Khalil Ullah Khan Vs. Ivth Additional District Judge, Allahabad and Others

Khalil Ullah Khan vs ivth Additional District Judge, Allahabad and Others

Type Court Judgment Court Allahabad Decided Nov 18, 1998

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Citation: sooperkanoon.com/485840
Court: Allahabad High Court
Judge: Sudhir Narain, J.
Decided On: Nov 18, 1998
Case Number: C.M.W.P. No. 379 of 1982
Subject: Tenancy

Case Summary

AI-generated summary - not the official court judgment text.

Tenancy - interpretation - Section 3 of U.P. (Temporary) Control of Rent and Eviction Act, 1947, Sections 21 and 43(2)(rr) of U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972, Section 15 proviso of Provincial Small Causes Courts Act, 1887 and Section 9 of U.P. Civil Laws (Amendment) Act, 19...

Key legal issue: Tenancy
Acts & sections: Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3 and 7C; Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 21, 21 (1) and...

Parties & Advocates

Appellant / Petitioner

Khalil Ullah Khan

Advocate M.A. Qadeer, Adv.

Respondent

ivth Additional District Judge, Allahabad and Others

Advocate S.C., ;R.S. Srivastava and ;M.S. Haq, Advs.

Legal References

Acts: Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3 and 7C; Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 21, 21 (1) and (2), 22, 23, 43 and 43 (2); Provincial Small Causes Court Act, 1887 - Sections 15; Uttar Pradesh Civil Laws (Amendment) Act, 1972 - Sections 2 and 9
Reported In: 1998(4)AWC558

Excerpt

tenancy - interpretation - section 3 of u.p. (temporary) control of rent and eviction act, 1947, sections 21 and 43(2)(rr) of u.p. urban buildings ( regulation of letting, rent and eviction) act, 1972, section 15 proviso of provincial small causes courts act, 1887 and section 9 of u.p. civil laws (amendment) act, 1972 - application by landlord under section 21 - direction - suit filed in court of munsif transferred to court of judge small causes - held, valid. - - 1947. the rent control and eviction officer had granted permission on 2.1.1969. this permission was finally affirmed by the state government on 5.2.1971. the landlords terminated the tenancy by notice dated 5.3.1970 which was served on the petitioner on 7.5.1970. it was further alleged that the defendant failed to pay arrears of rent as demanded in the notice and he had also committed default in payment of arrears of rent. this provision clearly permits the continuance of a suit and the suit is to be concluded in accordance with the old act......the commencement of the u. p. civil laws amendment act, 1972 may be continued and concluded in accordance with the old act which shall, for that purpose, be deemed to continue to be in force.this provision clearly permits the continuance of a suit and the suit is to be concluded in accordance with the old act. the suit filed by plaintiff-respondents was to be continued and would be concluded in accordance with the provisions of the old act. as regards section 43 (2) (rr), this only permits the landlord to file an application under section 21 of the act. it is only enabling provision for the landlord to file an application under section 21 of the act. if he so chooses, it will not be necessary for him to continue the suit and if the order is passed under section 21 of the act. such order can be executed under section 23 of the said act. the provision to file an application under section 21 of the act is only a directory. the words used are 'landlord may apply to the prescribed authority'. this provision is not mandatory. the ordinary meaning of the word 'may' is to be given effect to unless there is any other compelling reason to come to the conclusion that the word 'may' should be read as 'shall'. i do not find any reason to take the view that this word 'may' should be read as 'shall'.5. the next submission of the learned counsel for the petitioner is that the plaintiff-respondents filed the suit in the court of munsif in the year 1971 and the suit was, later on, transferred to the court of judge small causes on 9.12.1972 from the court of munsif but such suit should have been tried by the court of munsif as section 43 (r) provides that if a suit is pending before the commencement of u. p. civil laws amendment act, 1972 may be continued and concluded in accordance with the old act. a proviso was added in section 15 of the provincial causes court act, 1887 by section 2 of the u. p. civil laws amendment act, 1972 whereby the suits for eviction by a lessor.....

Full Judgment

Sudhir Narain, J.

1. This writ petition is directed against the judgment and decree dated 7.4.1976 passed by Judge Small Causes Court. Allahabad respondent No, 2 decreeing the suit of the plaintiff-respondents for recovery of arrears of rent, ejectment and damages and the judgment of the appellate authority-respondent No. 1 dated 21.12.1981 dismissing the revision against the aforesaid order.

2. The facts, in brief, are that the plaintiff-respondents filed Suit No. 186 of 1971 on the allegations that they are the landlords of the disputed accommodation. The petitioner was a tenant of the disputed portion. They had-applied for permission to institute the suit against the petitioner for eviction before the District Magistrate under Section 3 of U. P. (Temporary) Control of Rent and Eviction Act. 1947. The Rent Control and Eviction Officer had granted permission on 2.1.1969. This permission was finally affirmed by the State Government on 5.2.1971. The landlords terminated the tenancy by notice dated 5.3.1970 which was served on the petitioner on 7.5.1970. It was further alleged that the defendant failed to pay arrears of rent as demanded in the notice and he had also committed default in payment of arrears of rent. The case was contested by the petitioner. He alleged that the notice was invalid. He never committed any default. The landlords refused to accept the rent and the petitioner deposited the amount in Court under Section 7C of U. P. Act No. III of 1947.

3. The Judge Small Causes Court recorded a finding that the petitioner did not commit any default. It was further held that the suit for ejectment was liable to be decreed in view of the permission granted by the State Government. The petitioner filed a revision against the said order which was dismissed by respondent No. 1 vide impugned order dated 21.12.1981.

4. Sri M. A. Qadeer, learned counsel for the petitioner urged that the suit has been decreed on the basis of the permission granted by the RentControl and Eviction Officer on 2.1.1969. The suit was filed in the year 1971, The U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972) came into force on 20.9.1972. Section 43 (2) (rr) provides that where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in sub-section (1) or sub-section (2) of Section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub-section, after the commencement of this Act, (whether or not a suit for the eviction of the tenant has been instituted), the landlord may apply to the prescribed authority for his eviction under Section 21 of the Act. It is contended that if the landlords intended to evict the petitioner, they should have filed an applicalion under Section 21 of the Act. It is necessary to refer Section 43 (2) (rr) of the Act which reads as under :

'Where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in sub-section (1) or sub-section (2) of Section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub-section, after the commencement of this Act. (whether or not a suit for the eviction of the tenant has been instituted), the landlord may apply to the prescribed authority for his eviction under Section 21. and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under Section 22.'

Sub-section (2) provides that any suit for the eviction of a tenant instituted with the permission referred to in Section 3 of the old Act or any proceeding arising out of such suit, pending immediately before the commencement of the U. P. Civil Laws Amendment Act, 1972 may be continued and concluded in accordance with the old Act which shall, for that purpose, be deemed to continue to be in force.

This provision clearly permits the continuance of a suit and the suit is to be concluded in accordance with the old Act. The suit filed by plaintiff-respondents was to be continued and would be concluded in accordance with the provisions of the old Act. As regards Section 43 (2) (rr), this only permits the landlord to file an application under Section 21 of the Act. It is only enabling provision for the landlord to file an application under Section 21 of the Act. If he so chooses, it will not be necessary for him to continue the suit and if the order is passed under Section 21 of the Act. such order can be executed under Section 23 of the said Act. The provision to file an application under Section 21 of the Act is only a directory. The words used are 'landlord may apply to the prescribed authority'. This provision is not mandatory. The ordinary meaning of the word 'may' is to be given effect to unless there is any other compelling reason to come to the conclusion that the word 'may' should be read as 'shall'. I do not find any reason to take the view that this word 'may' should be read as 'shall'.

5. The next submission of the learned counsel for the petitioner is that the plaintiff-respondents filed the suit in the Court of Munsif in the year 1971 and the suit was, later on, transferred to the Court of Judge Small Causes on 9.12.1972 from the Court of Munsif but such suit should have been tried by the Court of Munsif as Section 43 (r) provides that if a suit is pending before the commencement of U. P. Civil Laws Amendment Act, 1972 may be continued and concluded in accordance with the old Act. A proviso was added in Section 15 of the Provincial Causes Court Act, 1887 by Section 2 of the U. P. Civil Laws Amendment Act, 1972 whereby the suits for eviction by a lessor after determination of the lease of the tenant and recovery of rent and damages was to be instituted in the Court of Judge Small Causes Court. Section 9 of this Actfurther provides that the suits, which were pending in the Court of Civil Judge or Munsif in respect of such suits and the evidence has not been concluded, such suits shall stand transferred to such Court having jurisdiction to decide the suit. In view of this provision, the suit was rightly transferred from the Court of Munsif to the Court of Judge Small Causes.

6. The last submission of the learned counsel for the petitioner is that the notice sent by the landlord-respondents is invalid. A copy of the notice has been annexed to the writ petition. I do not find any legal infirmity in such notice.

7. There is no merit in the writ petition. It is, accordingly, dismissedwith costs.

Same Court & Year Allahabad · 1998 Same Parties Khalil Ullah Khan vs ivth Additional District Judge, Allahaba... Same Subject Tenancy Same Judge Sudhir Narain, J. Acts & Sections Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1...

Tenancy