Second Appeal No.81 of 1993

29th November, 2005

Petitioner Counsel: Shri. S. J. DAVE
Respondent Counsel: Shri. V. R. CHOUDHARY

Cases Cited:
Nandlal Vs. Motilal, 1997 Mh.L.J. 711 [Para 7]
Abdur Rahman Vs. Athifa Begum, (1996)6 SCC 62 [Para 13]

JUDGMENT

JUDGMENT:- Heard learned Counsel for the parties and perused the records.

2. This appeal is filed by the appellants (legal heirs of original defendant-tenant) challenging the judgment and order passed by the 4th Additional District Judge, Nagpur in Regular Civil Appeal No.121/1989, dated 6-1-1993 where under the appeal has been dismissed and the judgment and order passed by the learned Civil Judge (Junior Division), Umrer in Regular Civil Suit No.209/1982 decreeing the plaintiff's suit for possession has been confirmed.

3. This Court admitted this Second Appeal on 16-3-1993. However, no substantial question of law has been framed. Now considering the contentions of the learned Counsel for the parties and also averments made in the appeal memo, I have framed following substantial questions of law :-

1) Whether the permission under the Rent Control Order is pre-requisite before filing the suit for possession ?

2) Whether the appellate court was right in dismissing the appeal on merits when the appellant was absent ?

3) Whether the trial court was right in striking out the defence of the appellant, in view of default on the part of the appellant/plaintiff in depositing the amount of costs as ordered by the Court?

4. I have heard the learned Counsel for the parties on the substantial questions of law now framed by me. The factual position as regards relationship between the appellant and the respondent vis-a-vis the premises let out to the appellant/original defendant is not in dispute. Admittedly the suit premises are situated at Umrer town within the municipal limit of Umrer, bearing house No.98 at the monthly rent of Rs.25/- from 1-4-1969. As the tenant failed to pay rent of the suit premises regularly and remained in arrears the landlord/original plaintiff after issuing notice to the tenant on 2-7-1980, directly filed the suit in the Court of Civil Judge (Junior Division), Umrer seeking possession of the suit premises.

5. The suit was resisted by defendant by his written statement (Exh.12) contending that the defendant was not irregular in paying rent. It was also contended that defendant had incurred expenditure to the tune of Rs.1,727.06 for repairs of the house and he has also spent for tiles sum of Rs.517/-. It was further contended specifically by the defendant/tenant that plaintiff/landlord has not obtained permission from the Rent Controller, Umrer and as such the suit was liable to be dismissed. The trial Court framed necessary issues vide Exh.13 and the parties went on trial on those issues. It is not disputed that during course of the trial after plaintiff's evidence was over, defendant sought adjournment to facilitate him to lead evidence on his behalf. That application moved by defendant was allowed subject to costs of Rs.100/-. The matter was fixed immediately on the next day. But defendant could not pay costs, and therefore, on 16-3-1989 defendant moved an application seeking extension of time to pay the amount of costs. That application came to be rejected on 18-3-1989. Thereafter, defendant again moved an application on 18-3-1989 seeking permission to deposit costs and to lead evidence. However, that application also came to be rejected on the ground that earlier application making similar request has been rejected by the Court. As a result of them the trial court decided the matter. On the day when the matter was fixed for judgment, plaintiff made an application for striking off defence. It is the contention of the defendant that notice of that application was not issued to the defendant, but the trial court allowed the application striking out the defence of the defendant. In short, the matter was decided without there being giving an opportunity to the defendant to lead evidence.

6. Defendant/appellant preferred an appeal challenging the judgment and decree passed by the trial court. The appellate court by its judgment dated 6-1-1993 dismissed the appeal on merits though none for the appellant/defendant was present and heard.

7. Hence, the present appeal challenging the judgment and decree passed by the trial court which came to be confirmed by the appellate court. The learned counsel for the appellant submitted that the Court below committed an error in decreeing the suit filed by plaintiff when admittedly permission under Rent Control Order was not sought. The learned Counsel placed reliance on the decision of the Apex Court in 1997 Mh.L.J. 711, Nandlal and Ors.-Appellants Vs. Motilal-Respondent. The issue involved in that case before the Apex Court was almost similar and identical as before this Court. It is laid down by the Apex Court that the provisions of C.P. and Berar Letting of Houses and Rent Control Order, 1949 made applicable to all municipalities by Notification dated 26-7-1949 also apply to such municipalities as came into existence thereafter. If a new municipality is subsequently constituted, it is not necessary that the State Government must issue fresh notification extending the benefit of the Rent Control Order to the newly constituted municipality. It is further held that a suit for eviction of a tenant within the area of such newly constituted Municipality without permission of Rent Controller is not maintainable.

8. Admittedly the suit premises are situated within the municipal limits of Municipal Council, Umrer. It is further admitted that before filing the suit, plaintiff/landlord has not obtained permission, much less filed an application before the Rent Controller seeking permission to terminate the tenancy of the tenant. The trial court has while dealing with this issue in Para No.7 of the judgment stated as below :-

"The defendant remained absent and the suit proceeded Under O.17(3), C.P.C. against the defendant. Moreover, the defendant has not paid the costs to the plaintiff during the pendency of suit and Ex.47 is allowed by me and defence of the defendant is struck off. Hence, I answer issue No.5 in the negative."

9. Bare perusal of the reasoning given by the trial court would show that it has to be rejected and the same cannot be upheld or confirmed in the light of admitted legal position. It is needless to say that it was for plaintiff to substantiate his claim in the suit as to maintainability of the suit for eviction of a tenant without there being obtaining permission of the Rent Controller. When admittedly it is required under the provisions of Rent Control Order that permission is necessary before filing a suit for eviction, this legal position does not change merely because defendant/tenant has not led evidence or his defence has been struck off. In my considered view the suit filed by landlord was not maintainable for want of permission from the Rent Controller under the Rent Control Order.

10. The appellate court has dismissed the appeal. Perusal of the judgment shows that the appellate court has also framed issue No.4 in that regard, but the reasoning given by the appellate court is as hopeless as it could be. The appellate court has observed, "The Counsel for the respondent has urged that no permission under Rent Control Order is required as the said provisions are not applicable to Umrer Municipal Area. I have already pointed out that the appellant and his counsel remained absent. Nothing has been brought on record to show that the Rent Control Order is applicable to the Municipal Area of Umrer. Considering this aspect, I find that the suit is maintainable as no permission under Rent Control Order is required".

11. It is needless to say that even the appellate court has committed an error in recording finding on this issue, when the factual position admittedly goes to show that permission of the Rent Controller was pre-requisite for filing suit for eviction of a tenant. Therefore, on this issue itself the suit filed by the plaintiff is not maintainable and the same has to be dismissed.

12. As regards the second substantial question of law, the learned Counsel for the appellant pointed out that the provisions of O.41, R.17 of the Civil Procedure Code are very clear. In order to appreciate this submission of learned Counsel for the appellant, the provisions contained in R.17 of O.41 of the Code of Civil Procedure are reproduced as under :-

"O.41, R.17. Dismissal of appeal for appellant's default.-

(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

[Explanation.- Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits]."

13. The learned Counsel for the appellant also placed reliance on the decision of the Apex Court in (1996)6 SCC 62, Abdur Rahman and Ors.-Appellants Vs. Athifa Begum and Ors.-Respondents. This decision is squarely on the provisions contained in Order 41, Rule 17(1), Explanation. It has been held that the High Court cannot go into the merits of the case when the appellant is absent. In that case the High Court has dismissed the appeal on merits though the appellant therein had not appeared. The Apex Court therefore, held that the High Court has transgressed its limits in taking into account all relevant aspects of the matter and holding that there was no available ground for interference with the decision of the trial court.

14. In the case at hands, admittedly the appellate court has dismissed the appeal on merits, though none for the appellant was present on the day when the matter was heard. Therefore, as has been held by the Apex Court in the decision referred above it has to be said that the appellate court has also in the present case transgressed its limits in dismissing the appeal on merits. It would have been proper to dismiss the appeal in default either for want of prosecution or for default on the part of the appellant. Therefore, dismissal of the appeal by the appellate court and thereby consequently confirming the decree passed by the trial court cannot stand. It has to be held that the appellate court was in error in dismissing the appeal on merits.

15. The third substantial question of law does not survive in view of findings recorded on other two substantial questions of law. It is found that the suit itself was not maintainable and as such the suit has been dismissed. The decree passed by the trial court is set aside. Consequently the decree passed by the appellate court dismissing the appeal is also set aside. Hence, the order.

16. Appeal is allowed. Decree passed by the trial court, so also that confirmed by the appellate court are set aside. The suit filed by the respondent/plaintiff for eviction is dismissed.

17. No order as to costs.

Appeal allowed.