MAHARAJ JAGAT BAHADUR SINGH versus BADRI PRASAD SETH

DAS, J.-This is an appeal by speci1tl leave from the judgment and order of a learned single Judge of the . .l:'unjab High Court dated }fay :H, 1958, in Civil ttevision application No. 27 of 1958 of that Court. By that order the learned single Judge dismissed an application in revision ma.de by the appellant herein in the following circumstances.

p. 953

The appellant, ,1Jaharaj Jagat Bahadur Singh is the owner of the premises known as Ranzor Hall in Simla. The respondent, Badri Pras'.l<l Seth, is in occupation of the premises as a tenant and is running a cinema therein which is known as Hevoli theatre or Revoli cinema. 'l'he correspondence between the parties shows that on or about April 12, 1956 the Executive Engineer, SimhL Provincial Division, inspected the cinema building on behalf of the Licensing Authority, namely, Deputy Commissioner, Simla, and noted six defects, one of which was, to use the words of the Executive Engineer, "the right hand pillar of the screen has cracked and has gone out of plumb." The existence of these defects was communicated to the respondent and also to the Muncipal Committee, Simla. The respondent in his turn communicated. the existence of these defects to the appellant by a letter dated April 17, 1956. In that letter the respondent suggested· to the appellant that. the defect in the pillar should be removed before the beginning of June, 1956, when the rains were likely to commence. The respondent removed the other tfofects whil'h wero of a minor nature; but £lcttin~ no reply from the appellant, he again wrote to him on September l i, 1956, and asked him to take early steps to repair the pillar to a void any mishap. The n·spo11dent also intimated to the appellant tha.t tho cost of repairs to the pillar was likely to be in the 11cighbourhood of Rs. 5000/-. The appellant took no actiun in tho matter for some time. On Septum ber 2'!, Hl56 the East Punjab Crban Rent Restri<:tiou Act, 19-!9 (East Punjab Act Xo. Ill of l!J4!J) (hereinafter referred to as the Act) was amended aud a elauso was inserted ins. 13(3)(a) thereof which entitled the landlord to apply to the Rent Controller for an order directiug the tenant to put the landlord in possession in the case of any building if he required it to carry out any building work at tho instance of the Government or local authority any Improvement Trust under some improvement or development scheme or if the building had become unsafe or unfit for human habitation. On April !I, 1956, the appellant wrote to the !:'resident, Simla :IIunicipa.l Committee, a.sking him to get the pillar in the Rauzor Hall inspected by the Executive Engineer in order to have his oprniou whether tho pillar was really iu a dangerous condition and required any action on the part of the )luniuipal Committee under s. llf, of the Punj1ib ~Iunieipal Act, l!Jll (Punjab Act III of 1911).

pp. 953–954

On Oetobtl!' :JO, 1956, the Secretary, i\[unicipal Committee, Simla, wrote to the respondent about tho defect in respect· of the right hand pill1ir of the screen and required the respondent by means of notice to do the repairs within fifteen days of the receipt of tho notice. The Secretary issued tho notice perponing to act under ss. 113 and .114 the Punjab Municipal Act, 191 I. It appears that. the :IIunicipal Committee had the pillar inspected again in November, 1956, by the -Executive Engineer, Simla Central Division. This time the Ex:ecntive Engineer suggested that the two end walls (pillars) snpporting the beams for the screen were cracked aml therefore must be replaced by thicker walls. The Municipal Committee considered this "report and" came to the conclusion that as a precautionary measure what was necessary was to fill the doorway in the pillar with masonry so that the whole might become a solid block. On April 11, 1957, the Municipal Committee wrote to the appellant asking the latter to fill the doorway with masonry so that tbe whole pillar might become a solid block. This was in modification of the earlier notice wlrich had suggested more extensive repairs to the pillar. But before April 11, 1957, when the new notice from the Municipal Committee was received, the appellant had already made an application on December 1,1956, under s. 13 of the Act praying for an order from the Controller directing the re~­ pondent to put the appellant in possession of the property on the ground that the appellant required the l:iuilding for replacing the end walls supporting the beams of the screen by thicker walls. This application was contested by the respondent mainly on the ground that the appellant's claim was not bona fide and that the appellant did not really require the building to be vacated for the purpose of making the repairs to the pillar in question.

pp. 954–955

The Rent Controller came to the conclusion that the case was fully covered by cl. (iii) of s.13 (3)(a) of the Act inasmuch as on the evidence on the record it was established that the appellant required the building: to carry out the necessary building work which the Municipal Committee, Simla, had directed to be done. There was an appeal from the order of the Rent Controller to the Distriet Judge who was the relevant appellate authority under s.15 of the Act. The learned District Judge came to the conclusion that the noticeA under ss. 113 and 114 of the Punjab Municipal Act., I!ll I, had been manipulated by the landlord after the amendment made in s. t:l of the Act on Scptrmbcr 24, 19:i6, and that the appellai1t did not fide require the building for carrying out th~ repairs iil queRtion. The lcarnrd District. ,Judge pomterl out that. on April 1 I, l B:ii the i\lunicipal Committee had asked the landlord to fill the dou1 way with masonry so that the whole mi!!ht become a solid block and though the )funicipal Comn:ittee had modified its earlier requirement of thicker walls by means of a notice after the filing of the appli0ation by the appellant, it was open to the Court to take into consideration facts which had come into cxistancc after the filing of the application. He also pointed out that the evidence oft.he Executive EnginAPI', Central P.W.D., showed that he inspecti>d the building on .Tune 8, I 957, in tho compliance with the directions of the Court and was satisfied that the pillar had been satisfactorily repaired. In this view of the matter the learned District .Judge allowed the appeal and dismissed the application.

pp. 955–956

Th~n, there was an application in revision · under s. lii(•'i) of the Act to the High Court. This application was dealt with by K. L. Gosain, .J. who wrongly prn?Ceded on the footing t~at the appli.c~­ tion in rev1s10n was one under s. ii:>, Code of C1v1l Procedure. Though the learned Judge said that he had "one through the evidence and agreed with the findi~as arrived at by thn District Judge, he came to tho conclusion that as no question of jurisdiction was involved within the meaning of s.115, Cod!l of Civil Procedure, he saw no reasons to interfere and dismissed thn application in revision. The present appeal is direct.id against this order of the learned smgle Judge.

p. 956

Tho learned Attorney .General who appeared on behalf of the appellant has rightly pointed out that the learned J udgo of tho High Court was in error in disposing of the case as though the application in revision made to the High Court was an application under s. 115, Code of Civil Procedure. The application was really an application under s. 15(5) of the Act which is in these terms :

pp. 956–957

"15. (5) The High Court may, at any time, on the application of any aggrieved party or on its own motion, call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it

p. 957

may deem fit." It is manifest that the scope of sub·s. ( 5) of s. 15 of the Act is not the same as the scope of s. 115, Code of Ci•il Procedure. The learned Attornev General has submitted. rightly in our opinion, that.the scope of sub-s. (5) of s. 15 of the Act is wider and is not confined to questions of jurisdiction only.

p. 957

But even if the learned Jud!!;e of the High Coart was in error in treating the application as one under s. 115, Code of Civil Procedure, the fact still remains that he affirmed the findings of the learned District Judge and one of these findings was that the landlord did not require the building to carry out the repair work which was su?gested by the Municipal Committee. The Municipal Committee liad suggested a very simple work of repair, namely, filling up of the doorway in the pillar so that the pillar might· be one solid wall to support the screen. It has not been seriously disputed before us that such repairs could be easily carried out without the necessity of asking the respondent to vacate the building. As a matter of fact the learned Dis· trict Judge has pointed out that the Executive Enginear, Central P.W.D. had, subsequent to the application, exfJ,mined the pillar and found thn,t the repair work had already been done by the respondent.

pp. 957–958

The leiirned Attorney General has contenrled that the lciirned District Judg<• was in error in holding that the appelliint had manipulat.ed the notices ..nclcr as. :i am! 114 of the Punjab :lfonicipal Ant. We think it unnece88ary to go into that qn<'stion because the relevant provision in s. J::l(3)(a) of tho Act makes it quite clear that the landlord is m1tit.led to an order from the Controller directing the terant to put thP landlord in pos8ession rJf th<· building only when the landlord requires it.to carry out any building work etc. Tho relevant provision rpads as follows :

p. 958

"13. (1) A tenant in posFession of a building or rented fan<l shat! not be t'Victed t he1 efrom x x x l'Xccpt in acco, dun' e with the prov is ions of' this section, x x x.

p. 958

(2) x x x.

p. 958

(:l) (a) A landlord may apply to tlw Controller for an order directing the t<·nant to put the landlord in posse~o;ion- (i) x x x (ii) x x x (iii) in the ca8e of any building or renied land if he requires it to carry out. any buildi11g work at t.he in•t1mcc of the Government or local authority or any Jmpro\'(·mcnt 'I'ru8t under Rome im)Jro\·ement or clcvelopm.,nt echem" or if it bas hecome unsafe or 1111fit for human babitat:on.

p. 958

x x x. " W<.' emphasis£> the word "1cquires" in the provision. ·Having regard to the seh~me and purpose of tbp. legislation it is abundantly clear that cl. (iii) of a s.c.R. s.l3(3)(a) of the Act is attr.icted only when the building work is such that the lJ.ndlord requires that the building be vacated by the tenant in order to carry out the work ; in other words, the repairs needed are so extensive and fundamental in character that they cannot be carried out if the tenant remains in possesRion. Then only it can be said that the landlord requires the building to carry out the building work. We think that it is absurd to suggest that any such small work as white-washi~g, or filling up the gap in the doorway as in the present case, comes within cl. (iii) of s. 13(3)(a) of the Act .

pp. 958–959

The learned Attorney General has argued that the learned District Judge wrongly took into consiqeration facts which had come into existance after the filing of the application under s.13 of the Act. Here again we think that having regard to the scheme and purpose of the legislation it was open to the learned District Judge to take into consideration such facts as existed at the time when the order for vacation was to come into offer;t. Section 13 \ 3l(b) says that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an C•rder directing the tenant to put the landlord in possession of the building on such date. as may be specified by the Controller. In the present case the Controller made the order in July, 1957, and directed the building to be vacated by Septem her 25, 1957. But long before that date, namely, on June 8, 1957, the Executive Engineer, Central P.W.D., had inspected the building and found that the pillar had been repaired satisfactorily. The Controller did not accept the testimony of the Executive Engineer and the learned District Judge pointed out that the testimony of the Executive Engineer had been rejected by the Controller on very insufficient grounds. Tt was open to the learned District Judge to take into consideration the testimony of the Executive Engineer and having regard to that testimony, the lcarne<l District Judge rightly came to the conclusion that cl. (iii) of s.1.1(:!) (a) of the Act was not attracted to the

pp. 959–960

For these rea.sons we have com!i to the conclusion that there is no merit in the appeal whi~h i~ accordingly dismissed with costs.

p. 960

AppP,al dismissed. K. M. S. REDDY, CO:\fi\HSST01\ER OF INCOME. TAX, KERALA (CODIBATORE), EHNAKl LA.Jl

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