Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
PRALHAD LALCHAND CHAVAN
Vs.
RESPONDENT:
IQBAL HUSSAIN INAYAT HUSSAIN BADRI
DATE OF JUDGMENT: 26/07/1996
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
NANAVATI G.T. (J)
CITATION:
1996 SCALE (5)618
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.C. Agrawal j.
Special leave granted.
This appeal by the landlord arises out of a suit for
eviction from premises governed by the provisions of the
Central Provinces and Berar Regulation of Letting of
Accommodation Act, 1946 Act, 1946 (hereinafter referred to
as ’the Act’) and the Central provinces and Berar Letting of
Houses and Rent Control Order, 1949 (hereinafter referred to
as ’ the Rent Control Order’)
The Rent Control Order has been made in exercise of the
power conferred by Section 2 of the Act which empowers the
State Government by general or special order to provide for
regulating the letting and sub-letting of any accommodation
or class of accommodation whether residential or non-
residential. Clause (b) of Section 2 of the Act prescribes
that such order may provide for preventing the prescribes
that such order may provide for preventing the eviction of
tenants or sub-tenants from such accommodation in specified
circumstances. In clause 13 of the Rent Control Order
provision has been made for the protection of a tenants
against the eviction. The relevant parts of the said clause
are reproduced below :-
"13(1) No landlord shall, except
with the previous written
permission of the Controller :-
(a) give notice to tenants
determining the lease or determine
the lease if the lease is expressed
to be determinable at his option ;
or
(b) whether the lease is
determinable by efflux of the time
limited thereby require the tenant
to vacate the house by process of
law or otherwise if the tenant is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
willing to continue the lease on
the same terms and conditions.
xxx xxx xxx xxx xxx
(3) If after hearing the parties
the Controller is satisfied :-
xxx xxx xxx xxx xxx
(iv) that the tenant has used the
house or premisses or any part
thereof for a purpose other than
that for which it was leased ; or
xxx xxx xxx xxx xxx
(vi) that the landlord needs the
house or a portion thereof for the
purpose of his bonafide residence,
provided he is not occupying any
other residential house of his own
in the city or town concerned; or
xxx xxx xxx xxx xxx
he shall grant the landlord
permission to give notice to
determine the lease as required by
sub-clause (1)."
On April 18, 1985 the appellant submitted an
application before the Rent Controller for grant of
permission to issue a notice terminating the lease of the
respondent. The appellant sought the permission on grounds
(VI) and (VI) of sub-clause (3) of clause 13 of the Rent
Control Order. The said application of the appellant was
rejected by the Rent Controller by order dated December 29,
1987. The appeal filed by the appellant against the said was
allowed by the Rent Control Appellate Authority by order
dated December 13, 1988 and necessary permission to issue
notice terminating the lease was granted under ground (vi)
of sub-clause (3) of clause 13 of the Rent Control Order,
i.e. the landlord needs the house or a portion thereof for
the purpose of his bonafide residence, provided he is not
occupying any other residential house of his own in the city
or town concerned, Feeling aggrieved by the order of the
Rent Control Appellate Authority dated December 16, 1988 the
respondent moved the High Court of Bombay, Nagpur Bench,
Nagpur by filing Writ Petition No 1745 of 1989. The said
writ petition was dismissed by the learned single Judge of
the High Court by Judgment dated August 8, 1989. The
petition filed for review of the said judgment was dismissed
by the learned single Judge by order dated November 29,
1990. Thereafter, the respondent filed a Letters Patent
Appeal Against the Judgment of the learned single Judge,
which was dismissed by the Division Bench of the High Court.
The petition for special leave to appeal against the
judgment of the Division Bench was dismissed by this Court.
As a result the Order granting permission by this Court. as
result the order granting permission under clause 13 of the
Rent Control Order, to issue a notice terminating the lease
of the respondent, become final.
In the meanwhile after passing of the order the Rent
Control Appellate Authority dated December 16, 1988 granting
permission to issue a notice terminating the lease, the
appellant, on March 3, 1989, issued a notice under Section
106 of the Transfer of Property Act terminating the lease of
the respondent by the end of April 1989 and asking him to
hand over vacant possession of the premises on the date of
termination of the lease. Since the respondent failed to
comply with the said notice and did not deliver possession
of the premises, the appellant, on May 2, 1989, filed a suit
(Civil Suit No. 100 of 1989) in the Court of Civil Judge,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
Junior Division, Amravati for eviction of the respondent.
The said suit of the appellant was decreed by the Civil
Judge, by Judgment dated January 31, 1990 and the respondent
was directed to vacate the premises and hand over vacate
possession to the appellant. The appeal filed by the
respondent against the said decree of the trial court was
dismissed by the district Judge, Amravati by Judgment dated
March 24, 1994, Thereafter, the respondent filed Civil
Revision Application No 616 of 1994 in the High Court which
was allowed by the impugned Judgment dated July 18, 1994 on
the view that which deciding the appeal the appellate court
failed to consider the subsequent events namely that during
the pendency of the litigation the appellant had purchased
another house and had started residing there and thereby the
requirement of the appellant was fulfilled. According to the
High Court the landlord secured permission for his bona fide
requirement, but during the pendency of the litigation
especially in the eviction proceedings, subsequent events
regarding the purchase of alternative accommodation occurred
and that this aspect has to be taken into consideration. The
High Court, therefore, while setting aside the Judgment of
the Additional District Judge with a direction to consider
the subsequent events and adjudicate the matter accordingly.
Feeling aggrieved by the said judgment of the High Court the
appellant has filed this appeal.
Shri V.A. Mohta, the learned senior counsel appearing
for the appellant, has urged that the scheme of the Rent
Control Order is that the protection against eviction that
is available to the tenant under clause 13 of the Rent
Control Order whereby the landlord is required to obtain the
permission of the Rent Controller before issuing a notice
terminating the tenancy and such permission can be granted
only on a ground mentioned in sub-clause (3) of clause (13
of the Rent Control Order, Shri Mohta has submitted that the
order of the Rent Controller granting permission under
clause 13 can be challenged before the Rent Control
Appellate Authority in appeal under sub-clause (3) 21 and
that no further appeal, revision or application for review
lies from the decision of the Rent Control Appellate
Authority to any other authority whatsoever. Shri Mohata has
pointed out that under Section 7 of the Act the jurisdiction
of civil courts is barred in respect of any order passed by
an officer or authority under an order made under Section 2
the Act and, therefore, the order granting permission under
clause 13 of the Rent Control Order is not open to challenge
challenged by filing a writ petition under Article 226 of
the Constitution before the High Court, The respondent had
available the said remedy under Article 226 of the
Constitution by filing a writ petition which petition was
dismissed by the learned single Judge and the said judgment
of the learned single judge was affirmed in Letters Patent
Appeal by the Division Bench and the petition filed for
special leave to appeal against the said judgment was also
dismissed by this Court, As a result, the order granting
permission under clause 13(3)(vi) of the Rent Control Order
became final and a party cannot be permitted to go behind
the order granting permission and to reagitate the question
whether the appellant is entitled to seek eviction of the
respondent from the premises of his bona fide residence,
Shri Mohta has placed reliance on the decision of the
Division Bench of the High Court in R.P. Ghosh VS.
Pramilabai Ravindra Puri and Ors, 1976 Maharashtra Law
Journal 828, and the observation of this Court in Benilal
(deed) by Lrs. vs. State of Maharashtra and Ors. 1995 Suppl.
(1) SCC 235.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
Shri S. Balakrishnan, the learned counsel appearing for
the respondent, has submitted that grant of permission to
the landlord to issued a notice terminating the tenancy
under clause 13(3) of the Rent Control Order does not
preclude the tenant from showing that in view of the
subsequent events that have occurred after the grant of such
permission , the need of the landlord for the premises no
longer subsists and he is not entitled to seek eviction of
the tenant. Shri Balakrishnan has laid emphasis on the
object underlying the protection Against eviction given to
the tenants under clause 13 of the Rent Control Order and
has submitted that to deny to the tenant and opportunity to
relay upon subsequent events occurring after the grant of
permission would not be in consonance with the decisions of
this Court wherein subsequent events have been taken note by
this Court in the context of proceedings for eviction of the
tenant on the ground of bonafide need of the landlord.
A perusal of the provisions contained in clause 13 of
the Rent Control Order shows that the nature of protection
which has been conferred on the tenant under the said clause
differs from the protection given to the tenant under other
similar rent control laws in other States. In most of the
rent control laws in force protection against eviction is
conferred on the tenant by imposing the requirement that no
decree for eviction shall be passed against the tenant
except on certain specified grounds or no suit for eviction
by the tenant would be filed except on certain specified
grounds. Such laws envisage a single judicial proceeding in
which the landlord is required to make out a case for
eviction of the tenant on the basis of any one of the
specified grounds and the decree or order for eviction
passed by the civil court or the Rent Controller is subject
to an appeal or revision and a further appeal or revision in
the High Court. The Rent Control Order, However, envisage to
separate proceedings. One is the proceeding before the Rent
Controller under clause 13 of the Rent Control Order for
grant of permission to issue a notice terminating his
tenancy which order is subject to appeal before the Rent
Control Appellate Authority and Judicial review by the High
Court under Article 226 of the Constitution. In the event of
grant of permission to issue the notice terminating the
lease, the proceedings under clause 13 of the Rent Control
Order are followed by a second proceeding, viz., a suit for
eviction after the landlord has terminated the tenancy by
issuing a notice in accordance with the provisions of
Section 106 the Transfer of Property Act. By clause 13 of
the Rent Control Order a bar is placed on the right of the
landlord to terminate the tenancy of tenant by requiring him
to obtain the necessary permission in that regard form the
Rent controller and such permission can be granted only if
any of the grounds specified in sub-clause (3) of clause 13
is made out. In other words under clause 13 that bar that is
placed on the right of the landlord to terminate the tenancy
of the tenant is lifted when permission to issue notice is
granted and therefore the landlord can proceed to terminate
the tenancy in accordance with Section 106 of the transfer
of property Act and in the event of the tenant not vacating
the premises after the termination of the tenancy by such a
notice, the landlord can seek the eviction of the tenant
filing a suit on the ground that the tenancy having been
terminated under Section 106 of the Transfer of Property Act
the tenant has no right to remain in occupation. In the said
suit the validity of the order granting permissing cannot be
assailed by the tenant in view of the bar created by Section
7 of the Act read with clause 21(3) of the Rent Control
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
Order.
Shri Balakrishnan does dispute that it is not open the
respondent to assail the Correctness of the Order granting
permission under clause 13 of the Rent Control Order
granting permission under clause 13 of the Rent Control
Order and that the court dealing with the suit or
appeal/revision is obliged to take to take into account such
subsequent event. In our view this contention cannot be
accepted. Having regard to the fact that the protection that
is available under clause 13 of the Rent Control Order is
confined to the first proceeding governing grant of
permission to issue a notice for terminating the tenancy and
the tenant having been found not entitled to such protection
on account of grant of such permission under clause 13 of
the Rent Clause 13 of the Rent Control Order and the said
order having become final, it is not open to the tenant to
reagitate the said question in the subsequent proceeding,
viz., the suit for eviction, and invoke the protection
available under clause 13 in the suit filed by the landlord
against the tenant after the tenancy has been terminated on
the basis of the permission granted under Clause 13 of the
Rent Control Order. The Scope of inquiry in the subsequent
suit is limited to the scope of inquiry in the subsequent
suit is limited to the question whether permission to issue
a notice to terminate the tenancy has been granted under
clause 13 of the Rent Control Order and if so whether the
tenancy has been validly terminated in accordance with the
provisions of Section 106 of the Transfer of Property Act
and the tenant has lost the right to remain in occupation of
the premises let out him.
In R.P. Ghosh v. Pramilabai Ravindra Puri and others
(supra) a Division Bench of the Bombay High Court has taken
the same view. In that case permission had been granted by
the Rent Controller to serve a notice terminating the
tenancy under clause 13 of the Rent Control Order on the
ground that the premises were required by the landlord for
his bona fide personal occupation and an appeal against the
said order had been dismissed by the appellate authority.
The landlord had issued a notice to the tenant under Section
106 of the Transfer of Property Act. Thereafter the original
landlord died and his legal representatives filed a suit for
eviction. It was urged that since the ground on which
permission was granted was personal to the landlord and in
view of the death of the original landlord the cause of the
action did not survive and the permission granted by the
Rent Controller stood exhausted with the death of the
original landlord and that it was obligatory on the part of
the legal permission had not been obtained from the Rent
Controller by the legal representatives of the deceased
landlord, the suit was not maintainable. The said contention
was negatived by the Division Bench of the High Court. The
High Court held that once permission is granted under clause
13 of the Rent Control Order by the Rent Controller, then
the landlord is at liberty to serve notice upon the tenant
terminating his tenancy as per provisions of the Transfer of
Property Act and it is the Transfer of Property Act and it
is the Transfer of Property Act which then applied and the
provisions of the Rent Control Order do not come into play
nor they could affect the question of notice to quit, its
requirement or its service etc. once a valid permission from
the Rent Controller is obtained. The learned Judges have
said :
"The Rent Control Order only
provides that such a notice cannot
be given unless a written
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
permission down any further
condition as far as the quit notice
under Section 106 of the Transfer
of Property Act is concerned. The
filing of a suit for ejectment is
an independent action. The combined
effect of this is that is
contemplates two distinct
proceedings, one relating to
granting of a written permission by
the Rent Controller provisions
notice to determine the lease under
the provisions of the Rent Control
Order and thereafter filing of a
suit for ejectment before a
competent civil court after giving
necessary notice under Section 106
of the Transfer of Property Act.
The Rent Controller of the
authority constituted under the
Rent Control Order has no authority
jurisdiction to eject a tenant or
deliver possession of the property
to the landlord. This is the
province of a civil Court. The
filing of the ejectment suit after
giving a notice under Section 106
of the Transfer of Property act is
not the Continuation of the
proceeding which is governed by the
Code of Civil Procedure and the
Transfer of Property Act."
[p. 832]
"Obviously exclusive jurisdiction
is vested upon the Rent Control
authorities to decide the rights of
the parties arising out of the Rent
Control Order. A decision of the
Rent Controller in this behalf is
binding upon a civil Court and it
is not open for the civil Court to
go behind the said Order."
[p. 834]
"Once it is held that the decision
of the Rent Controller so far as it
relates to the matter within his
exclusive jurisdiction is
concerned, is final and could not
be challenged in the suit or in any
collateral proceedings, then, in
our opinion, the same matter cannot
be reopened in a civil suit
instituted by the land lord after
obtaining a permission from the
Rent Controller. So far as a suit
for ejectment is concerned, the
cause of action is not the ground
on which the permission is granted
by the Rent Controller, but the
termination of the tenancy of the
tenant under the provisions of the
tenancy of the tenant under the
provisions of the Transfer of
Property Act. The same gives of the
Transfer of Property Act. The same
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
gives an occasion for and forms the
foundation of the suit. So far as
the ejectment suit concerned, the
grounds of ejectment are
irrelevant. To such a suit the
provisions of the Civil Procedure
Code and Transfer of Property Act
will apply and not the provisions
of the Rent Control Order."
[p. 835]
We are in agreement with the said view of the High
Court. It appears that the said decision was not brought to
the notice of the learned judge who decided this matter.
This Principle that subsequent events should be taken
into account by the court while passing a decree can have a
limited application in a case like the present one involving
two independent proceedings. It would apply at the stage of
the firs proceeding relating to the grant of permission but
would have no application after the order passed in the
first proceeding has attained finality. Once the decree or
order has become final the tenant is precluded from saying
that in view of subsequent events the need or requirement no
more existed, [See : Hasmat Rai & Anr. v. Reghunath Prasad,
1981 (3) SCR 605, at p. 617; D.K. Soni v. P.K. Mukherjee and
Others, 1988 (1) SCC 29, at [p.32]
For the reasons aforementioned, we are of the view that
the High Court was in err in holding that the lower
appellate court was obliged to take into account the
subsequent events regarding the purchase of alternative
accommodation by the appellant and in setting aside the
Judgment of the Additional District Judge and remanding the
matter for reconsideration to the said Court. Since, in our
opinion, it was not permissible in proceedings arising out a
suit for eviction to take into account the subsequent events
having a bearing on order granting permission under clause
13 of Rent Control Order on the ground of bonafide need of
the appellant, the said Judgment of the High Court cannot be
upheld and has to be set aside.
Before we conclude we must say that the existing
provisions under the Act and the Rent Control Order relating
to eviction of tenant requiring to proceedings - one for
grant of permission to issue the notice terminating the
tenancy to be followed by regular suit for eviction no only
lead to multiplicity of proceedings but also cause undue
hardship to the parties. It is high time that the
Legislature gives a fresh look to the said provisions and
brings the law in this field in tune with other similar
legislations applicable in other parts of the Country.
In the result, the appeal is allowed, the judgment of
the High Court dated July 18, 1994 is set aside and, while
dismissing the revision petition filed by the respondent,
the Judgment and Order dated March 24, 1994 passed by the
Additional District Judge, Amravati is restored. In the
facts and circumstances of the case, there will be no order
as to costs.