Holding

The landlord was entitled to file the second application under Section 43(2)(rr), and the appeal to the Supreme Court was dismissed.

Summary

The landlord obtained permission to evict tenants under Section 3 of the 1947 U.P. Temporary Control of Rent and Eviction Act, which became final after a rejected revision. He filed a suit for eviction, which was later dismissed on a technical ground. Subsequently, relying on Section 43(2)(rr) of the 1972 U.P. Urban Buildings Act, he applied to the Prescribed Authority for enforcement of the permission, but the authority rejected the application, holding that the earlier suit exhausted the permission. The High Court set aside the authority’s order, holding that the landlord could file the second application because the first suit was not decided on merits and the 1976 amendment to Section 43(2)(rr) made the right retrospective. The Supreme Court affirmed the High Court’s view, dismissed the appeal, and held there was no scope for interference under Article 136.

Issues considered

Whether an application under Section 43(2)(rr) of the U.P. Urban Buildings Act is maintainable when the landlord has previously obtained permission under the old Act and filed a suit that was dismissed on technical grounds.
Whether the Prescribed Authority erred in holding that the permission was exhausted by the earlier suit.
Whether the High Court could set aside the order of the Prescribed Authority despite the absence of a statutory appeal, under Article 226 of the Constitution.
Whether the Supreme Court can entertain the appeal under Article 136.

Legislation cited

Constitution of Indias. 136, s. 226
U.P. (Temporary) Control of Rent and Eviction Act, 1947s. 3, s. 7-F
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 43(2)(rr)

Subjects

evictionrent controllandlord-tenantsection 43(2)(rr)finality of orderstatutory interpretationArticle 226Article 136U.P. legislation

Judgment

MOHAMMAD SWALLEH & ORS.
A
v.

HIRD ADDL. DISTRICT JUDGE, MEERUT & ANR.
*
NOVEMBER 4, 1987
B
[SABYASACHI MUKHARJI AND G.L. OZA, JJ.]
't-

c
U. P. Urban Buildings (Regulation of Letting, Rent and Eviction)
Act, 1972: s. 43(2)(rr) U.P. (Temporary) Control of Rent and Eviction
Act, 1947: s. 3-Permission for eviction granted under s. 3 of the old
Act becoming final-First suit dismissed on technical grounds-
-
Application for eviction filed un.der s. 43(2)(rr) of the new Act-
Whether maintainable. -f
Constitution 'of India, Arts. 226 & 136: Absence of provision in
Statute for appeal-Erroneous order of Prescribed Authority set aside
D by District Judge-Jurisdiction of Court to interfere with.

Sub-section (1) of s. 3 of the U.P. (Temporary) Control of Rent
and Eviction Act, 1947 barred suits without the permission of the Dis-
trict Magistrate against tenants for eviction except on the grounds
mentioned therein. Sub-section (2) provided for revision to the
E Commissioner, and sub-section (4) made the order of the Commissioner ~
final. Section 7-F empowered the State Government to interfere wjth
such orders. That Act was repealed by the U.P. Urban Buildings (Rego-
lation of Letting, Rent and Eviction) Act, 1972.
-
Section 43(2)(rr) of the new Act, inserted therein by U.P. Act 37
F of 1972, provided that where any permission obtained under s. 3 of the
old Act had become final either before the commencement of the Act or ·-.I
in accordance with the provisions of the sub-section after the comm- '
encement of the Act, the landlord may apply to the Prescribed Author-
ity for tenant's eviction. This section was against amended in 1976 by
insertion of the words "whether or not a suit for the eviction of the
G tenant has been instituted", and giving it retrospective operation. The
order of the Prescribed Authority in such cases was made final.

The landlord's application under s. 3 of the 1947 Act for eviction "!
of the tenants-appellants was granted by the Commissioner in April,.
1971. The revision preferred by them was rejected by the State Govern-
H ment in February, 1972 and the permission became final. In pursuance
840
MOHAMMAD SWALLEH v. IIIRD ADDL. DISTI. JUDGE 841

of the said permission the landlord filed a suit for eviction of the appel-
/': lants. Thereafter in 1973 he filed an application for withdrawal of the A
said suit on the ground that as the 1972 Act had been amended, he
would file an application for enforcement of the permission.

The Court of Small Causes found that as the cause of action on
which the suit had been filed was rendered infructuous, the suit was B
liable to be dismissed. The application filed by the landlord under s.
43(2)(rr) of the new Act for eviction of the appellants, was rejected by
the Prescribed Authority on the ground that since permission obtained
under s. 3 of the old Act had been exhausted, the application was not
maintainable. An appeal against that order was allowed by the District
Judge.
c
-*-· In the writ petition filed by the appellants-tenants under Art. 226
of the Constitution it was contended that the permission obtained by the
landlord having been utilised by filing the suit, another proceeding on
the basis of the said permission could not be initiated, and that no
appeal lay from the decision of the Prescribed Anthority to the District D
Jndge. The High Court held that the landlord had right to file the
second application. It took the view that dismissal of the first action
taken by the landlord after obtaining permission under the old Act did
not preclude him from taking the second action under s. 43(2)(rr) of the
Act. It further held that since the first suit was not decided on merits
Y subsequent action was not precluded. E

-- Dismissing the api)eat by special leave,

HELD: 1. Section 43(2)(rr) of the U.P. Urban Buildings (Regula-
tion of Letting, Rent and Eviction) Act, 1972 as it stood in 1973, peFmit-
ted a landlord to file an application for the enforcement of the permis- F
sion obtained by him under s. 3 of the 1947 Act. After the aforesaid
provision was amended in 1976, the landlord was not required to file a
suit to avail of the permission. The amendment was retrospective in
operation. [844G-H]

2. The Prescribed Authority was in error in taking the view that G
as the previous suit had been filed by the landlord on the basis of
permission and the same had been dismissed, the application under s.
43(2)(rr) of the 1972 Act was not maintainable. Such a view would
frustrate the very purpose of the express provision of the section which
conferred a right on a landlord who had obtained permission under the
old Act and had filed an application under the new provision, to get the H
842 SUPREME COURT REPORTS [ 1988] I S.C.R.

A tenant evicted. More so, when the permission granted had not been
exhausted because the suit was dismissed on a technical plea and not on '"
the merit of the contentions. [846C·D; 845C]

Pahlad Das v. Ganga Saran and Another, AIR 1958 Allahabad
774, approved.
B
3,1 Finality of order in judicial proceeding is one of the essential
principles which the scheme of the administration of justice must strive
for. [846D]

D.K. Soni v. P.K. Mukherjee & Ors., C.A. No. 6626 of 1983
decided on October 27, 1987. referred to.
c
3.2 In the instant caSe, through no appeal lay before the District ·--f
Judge, the High Court came to the conclusion I.hat the order of the
Prescribed Authority was invalid and improper. On that ground it
declined to interfere with the order of the District Judge in exercise of
D its jurisdiction under Art. 226 of the Constitution. Since justice has
been done by setting aside the improper order of the Prescribed
Authority, no exception can be taken to the order of the High Court.
There is, therefore, no scope for interference under Art. 136 of the
Constitution. [847A-B]

F Shri Bhagwan and Anr. v. Ram Chand and Anr., [1965] 3 SCR '(
218, inapplicable.

f'
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2107
of 1979.

From the Judgment and Order dated 22.9. 1978 of the Allahabad
--
High Court in C.M.W. No. 3857 of 1978. ~
~
Gobinda Mukhoty, Ali Ahmad, Mrs. Jayshree Ahmad, Tanveer
Ahmad, S.S. Hussain for the appellants.

G R.K. Garg and D.K. Garg for the R""pondents.

The Judgment of the Court was delivered by

SABYASACHI MUKHARJI, J. This is a tenant's appeal by
special leave. After perusing the judgment impugned and grounds
H urged, we are of the opinion, that there is no substance in this appeal
MOHAMMAD SWALLEH v. ll!RD ADDL. D!STT. JUDGE [MUKHARJl. J.] 843

on merit, though there are one or two technical breaches. This is A
certainly not a decision which should be interfered with in the exercise
of jurisdiction under Article 136 of the Constitution by this Court. The
appeal arises from the judgment and order dated 22nd September,
1978 of the High Court of Allahabad. The respondent No. 2 herein,
Smt. Murtaza Begum filed an application under section 3 of the U.P.
\Temporary) Control of Rent and Eviction Act, 1947 being U.P. Act B
No. 3 of 1947, hereinafter called the Old Act. against the appellants.
Section 3 of the said Act provides that subject to any order passed

- I
under sub-section (3) of that section, no suit shall, without the permis-
sion of the District Magistrate be filed in any court against any tenant
for his eviction from any accommodation except on the grounds
mentioned therein. Sub-section (2) of section 3 provided for revision
to the Commissioner against the order of the District Magistrate. Sub- c
t section (3) of section 3 empowered the Commissioner to hear the
application and if he was not satisfied as to the correctness, legality or
propriety of the order passed by the District Magistrate or as to regu-
larity of proceedings held before him, alter or reverse his order or
make such other order as might be just and proper. By sub-section (4) D
of section 3 the order of the Commissioner has been made final subject
to any other order passed by the State Government under section 7:F
of the said Act. Section 7-F of the said Act empowered the State
Government to call for the record of any case granting or refusing to
grant permission for the filing of a suit for eviction referred to and
authorised him to make such order as appeared to it necessary for the E
ends of justice. The application for eviction was granted by the Com-
missioner in this case on the 17th April, 1971. The appellants went in
revision to the State Government. The revision was, however,
rejected by the State Government on 7th February, 1972. The permis-
sion thereafter became final.
F
In pursuance of the aforesaid perm1ss1on the respondent--
landlord filed a suit. being suit No . .+64 of 1972 in the court of Judge,
Small Causes, Meerut, for eviction of the appellants. Thereafter in
1973 the landlord filed an application for withdrawal of the suit on the
ground that as U .P. Urban Buildings (Regulation of Letting.
Rent and Eviction) Act of :972 being U.P. Act no. :3 of :972. G
hereinafter called the New Act, had been amended, he woukf file an
application for the enforcement of the permission obtained under sec-
tion 3 of the Old Act. On that application the court found that as the
cause of action on which the suit had been filed was rendered infructu-
ous, the suit was liable to be dismissed. After the suit was dismissed
the landlord being respondent no. 2 herein filed an application unde; H
844 SUPREME COURT REPORTS [ !988] l S.C.R.

A section 43(2)(rr) of the New Act for eviction of the appellants from the
premises in question. It was resisted on the ground that the permission
had been dismissed and the application under section 43(2)(rr) was not
maintainable. The Prescribed Authority upheld the said objection of
the appellants and rejected the application filed by the landlora on the
ground that since permission obtained by the landlord under section 3
B of the U.P. Act has been exhausted, the application filed by the land-
lord was not maintainable. It appears to us that the Prescribed Author-
ity was clearly in error in so holding because the permission granted
had not been exhausted because the suit as dismissed on a technical
plea and not on the merit of the contentions. Reference may be made
to the observations in the decision of the Allahabad High Court in the
case of Pahlad Das v. Ganga Saran and Another, AIR 1958 Allahabad
C 774, where the division bench of that court held that the obvious !
purpose of the permission under section 3 of the old Act was to enable
the plaintiff, the landlord to evict the tenant from the premises and as
--t
long as that purpose was not fulfilled, the permission could not obvi-
ously exhaust itself. Where it was not shown that the permission was
D granted to file a single suit or that it had been specified in it that a
second suit could not be filed, the permission could not exhaust itself
simply because the first suit filed on its basis was dismissed on some
technical ground and the permission obtained could be availed of for
filing the second suit. In that view, the High Court affirmed the previ-
ous decision of that court.
E It appears, however, that an appeal was filed against the order of
the Prescribed Authority and the appeal was allowed by the order of
the District Judge dated 28th April, 1978. Aggrieved thereby the ten-
ants filed a writ petition before the High Court. The controversy in the
High Court was whether the application filed by the landlord under
section 43(2)(rr) of the New Act was not maintainable. The basis of '
F the ctaim of the tenant was that as the permission had been utilised by ~·
filing the suit, another proceeding on the basis of the said permission
could not be initiated. The High Court noted that section 43(2)(rr) was '
added by U.P. Act no. 37 of 1972. By the addition of the new provi-
sion, the legislature conferred a right on a landlord who had obtained
permission under the old Act and had filed an application under new
G provision to get the tenant evicted. Section 43(2)(rr' of the New Act
was again amended by the U.P. Act No. 28 of 1976. By that amend-
ment the words "whether or not a suit for the eviction of the tenant has
been instituted" were inserted. The amending Act laid down that the
amendment in the provision shall be deemed to have always been
substituted. In other words, the amendment caused amendment to be
H retrospective in operation.
MOHAMMAD SWALLEH v. llIRD ADDL. DISTT. JUDGE [MUKHARJI, J.) 845

It is, therefore, apparent as the High Court in our opinion in the A
~ judgment under appeal rightly held that section 43(2)(rr) i.e. in 1973
permitted the landlord to file an application for the enforcement of the
permission obtained by him. After the aforesaid provision was
amended, the landlord was not required to file a suit to avail of the
permission. The High Court in the judgment under appeal rejected the
contention that once an application for permission had been filed, the B
second application would not lie. The High Court held that where the
~ first suit was not decided on merits subsequent action was not pre-
cluded. The High Court noted that merits of the case were not ex-
amined by the Court. The Court in this appeal on this occasion did not
find that the permission obtained by the landlord was invalid or illegal.
1 The judgment of dismissal was thus on technical ground and not on
_.L merits. The High Court held that the landlord had right to file the C
~- second application. In our opinion, the High Court was right .for the
reasons mentioned hereinbefore.

It is next contended that since the suit was dismissed on the
ground that the cause of action did not survive to the landlord, it D
should be held that the landlord had no right left to file an application
under section 43(2)(rr). This was, in our opinion, rightly rejected by
the High Court. The High Court negatived the contention of the
tenant that dismissal of the first action taken by the landlord after
y
obtaining permission under the old Act precluded the landlord from
' taking the second action under section 43(2)(rr) of the Act. E

We are of the opinion that the High Court was right. It will be
appropriate at this stage to refer to the provisions of section 43(2)(rr)
or the New Act which are as follows:

"Where any permission referred to in Section 3 of the old F
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 G
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 ord~r shall be final and shall H
846 SUPREME COURT REPORTS [ 19881 I S.C.R.

not be open to appeal under Section 22:
A
Provided that no application under this clause. shall be
maintainable on the basis of a permission granted under
Section 3 of the old Act, where such permission became
final more than three years before the commencement .of
B ths Act:

Provided further that in computing the period of three
years, the time during which the applicant has been pro-
secuting with due diligence any civil proceeding whether in
a court of first instance or appeal or revision shall be
excluded." \
c
In view of the aforesaid, we are of the opinion that the Prescribed ·-f
Authority was clearly in error in upholding the objection of the tenant
that as the previous suit had been filed by the tenant on the basis of
permission and the same had been dismissed, the application under
D section 43(2)(rr) of the Act 13 of 1972, was not maintainable. It was
clearly erroneous contention. It would frustrate the very purpose of
the express provision of section 43(2)(rr). Finality of order in judicial
proceeding is or_1e of the essental principles which the scheme of the
administration of justice, must strive for. See in this connection the
observations of D.K. Soni v. P.K. Mukherjee & Ors., (Civil Appeal "'(
E No. 6626/83Judgment dated 27. l0.1987).

It was contended before the High Court that no appeal lay fc;:>m
the decision of the Prescribed Authority to the District Judge. The
High Court accepted-this contention. The High Court finally held that
though no appeal lay before the District Judge, the order of the Pre-
f scribed Authority was invalid and was rightly set aside by the District
Judge. On that ground the High Court declined to interfere with the
order of the learned District Judge. It is true that there has been some
technical breach because if there is no appeal maintainable before the
learned District Judge, in the appeal before the learned District Judge,
the order of the Prescribed Authority could not be set aside. But the
G High Court was exercising its jurisdiction under Article 226 of the
Constitution. The High Court had come to the conclusion that the
order of the Prescribed Authority was invalid and improper. The High
Court itself could have set it aside. Therefore in the facts and circumst-
ances of the case justice has been done though, as mentioned
hereinbefore, technically the appellant had a point that the order of
H the District Judge was illegal and improper. If we reiterate the order of
MOHAMMAD SWALLEH v. IIIRD ADDL. DISTI. JUDGE [MUKHARJI. J.] 847

the High Court as it is setting aside the order of the Prescribed Author- A
ity in exercise of the jurisdiction under Article 226 of the Constitution
then no exception can be taken. As mentioned hereinbefore, justice
has been done and as the improper order of the Prescribed Authority
has been set aside, on objection can be taken.

In the premises there is no scope for interference under Article B
136 of the Constitution. Our attention was drawn to certain observa-
tions of this Court about the power of the State Government under
section 7-F of the old Act in Shri Bhagwan andAnr. v. Ram Chand and
Anr., [ 1965] 3 SCR 218. In the view, we have taken of the facts of this
case, it is not necessary to deal with this decision in any detail.
I C
-.L_ In the aforesaid view of the matter, this appeal must fail and is
1--accordingly dismissed. In the facts and circumstances of the case, we
however, make no order as to costs.

P.S.S. Appeal dismissed.

-