Deshraj versus Akhtar Hussain

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l S.C.R. SUPREME COURT REPORTS 665

DESHRAJ

v.

September I2.

AKHTAR HUSSAIN

(B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDRAGADKAR, IC SuBBA RAO and K. N. WANCHoo, JJ.)

¶7

Rent, fixation of-Suit filed under ordinance after due notice -Ordinance replaced by Act-Plaint returned-Fresh suit filedWhether fresh notice necessary-United State of Gwalior, Indore and Malwa (Madhya Bharat) Accommodation Control Act, Samvat 2006 (iU. B. IS of r950), s. 7(2).

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)

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The appellant, after due notice to the respondent, had filed a suit for fixation of rent under the 'provisions of the Accommodation Control Ordinance Madhya Bharat. In the meantime the Accommodation Control Act (M .. P. rs of r9So} came into force and the plaint filed by the appellant was returned. The appellant without serving a second notice filed a fresh suit under the Act, which was decreed.

¶10

The respondent contended that a suit could not be instituted under the Act without a fresh notice, because of s. 7(2) of the Act.

¶11

Held, thats. 7(2) of the Accommodation Control Act (M. P. rs of 1950) contemplates that a notice should be given but there arc no words in the section which made it obligatory that the notice should be issued in terms as uridei- the Act and be given after the Act came into force. In the instant case it cannot be said that the notice which was giveri by the appellant was not a proper notice.

¶12

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 24 of 1956.

¶13

Appeal by special leave from 'the judgment and order dated March 31, 1954, of the former Madhya Bharat High Court in Civil Revision No. 183 of 1952. I. 1lf. Lal and A.G. Ratnaparkhi, for th~ appellant. Rameshwar Nath and S. N. Andley, for the respondent. .

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September 12. The Judgment of the Court wa·s delivered by

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KAPUR J.-Tbis is an appeal against the judgment and order of the High Court of Madhya Bharat at Gwalior and arises out of proceedings between a land· lord and his tenant taken under the Accommodation

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I \

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666 SUPREJllE COURT REPOHTS [HJ61]

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\

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Control Act (XV of 1950) which, for the sake of hrevit.y, will be termed the Act.

¶20

]Jtshra.f v. On March 14, 1948, the appellant took two houses in Akhtar }{14$S(liu :lforar from the respondent at a monthly rental of Hs. 80 plus other charges nt Rs. 5 per month.

¶21

On October 20, 1948, the appellant brought a suit for fixation of rent in t.he court of thP. Cantonment Magistrate at Morar under the proviRions of Accommo. dation Control Ordinance (Ordinance XX of 2()()4.S.). The Act was passed on January 2fi, 1950, and came into force on February IO, 1950. Because of the passing of the Act the plaint was returned on i\larch 20, 1950, for want of jurisdiction. Thereupon on April 28, 1950, the appellant filed the suit before the Rent Controller out of which this appeal haH ariso11. In tho suit he prayed for the fixation of fair rent at Rs. 20 per month. The respondent pleaded inter alia that the suit. could not be instituted before the Rent Controller and that the suit was incompetent because no notice under s. 7(2) of the Act had been given.

¶22

Kapur ].

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Both the pleas of the respondent were overruled and the Rent Controller held th~t the 11oticc which the appellant had gfren prior to the institution of the first suit was a proper notice and he decreed the suit and fixed the fair rent at Rs. 483 per annum. The respondent took an appeal to the District Judge who upheld the order of the Rent Controller but the question of notice under s. 7 was not raised in that court. The respondent then filed a Revision Petition in the High Court under s. 115 of the Code of Civil Procedure and under Art. 227 of the Constitution. The High Court held that notice under s. 7 was a condition precedent to the institution of the suit ; that as no such notice was given the Rent Colltroller had no jurisdiction to make the order. The High Court also held that the Rent Controller had passed a decree which operated retrospectively from the date of the execution of the lease deed which the Controller had no authority to decree. It was further held that the original suit was properly instituted in the civil court and the passing of the Act did not take away the jurisdiction of that court and therefore the civil court should not have returned the plaint of the appellant.

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1 s.c.R. SUPREME COURT REPORTS

¶25

667

¶26

The. principal question for decision is whether a suit could be instituted without a fresh notice because of s. 7(2) of the Act ? That section provides :

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1960 De~'.raj Akhtar Hussain

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"Where no rent for any such accomodation bas Akhtar Hussain been agreed upon or where the lan<llord wishes to enhance, or the tenant wishes to reduce the rent · Kapur J. agreed upon, the landlord or the tenant, as the case may be, by giving notice in writing to the other party shall proceed for having the .rent fixed under subsection (4) ".

¶29

All that this· section contemplates is that a notice should be given. There are no words which make it obligatory that the· notice should be issued in terms as under the Act and be given after the Act came into force nor bas it prescribed any particular form. The trial court held that a proper notice had been given and therefore s. 7 was applicable. No such question was raised in appeal before the District Judge and therefore it was not adjudicated upon. The question however was raised before the High Court. In our opinioi;i it cannot be said that the notice which was given by the appellant was not a proper notice nor does the section mean, as contended by the respondent, that the notice had to be given as under and after the Act came into force. As we have said above it is significant that this point was never taken before the District Judge.

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Lastly the High Court held Lhat the· plaint should not have been returned by the civil court because ,tho suit for fixation of fair rent · related also to a period prior to the Act. Fairly construed· the order of the Rent Controller does not operate retrospectively from the date of the beginning of the lease but appears to us to be prospective and after the coming into opera. tion of the Act the jurisdiction was vested in the Rent Controller and not in the civil court. This point therefore has no substance.

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In t.he result this appeal is allowed and the judgment and order of the High Court are set asfde and that of the trial court restored. The appellant will . :..ave his costs throughout. · . ·

¶32

Appeal allowed.

Deshraj v. Akhtar Hussain

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