is when the residential building is acquired in a vacant state. The tenant by his own act, cannot defeat the purpose of the statute. This is precisely what has happened in the present case and hence the petitioner is not entitled to any indulgence by this Court in its equity jurisdiction under Art. 226 of the Constitution. In the case of Smt. Mahadevi v. Civil Judge, Farrukhabad reported in (1987) 1 All Rent Cas 406 : (1987 All LJ 870) the facts were similar. In that case also the release application of the landlord was allowed after due contest and the case became final up to the High Court. Thereafter the tenant's father woke up and started objecting to the release order passed in favour of the landlord who filed a civil suit. It was held that the Civil suit filed was nothing but an abuse of the process of a Court of highest order. The landlords writ petition was allowed and the interim injunction passed by the Civil Judge staying the order of the Prescribed Authority directing enforcement of the release order was quashed and even the proceedings in the suit pending before the Civil Judge were also quashed. Precisely the same position is in the present case where also the petitioner is not entitled to any injunction. The same view was expressed in the case of Prem Shankar Tripathi v. Ist Addl. District Judge, reported in (1986) 1 All Rent Cas 398 : (1986 All LJ 1200). It was observed there that the filing of the suit was frivolous and vexatious act and the course adopted in instituting the suit was held to be destructive of the basic principles of administration of justice and was clearly an abuse of the process of Court and against public policy. Similar view was expressed in the case of Smt. Rajkumari Kapur v. Civil Judge, Kanpur, reported in (1986) 21 All Rent Cas 469 : (1987 All LJ 137) where it was held that the continuation of suit in the Civil Court was nothing but an abuse of the process of court and the conduct of the tenant was held to be deplorable. Hence in the interest of justice the proceedings in the civil suit were quashed. A mandamus was also issued in that case to the Prescribed Authority to enforce the release order under s. 23 of the Act expeditiously, if necessary by taking the help of police force for getting the release order enforced. I am in full agreement with what has been laid down in that case. In the result there are no merits in this writ petition. It is a fit case in which the release order should be enforced forthwith. The writ petition is dismissed with costs.

17. Petition dismissed.

Mahendra Singh v. Xth Additional District Judge

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mahendra Singh v. Xth Additional District Judge

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