Deshraj vs Akhtar Hussain

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 24 of 1956

Decision Date: 12 September, 1960

Coram: K.C. Das Gupta, K.N. Wanchoo, M. Hidayatullah, Bhuvneshwar P. Sinha, J.L. Kapur, P.B. Gajendragadkar

In this matter, the Supreme Court of India rendered its judgment on 12 September 1960 in the dispute titled Deshraj versus Akhtar Hussain. The opinion was authored by Justice K. C. Das Gupta and was delivered by a bench composed of Justices K. C. Das Gupta, K. N. Wanchoo, M. Hidayatullah, Bhuvneshwar P. Sinha, J. L. Kapur and P. B. Gajendragadkar. The petitioner was identified as Deshraj and the respondent as Akhtar Hussain. The decision is reported in the 1961 volume of the All India Reporter at page 148 and also in the 1961 Supreme Court Reports (First Series) at page 665. The case proceeded as Civil Appeal No. 24 of 1956, taken on special leave from an order dated 31 March 1954 of the former Madhya Bharat High Court rendered in Civil Revision No. 183 of 1952. The appellant was represented by counsel I. M. Lal and A. G. Ratnaparkhi, while the respondent was represented by counsel Rameshwar Nath and S. N. Andley. The principal legal issue concerned the applicability of the Accommodation Control Act, Samvat 2006 (M. B. 15 of 1950), particularly section 7(2), which deals with the requirement of notice before instituting a suit for fixation of rent after the Act replaced the earlier ordinance.

The factual matrix set out that the appellant had taken two houses in Morar from the respondent on 14 March 1948 for a monthly rent of Rs. 80 together with ancillary charges of Rs. 5 per month. On 20 October 1948 the appellant filed a suit for fixation of rent before the Cantonment Magistrate at Morar relying on the Accommodation Control Ordinance (Ordinance XX of 2004‑S). The Accommodation Control Act was enacted on 25 January 1950 and became operative on 10 February 1950, thereby supplanting the ordinance. Because the Act had come into force, the plaint was returned on 20 March 1950 for lack of jurisdiction. The appellant subsequently instituted a fresh suit before the Rent Controller without issuing a second notice, and that suit was decreed in his favour. The respondent contended that the fresh suit was invalid because section 7(2) of the Act required a new notice to be served after the Act’s commencement. The Court examined the language of section 7(2) and concluded that, although the provision envisages the service of notice, it does not prescribe that the notice must be issued in the form prescribed by the Act after its commencement. Accordingly, the Court held that the original notice served prior to the first suit satisfied the statutory requirement, and it affirmed the decree fixing the rent in accordance with the appellant’s claim.

Because the earlier court had dismissed the suit on the ground that it lacked jurisdiction, the appellant filed a new suit before the Rent Controller on 28 April 1950. In that suit the appellant sought the fixation of a fair rent of Rs 20 per month. The respondent contended, first, that the Rent Controller did not have authority to entertain the suit, and second, that the suit was incompetent because the appellant had not served a notice required by section 7(2) of the Accommodation Control Act. The Rent Controller rejected both points, held that the notice previously given by the appellant before the first suit satisfied the statutory requirement, decreed the suit, and fixed the fair rent at Rs 483 per annum. The respondent appealed this order to the District Judge, who affirmed the Rent Controller’s decree; the issue of compliance with the notice provision was not raised before the District Judge. Subsequently, the respondent instituted a revision petition in the High Court invoking section 115 of the Code of Civil Procedure and article 227 of the Constitution. The High Court concluded that a notice under section 7 is a condition precedent to instituting a suit, and because no such notice was served, the Rent Controller lacked jurisdiction. The High Court further observed that the decree issued by the Rent Controller operated retrospectively from the date of the lease deed, a power it did not possess, and that the original suit was properly instituted in the civil court, whose jurisdiction was not removed by the later enactment of the Act. Consequently, the High Court held that the civil court should not have returned the appellant’s plaint.

The principal question for determination was whether a fresh notice was required under section 7(2) of the Act when instituting a suit for rent fixation. Section 7(2) provides that when rent is not agreed upon, or when either party seeks to alter the agreed rent, the landlord or tenant may give a written notice to the other party and then proceed to have the rent fixed under subsection 4. The provision merely mandates the giving of a notice; it contains no language obligating the notice to be framed in a particular form prescribed by the Act, nor does it require the notice to be served after the Act became operative. The trial court had found that a proper notice had been given and consequently applied section 7. This point had not been raised before the District Judge and therefore was not adjudicated at that stage. The High Court, however, examined the issue and held that the notice was insufficient. In the present view, it could not be said that the appellant’s notice was not a proper notice, nor does the statutory language impose the requirement argued by the respondent that the notice be given in the manner prescribed by the Act and only after its commencement.

The respondent contended that the notice required to be given under the provision had to be issued in the manner prescribed by the Act and only after the Act had come into force. It was observed that this particular question had never been raised before the District Judge, and therefore it had not been decided at that stage of the proceedings. The High Court further held that the plaint should not have been sent back by the civil court because the suit for fixation of fair rent also dealt with a period that preceded the enactment of the Act. When the order of the Rent Controller is read in a proper manner, it is clear that the order does not operate retrospectively from the date on which the lease began; rather, the order is to be applied prospectively. After the Act came into operation, the authority to fix rent vested in the Rent Controller and was no longer within the jurisdiction of the civil courts. Consequently, the contention that the civil court retained jurisdiction over the pre‑Act period was found to be without merit. In view of these findings, the appeal was allowed. The judgment and order of the High Court were set aside and the order of the trial court was restored. The appellant was ordered to receive costs for the entire litigation. The appeal was therefore allowed.