Madhya Pradesh High Court
Prem Narayan And Anr. vs Prabhoo Dayal on 26 February, 1959
Equivalent citations: AIR1960MP22, AIR 1960 MADHYA PRADESH 22, 1960 MPLJ 209 1959 JABLJ 430, 1959 JABLJ 430
JUDGMENT Naik, J.
1. (On difference between A.H. Khan and H.R. Krishnan JJ.). This case comes before me on a difference of opinion between Khan, J. and Krishnan, J., on the question of interpretation of Section 7(2) of the Gwailor, Indore and Malwa United State (Madhva Bharat), Sthan Niyantran Vidhan, Samvat 2006 (Madhya Bharat Act No. 15 of 1950), hereinafter referred to as the 'Madhya Bharat Act'.
2. The facts relevant for the purpose may shortly be stated. The petitioners are the landlords, while the respondent is the tenant of certain premises situate in Murar (former Gwalior State). In 1948, the Sthan Niyantran Visheshagya, Gwalior State, Samavt 2004 (hereinafter referred to as the Gwalior Ordinance) was in force in the Gwalior State. The Gwalior Ordinance provided that if for any reason the landlord or the tenant, as the case may be, claimed that the rent was inadequate or excessive, he might institute a suit for fixation of rent in the Court of the Sub-Judge having jurisdiction as provided in the Ordinance.
There was no provision for the giving of any notice before the filing of the suit (Section 5 of the Gwalior Ordinance). The tenant, however, after giving a notice to the landlord of his intention to file a suit for fixation of rent in respect of the premises in his occupation, filed a civil suit in the Court of the Sub-Judge, Murar. In 1950, when the aforesaid suit was yet pending, the Gwalior Ordinance was repealed and replaced by the Madhya Bharat Act. The Madhya Bharat Act made no provision saving the pending suits and created a special forum, e. g., the Court of the Rent Controller, for the determination of rent, under the Act. It further required a notice to be given to the landlord before a suit was filed against him for the purpose: (see Sub-sections (2) and (4) of Section 7 of the Act.
On coming into force of the Act, the Court of the Civil Judge, Murar, returned the plaint in the suit for presentation to the proper Court. The tenant (respondent) thereupon filed the suit, out of which the present petition arises, in the Court of the Rent Controller, Murar, without giving any fresh notice of his intention to file a suit for the fixation of rent. To this suit, the landlords inter alia, raised the objection, that it was not tenable as the tenant had filed it without giving a notice to them as required by Sub-section (2) of Section 7 of the Madhya Bharat Act. The reply of the tenant was that, he had already given a notice before filing his suit in the Court of the Sub-Judge, Murar. and that no fresh notice was necessary as the earlier notice amply satisfied the requirements of Sub-section (2) of Section 7 of the Madhya Bharat Act.
3. The trial Court decided the objection in favour of the landlords and dismissed the suit. The appellate Court reversed the finding of the trial Court and remanded the case for a decision on merits. On the final decision of the suit in favour of the tenant, the landlords have come up to the High Court under Article 227 of the Constitution for quashing the order of the Rent Controller on the ground that it was passed without jurisdiction as the condition precedent for the exercise of jurisdiction by him, e. g., the giving of a notice as required by Sub-section (2) of Section 7 of the Madhya Bharat Act, had not been complied with by the tenant respon dent.
4. Sub-sections (2) and (4) of Section 7 of the Madhya Bharat Act read as follows:
^^2 tc fd fdlh ,sls LFkku ds fy;s dksbZ HkkMk Bgjk u gks ;k tc fd Bgjs gqos HkkMs dks Hkwfe&Lokeh c<kuk pkgrk gks ;k HkkMsnkj ?kVkuk pkgrk gks rks Hkwfe&Lokeh vFkok HkkMsnkj] tSlh Hkh fd n'kk gks fyf[kr lwpuk nwljs i{kdkj dks nsdj mi/kkjk ds vkf/ku HkkMk fu;r djkus dh dk;Zokgh djsxkA ;fn fdlh dkj.k ls Hkwfe&Lokeh ;k HkkMsnkj] tSlh Hkh fd n'kk gks] ;g nkok djs fd HkkMk mfpr okf"kZd HkkMs dh mis{kk vi;kZIr ok vR;f/kd gS rks mls vf/kdkj gksxk fd og ml {ks= esa fopkjkf/kdkj j[kusokys HkkMk fu;a=.k vf/kdkjh ds le{k HkkMk fu;r fd;s tkus ds fy;s vkB vkus ds LVkEi ij ckc izLrqr djsA*]
5. According to Khan, J. the provision in sub-s. (2) of Section 7 regarding the giving of a notice was mandatory and that a notice had to be given under that sub-section after the Madhya Bharat Act came into force. He, therefore, held that a notice given prior to the coming into force of the Madhya Bharat Act was of no avail and consequently the order passed by the Rent Controller was without jurisdiction and had to be quashed. Krishnan, J., on the other band, held that the provision regarding the giving of a notice was directory and not mandatory, and that the provisions of Sub-section (2) of Section 7 of the Madhya Bharat Act had been substantially complied with in that a notice before the filing of the suit in the Court of the Sub-Judge, Murar, had already' been given. He further held that there were multitudinous transactions between the parties involving written information during the contest in the civil Court as also before the suit was finally decided by the Rent Controller in 1953. Further, in his opinion, in any case, as substantial justice had been done and the objection was only hypertechnical, it was not a fit case for interference under Article 227 of the Constitution.
6. As no specific points have been referred to me for decision and as I am of opinion that this is not a fit case for interference under Article 227 of the Constitution I need not enter into a detailed examination of the various points on which there has been a difference of opinion between Khan and Krishnan, JJ.
7. It is not disputed that before the filing of the earlier suit in the Court of the Sub-Judge, Murar, under the provisions of the Gwalior Ordinance, a notice had been given by the tenant to the landlords that the rent was excessive, that he wanted it to be reduced and that he intended to file a suit for the fixation of rent, if his demand for reduction of rent were not complied with. The question is, whether such a notice satisfied the requirements of Sub-section (2) of Section 7 of the Madhya Bharat Act.
8. Examining the provisions of that sub-section, I find that the relevant provisions, omitting the unnecessary words, would read thus;
^^tc fd fdlh ,sls LFkku ds fy;s ftlesa ;g fo/kku ykxw gksrk gks dksbZ HkkMk Bgjk u gks ;k tc fd Bgjs gqos HkMs dks--- HkkMsnkj ?kVkuk pkgrk gks rks---- HkkMsnkj----- fyf[kr lwpuk nwljh i{kdkj dks nsdj mi/kkjk ds vk/khu HkkMk fu;r djkus dh dk;Zokgh djsxk**
9. All that the sub-section required was that before a suit for fixation of rent was filed, the tenant! was to give a written notice fyf[kr lwpuk to the landlord. What the notice was to contain was nowhere specified, but the context in which the words had been used clearly showed that the written notice was to be of the fact that the tenant desired to get the rent fixed, where no rent had been agreed upon, or to get the agreed rent reduced. It is not disputed that such a notice had already been given and consequently, in my opinion, no fresh notice was necessary.
10. It is, however, contended on the authority, of the majority decision in Bindraban v. Pannalal, Madh-B LR 1955 Civil 607 that what the section enjoined was that the tenant was to give a writteni notice of his intention to get the 'fair rent', as defined! in Section 3 (e) of the Madhya Bharat Act, fixed, and, as the fair rent as defined in the said Act could not be known before it came into force, any notice given before the Act came into force would be of no avail. Reliance is placed on the observations of Dixit. J. at p. 611, wherein he said:
"But the joint to be noted is that the notice must be a notice of an intention to have fair rent as understood in Section 2(e) (it should be 3(e)) of the Act fixed. The notice may be in general words but the party served with the notice must understand that the notice is of the intention of the party giving the notice to get fair rent, as defined in the Act, determined. Clearly, a notice given, before the Sthan. Niyantran Vidhan came into force for the fixation of fair rent under the law then in force or the institution of a suit for that purpose cannot by any stretch of reasoning be regarded as a notice of an intention to have the fair rent computed according to Section 2(e) (Sic) of the Act of Samvat 2006. It would be inconsistent to say that the right to have fair rent, as defined in Section 2(e) (Sic), fixed is a right created by Sthan Niyantran Vidhan, Samvat 2008 and that, therefore, the remedy had the form provided by Section 7 of the Act must be strictly followed and yet to say that a notice given when the Act was not in existence is a notice in compliance with Section 7 of the Act. In my opinion, the notice given by the non-applicant on 15-9-1948 or his subsequent act of filing a suit in the Court of Judicial Officer, Kasba Gwalior, for settlement of fair rent can be of no avail to him in contending that the Rent Controller obtained jurisdiction to take proceedings under Section 7 of the Sthan Niyantran Vidhan Samvat 2006. It was necessary for the tenant to give a notice to the landlord of his intention to approach the Rent Controller for having fair rent, as defined in the Act, fixed."
11. There is no doubt some force in these observations, but, in my opinion, in so construing tee provisions of Section 7 of the Madhya Bharat Act, we would be reading much more into those provisions than their language warranted. In the first place, the observations proceed on an unwarranted assumplion that the suit to be filed was a suit for the fixation of 'fair rent' as defined or understood in Section 3(e) of the Act Section 3(e) does not in terms say that the suit shall be instituted for the fixation of 'fair rent', nor does Section 3 (e) define, or even give a clue for the definition of, 'fair rent'. No doubt, we sometimes loosely say that the Rent Control Authority fixes 'fair rent', but all that we mean thereby is that he fixes what he considers to be 'fair rent', keeping in view the facts and circumstances established in the Particular case.
It is, therefore, fallacious to say that the notice is to be of the intention of the tenant to get 'fair rent' as defined in the Ace determined. Secondly, the suit that was envisaged to be filed by a tenant under Sub-section (4) of Section 7 of (he Madhya Bharat Act was a suit for the fixation of rent; HkkMk fu;r djus ds fy;s by the Rent Control Authority, provided that the tenant claimed that the rent payable by him was much more vR;f/kd than 'fair annual rent' mfpr okf"kZd HkkMk 'Fair annual rent' mfpr okf"kZd HkkMk mentioned in the sub-section thus had relevance only for the purpose of giving a standard with reference to which the rent was to be fixed by the Rent Control Authority constituted for the fixation of rent thereunder. Lastly, on a plain reading of the section, the only notice required to be given under Sub-section (2) was of the tenant's intention to get the rent fixed, either because no rent had been agreed upon or because he wanted to get the agreed rent reduced, which could be done by agreement of the parties and without reference to any Court or tribunal. What rent a tenant could get fixed and under what circumstances he could get it so fixed, if and when he went to the 'Rent Control Authority' as provided under Sub-section (4) of Section 7, was not relevant for the purpose. In my opinion, as the position stands, it would be improper to import consideration of 'fair rent', i. e., rent which the Rent Control Authority would have fixed, if and when it was approached, when construing the contents of a notice under Section 7(2) of the Madhya Bharat Act.
12. But, be that as it may, I need not examine the point in detail any further or give any final opinion on it because, in my opinion, the petition must fail for the reasons, that this is not a case in which the High Court would be justified in exercising its supervisory jurisdiction under Article 227 of the Constitution. The application for the fixation of rent was filed about nine years ago and the objection raised is hypertechnical. It shall also have to be borne in mind that, apart from the fact that a right had been given to the tenant to get the rent fixed through Court in case it was much more than the 'fair annual rent' as defined in the Madhya Bharat Act, Section 7(1) of the Act also provided that the rent payable by the tenant was to be the one agreed to between him and the landlord but that in no case it was to exceed the rent fixed on the basis of the 'fair annual rent', as defined in the Act.
Such a rent has now been fixed. At best it could be said that it was fixed irregularly or even without jurisdiction; but even so, the fact remains that the landlords in equity are now precluded from claiming any rent higher than that. Consequently that ought to be the rent payable by the tenant in respect of the premises in question. It has also to be borne in mind that the question o notice has no direct bearing on the quantum of rent as fixed under the Act, it is not suggested that the amount determined as 'proper' or 'fair rent' under the Act would have been different if the required notice had been given because the date on the basis of which it was determined would practically be the same. Consequently it is of academic importance how that rent came to be fixed and in any case the final result would not be different even if we interfered and the rent had to be determined afresh by the Rent Control Authority after a fresh notice had been given.
13. Power of superintendence given to this Court under Article 227 of the Constitution is an extraordinary power and is meant to be used in grave and exceptional cases to prevent miscarriage of justice. By its very nature it is discretionary and is not available to a litigant as of right, and consequently this Court never interferes in its supervisory jurisdiction if substantial justice has been done. Even in case of want of jurisdiction, as held in Indra Narayan Kundu v. Girindra Nath, AIR 1952 Cal 192, it is not obligatory on the High Court to interfere in the exercise of its power of supervision under Article 227 of the Constitution, where such interference is not called for to prevent a grave miscarriage of justice and where the interference would have eventually no effect on the decision at all.
14. I, therefore, agree with Krishnan, J. that under the circumstances of the case it would not be proper for the High Court to interfere under Article 227 of the Constitution, even if the contention of the petitioners were technically correct.
15. I would, therefore, dismiss the application with costs.