# MOHAMMAD ISMAIL v. NANNEY LAL

- **Citation:** [1969] 3 S.C.R. 894
- **Court:** Supreme Court of India
- **Decided:** 1969-03-01
- **Case number:** Civil Appeal No. 263 of 1969
- **Bench:** M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohammad-ismail-v-nanney-lal-4658
- **Pages:** 7

## Headnote

J. C. SHAH,
V. RAMASWAMI,
G. K. MITTER AND A. N. GROVER, JJ.J
U.P. (Temporary) Control of Rent & Eviction Act (U.P. 7 of 1941)
s. 7-F-Suit for eviction filed after obtaining permission by ComniissioM;
-Permission revoked by State Government-Whether suit incompetent.
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B
The U.P. (Temporary) Control of Rent & Eviction Act, 1947, resC
tricts the rights of landlords to institute suits for eviction of their tenants
to cases covered by s. 3(l)(a) to (g) except with the permission of the
J?istri.ct Magistrate. The District Magistrate's order granting the permiss10n is expressly made subject to any order by the Commissioner under
s. 3 (2) provided the aggreived party applies within 30 days to the Commissioner to revise the order. The Commissioner must ordinarily dispose
of the application within six weeks. Section 7-F of the Act confers revisionary powers on the State Government in any case granting or refusing
D
to grant permission, and under s. 3 ( 4) the Order of the Commissioner
under s. 3(3) is to be final subject to the order under s. 7-F. The respondent-landlord obtained permission of the District Magistrate to file a
suit fdr eviction of the appellant-tenant under s.. 3 ( 1) of the Act. , The
tenant applied to the Commissioner under s. 3(2) and the Commis~ioner
dismissed the application. The tenant then filed a further revision application fo the State Government under s. 7-F. Before the disposal of the
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last revision application, the landlord filed a suit for ejectment in pursuance of the permission given by the Commissioner. Thereafter the State
Government set aside the order of the Commissioner and revoked the
permission granted to the landlord.
On the question whether the suit
filed, after obtaining the permission of the Commissioner became incompetent on the making of an order by the State Government under- s. 7-F
cancelling the permission to sue given by the Commissioner, this Court,
HELD : The suit validly instituted after obtaining permission as re-
.quired by s. 3 did not cease to be maintainable even if the State Government thereafter revoked the permission granted.
11
Under sub-s. (1) of s. 3 the maintainability of a suit on grounds other
than those mentioned in els. (a) to (g) is made expressly subject to an
order under sub-s. (3). The Legislature did not provide that the right
to file a suit would be subject to or dependent upon an order under s. 7-F
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in the same way as an order under s. 3(3). [898 A]
When n landlord files a suit for eviction only with the permission of
the District Magistrate, he is conscious of the fact that such permission
may be revoked by the Commissioner at the instance of the tenant within
tCn weeks of its institution. But so far as the revisional powers of the
State Government are concerned. there is n6 time limit fixed either for
application by an aggrieved party o'r for the disposal thereof .. It may b_e
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made at anv time and the State Government 1s further authorised by this
section (s. 7-F) to act suo 111otu. In such a state of affairs, it cannot be
'held that the landlord must wait indefinitely and find out whether the
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MOHD. ISMAIL v. NANNEY LAL (Mitter, J.)
8 95
permission granted to him will be upheld by the State Government should
the tenant make an application for revision of the ordelr of the Commissioner. [898 CJ
Apart from the above c;pnsideration, the words in s. 7-F indicate that
the State Government can only exercise its. jurisdiction to revise the order
of the Commissioner before the actual jnstitution of the suit.
The language of s. 7-F does not seem to be aimed at invalidating a suit already
instituted and can only operate at a stage before the landlord launches
his proceedings. There is nothing in sub-s. ( 4) of s. 3 read with s. 7-F
to show that the landlord should wait till the powers of the revising
authorities have been exhausted. If the Legislature had so intended, it
could have used suitable words in sub-s. (!) of s. 3 to indicate that the
gr

## Text

MOHAMMAD ISMAIL
v.
NANNEY LAL
March 1, 1969
[M. HIDAYATULLAH, C.J.,
J. C. SHAH,
V. RAMASWAMI,
G. K. MITTER AND A. N. GROVER, JJ.J
U.P. (Temporary) Control of Rent & Eviction Act (U.P. 7 of 1941)
s. 7-F-Suit for eviction filed after obtaining permission by ComniissioM;
-Permission revoked by State Government-Whether suit incompetent.
A
B
The U.P. (Temporary) Control of Rent & Eviction Act, 1947, resC
tricts the rights of landlords to institute suits for eviction of their tenants
to cases covered by s. 3(l)(a) to (g) except with the permission of the
J?istri.ct Magistrate. The District Magistrate's order granting the permiss10n is expressly made subject to any order by the Commissioner under
s. 3 (2) provided the aggreived party applies within 30 days to the Commissioner to revise the order. The Commissioner must ordinarily dispose
of the application within six weeks. Section 7-F of the Act confers revisionary powers on the State Government in any case granting or refusing
D
to grant permission, and under s. 3 ( 4) the Order of the Commissioner
under s. 3(3) is to be final subject to the order under s. 7-F. The respondent-landlord obtained permission of the District Magistrate to file a
suit fdr eviction of the appellant-tenant under s.. 3 ( 1) of the Act. , The
tenant applied to the Commissioner under s. 3(2) and the Commis~ioner
dismissed the application. The tenant then filed a further revision application fo the State Government under s. 7-F. Before the disposal of the
E
last revision application, the landlord filed a suit for ejectment in pursuance of the permission given by the Commissioner. Thereafter the State
Government set aside the order of the Commissioner and revoked the
permission granted to the landlord.
On the question whether the suit
filed, after obtaining the permission of the Commissioner became incompetent on the making of an order by the State Government under- s. 7-F
cancelling the permission to sue given by the Commissioner, this Court,
HELD : The suit validly instituted after obtaining permission as re-
.quired by s. 3 did not cease to be maintainable even if the State Government thereafter revoked the permission granted.
11
Under sub-s. (1) of s. 3 the maintainability of a suit on grounds other
than those mentioned in els. (a) to (g) is made expressly subject to an
order under sub-s. (3). The Legislature did not provide that the right
to file a suit would be subject to or dependent upon an order under s. 7-F
G
in the same way as an order under s. 3(3). [898 A]
When n landlord files a suit for eviction only with the permission of
the District Magistrate, he is conscious of the fact that such permission
may be revoked by the Commissioner at the instance of the tenant within
tCn weeks of its institution. But so far as the revisional powers of the
State Government are concerned. there is n6 time limit fixed either for
application by an aggrieved party o'r for the disposal thereof .. It may b_e
H
made at anv time and the State Government 1s further authorised by this
section (s. 7-F) to act suo 111otu. In such a state of affairs, it cannot be
'held that the landlord must wait indefinitely and find out whether the
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MOHD. ISMAIL v. NANNEY LAL (Mitter, J.)
8 95
permission granted to him will be upheld by the State Government should
the tenant make an application for revision of the ordelr of the Commissioner. [898 CJ
Apart from the above c;pnsideration, the words in s. 7-F indicate that
the State Government can only exercise its. jurisdiction to revise the order
of the Commissioner before the actual jnstitution of the suit.
The language of s. 7-F does not seem to be aimed at invalidating a suit already
instituted and can only operate at a stage before the landlord launches
his proceedings. There is nothing in sub-s. ( 4) of s. 3 read with s. 7-F
to show that the landlord should wait till the powers of the revising
authorities have been exhausted. If the Legislature had so intended, it
could have used suitable words in sub-s. (!) of s. 3 to indicate that the
grant of permission by the District Magistrate would also be subject to
an crder under s. 7-F. [898 F]
The Legislature had provided for a decree for eviction of a tenant
passed before the commencement of the Act liable to be rendered inexecutable unless it was based on any of the grounds mentioned in sub-s. ( 3).
lbe Legislature might, if so advised, have provided for a similar result
in a case where the_ State Government had revoked the permission to sue
granted by the Commissioner. It would make a mockery of the judicial
process if it were to be held on the language of the sections as they stood,
that irrespective of a decree being passed by the trial coun being upheld
in appeal by the High Coun or by this Court, the order of the State
Government would nullify all proceedings.
Once the jurisdiction under
s. 16 wa• properly exercised the Coun cannot examine the propriety of
the order made thereunder. [899 B-D: 900 BJ
Bhcgwan Das v. Paras Nath, [1969) 2 S.C.R. 297, followed.
Shri Bhagwan v. Ram Chand [1965) 3 $.C.R. 218 and Bansi Ram v.
Manrri Lal, I.LR. [1965) 1 Allahabad 545, re'ferred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 263 of
1969.
Appeal by special leave from the judgment and order dated
December 13, 1968 of the Allahabad High Court in SecQ.nd
Appeal No. 3474 of 1963.
J. P. Goyal, G. N. Wantoo and V. C. Parashar, for the
appellant.
K. P. Gupta, for the respondent.
The Judgment of the Court was delivered by
Mitter, J,
The question in this appeal by special leave is,
whether a suit for evictiom of a tenant by a landlord, after obtaining the permission of the Commissioner under sub-s. (3) of s. 3
of the Uttar Pradesh (Temporary) Control of Rent and Eviction
Act, 194 7 becomes incompetent, on the making of an order by
the State Government under s. 7 -F cancelling the permission to
sue given by the Commissioner.
The relevant facts for disposal of this appeal are as follows.
The respondent-landlord obtained permission of the
District
. 896
SUPREME COURT REPORTS
(1969] 3 S.C.R .
Magistrate to file a suit for eviction against the appellant under
s. 3(1) of the Act on May 29, 1961. The ten.ant went up to the
Commissioner of Agra Divisi~ under s. 3 ( 2) of the Act.
On
July 26, 1961 the Commissioner dismissed the revision application.
The tenant then filed a further revision application to the State
Government under s. 7-F of the Act.
Before the disposal of the
last revision application, the landlord filed a suit for ejectment on
J ainuary 18, 1962 in the court of the Munsii, Etah in pursuance
of the permission given by the Commissioner. On June 16, 1962
rhe State Government set aside the order of the Commissioner and
revoked !he permission granted to the landlord.
The suit was
dismissed by the Munsif of Etah on November 17, 1962. The
Civil Judge of Etah allowed the appeal of the landlord on September 28, 1963.
Th~ tenant went up in Second Appeal to the
High Court. On December 13, 1968 a learned single Judge of
the Allahabad High Court dismissed the tenant's appeal following
a judgment of this Court in Bhagwan Das v.
Paras Nath(').
Learned counsel for the appellant contended that some
aspects
of the question had not bee.n raised before and/ or considered by
this Court on the prior occasion which might have induced the
Court to come to a different conclusion. Having heard counsel at
some length, we are convinced that there is no-merit in his submissions.
We respectfully agree with the decision in Bhogwan
Das's case(') and are satisfied that counsel has not been able to
show that any relevant aspect of the question was not considered
on the former occasion.
There was no unanimity of opinion in the Allahabad High
Court as regards the effect of run order passed by the State Government contrary to tlie Commissioner's order on the basis of
whiGh a suit for eviction was filed in the subordinate courts. So
far as the High Court was concerned, the matter was laid at rest
by a Full Bench decision in the case of Bansi Ram v. Mantri
Lal('). This Court while not concurring with all that was said
in Bansi Ram's case(2) agreed with the Full Bench that a suit
validly instituted after obtaining permission as required by s. 3 did
not cease to be maintainable even if the State Government thereafter revoked the permission granted.
Section 3 ( 1) of the Act restricts the rights of la.oolords to
institute suits for eviction of tenants to cases covered by clauses
(a) to (g) of that sub-section except with the permission of the
District Magistrate. The words of this sub-section are imperative
·and show that no such suit can be filed without the permission of
the said authority.
Under the Transfer of Property Act the only
pre-requisite to the institution of a valid suit .for evictiOill of a
monthly tenant is the service of a proper notice to quit. The
(I) [1969] 2 S.C.R. 297.
(2) I.L.R. [1965[ I Allahabad 545.
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MOHD. ISMAIL v. NANNEY LAL (Mitter, J.)
897
landlord is not obliged to make out any ground for such eviction.
Where he seeks to eject a tenant and can make out a case which
falls within any of the sub-clauses (a) to (g), he need not approach
the Distrkt Magistrate for permission to sue. It follows that the
District Magistrate must consider the justification for the institution of a suit in all other cases. His order is expressly made subject to any order under sub-s. ( 3) of the section.
In order that
power under the latter sub-section can be exercised, it is necessary {or the aggrieved party to apply to the Commissioner to revise
the order of the Magistrate by 111aht1g ·an application under sub-s.
( 2) of the section within 30 days from the date on which the
order is communicated to him.
Sub-s. (3) enjoins upon
the
Commissioner to hear the application, as far may be, within six
weeks from the date of making it and his powers in this regard
are not subject to any limitation.
A landlord may file a suit for
eviction on getting the permission of the District Magistrate to do
so bnt he runs the risk of such permission being revoked by the
Commissioner in which case his suit will become infructuous as
by the.express words of sub-s. (1) the permission of the District
Magistrate is made subject to revision by the Commissioner. The
question arises whether the same result will follow if the order of
the Commissioner is in its turn upset by the State Government
acting under s. 7-F and whether sub-s. (4) of s. 3 should be so
construed.
In our opinion, an order under s. 7-F cannot affect
a suit filed prior thereto if the landlord has obtained the necessary sanction from the Commissioner.
The relevant portion of
the sections are quoted below* for facility of reference.
*(3) Restrictions on eviction.-(1) Subject to any order passed under subsection (3) no suit shall, without the permission of the District Ma&:istrate, be
filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds :-
(a) to (g)
(2) Whe~e any application has been made to the District M;gi.strate for
permission to sue a tenant for eviction from any accommodation and tbe. District
Magistrate grants· or refuses to grant the permission, the party aggrieved by
his order mf:Y, within 30 days from the date on which the order is communi·
cated to him, apply to the Corn.missioner to revise the order.
(3) The Commissioner shall hear the application made under ~ab-section
(2), as far as may .be, within six weeks from the. date of m~king it, and he
may. if he is not satisfied as to the correctness. legality O! propriety of !he order
passed by the District Magistrate or as to the regularity of proceed1ng·s held
before him alter or reverse his order, or make such other order as may be
just and proper.
( 4) The order of the Commissioner under sub-section (3) shall, subject
to any order passed by the State Government under section 7-F be final.
7-F.-Revision to State Government-The State Government may call for
the record of any case granting or refusing to grant permission for the filing
of a suit for eviction referred to in Section 3 or requiring anv accommodation
to be let or not to be let to any person under Section 7 or directing a person
to vacate anv accommodation under Section 7-A and maiy make such order as
appears to it. necessary for the ends of justice.
898
SUPREME COURT REPORTS
[1969] 3 S.C.R.
Under sub-s. ( l) the maintainability of a suit on grolllll!ds
other than those mentioned in els. (a) to (g) is made expressly
subject to an order under sub-s. ( 3). It will be noted that the
Legislature has conferred various powers on the State Government
besides the power to reverse orders under section 3. . For reasQDS
of its own the Legislature did not provide that the right to file a
suit would be subject to or dependent upon an order under s. 7-F
in the same way as an order under section 3 ( 3 ) .
Various· reasons were given by this Court in Bhagwan Das's
case(') for coming to the conclusion thats. 7-F was not to be construed in the same way as s. 3 ( 3) and we are .in entire agi:eement
therewith.
When a landlord filed a suit for eviction only with
the permission of the District Magistrate he knows that it would
be open to the tenant to ask for revocation of the permission by
an applicatiQl'.1 to the Commissioner within 30 days from the communication of the order of the District Magistrate to him.
He
is also aware that the Commissioner must, except for unavoidable
reasons, hear the application and dispose of it within six weeks
thereafter.
At the most, therefore, he has to wait for about ten
weeks from the order of the District Magistrate granting permission to find out whether he can safely institute a suit.
But so far
as the revisional powers of the State Gover1DJIIlent are concerned,
there is no time limit fixed either for application by an aggrieved
party or tor the disposal thereof. It may be made at any time and
the State Government is further authorised by this section (s. 7-F)
to act suo motu.
In such a state of affairs, it would not be right
to hold that the landlord must wait indefinitely and ljnd out whether the permission graimed to him will be upheld by the State
Government should the tenant make an application for revision of
the order of the Commissioner.
Apart from the above consideration, the words of s. 7-F in our
opinion, indicate that the State Government cain only exercise its
jurisdiction to revise the order of the Commissioner before the
actual institution of the suit.. The language of s. 7-F shows
that on the facts of the case before it the State Government must
consider whether the grant of or refusal to grant permission for
the filing of a suit should be upheld or not. The section does not
seem to be aimed at invalidating a suit a\ready instituted and can
only operate at a stage before the landlord launches his proceeding.
There is nothing in sub-s. ( 4) of s. 3 read with s. 7-F to
show that a lancllo~d should wait till the powers of the revising
authorities have been exhausted. If the Legislature had so intended, it could have used words iini sub-s. ( 1) of s. 3 to indicate that
the grant of permission by the District Magistrate would also be
subject to an order under s. 7-F.
The same result might have
been achieved by providing for the stay of a suit in case the State
(I) [1969] 2 S.C.R. 297.
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MOHD. ISMAIL v. NANNEY LAL (Mitter, I.)
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Government made an order under s. 7-F contrary to that of the
Commisllioner.
Once a suit is validly instituted it must take its course and the
decree passed therein must be givC\11 effect to .unless the words
of the statute render the decree inexecutable or liable to re-opening
in a proper case· on grounds mentioned in the statute. It was
pointed out by this Court in Bhagwan Das's case(')
that the
Legislautre had provided for a decree for eviction of a tenant
passed before the commencement of the Act liable to be rendered
inexecutable unless it was based on any of the grounds mentioned
in sub-s. (3). The Legislature might, if so advised, have provided for a similar result in a case where the State Government
had revoked the permission to sue granted by the Commissioner.
It was also pointed out in Bhagwan Das's case(') that it would
make a mockery of the jm:licial process if we were to hold on the
language of the sections as they stand at present, that irrespective
of a decree being passed by the trial court being upheld in appeal
by the High Court or by this Court, the order of the State Government would nullify all pro~gs.
There is nothing in the judgment of this Court in Shri Bhagwan
v. Ram Chand(') read with secti!lll 16(3) of the Act which
would incline us to come to any different conclusion.
On the
strength of the decision in that case read iJli the light of s. 16, it
was argued that the order of the State Government being quasijudicial in nature s. 16 (inset) placed the order of the State Government beyond the pale of scrutiny by a court of law.
We cannot see any force in this argumCill't. The permission to sue given
by the Commissione~ has no effect on the course of the trial of
the issues involved in that suit. That permission is only a prerequisite to a suit as a notice under s. 80 of the Code of Civil
Procedure.
The court trying the suit for eviction has to find out
whether a proper notice to quit was given aind whether the tenancy
was properly determined. It must also examine the grounds on
the basis of which the landlord seeks to evict the tenant and decide
for itself whether such grounds exist. Neither the District Magistrate nor the Commissioner nor the State Government is oblieed
to disclose any reasons which may influence the said authorities
in coming to their decision and the court is not called upon to examine whether the conclusion of any of the said authorities was
properly arrived at.
Learned counsel for the appellant would have us hold that
(I) [1969] 2 S.C.R. 297.
Lil Sup ;Cl/69-8
(2) (1965] 3 S.C.R. 218.
900
SUPREME COURT REPORTS
[1969] 3 S.C.R.
s. 16• ousted the jurisdiction of the Court to consider the propriety
of any order of the State Government.
In our view, that is not
the effect of that section. The decision in Shri Bhagwan v. Ram
Chand (supra) shows that the State Government must offer areasonable opportunity to both the parties while it exercises its jurisdiction under s. 7-F and an order which is J!lade in violation of the
principles of natural justice may be quashed.
Once the jurisdiction under s. 16 is properly exercised the court cannot examine
the propriety of the order made therell\ll.der.
In the resu!t, the appeal fails and is dismissed with costs. Two
is only exercisable at a point of time anterior to the filing of a
suit and courts of law can therefore disregard any order under
that section which is made after the filing of a suit.
In the result, the appeal fails and is dismissed with costs. Two
months time granted from today for vacating subject to payment
of rent and an undertaking given that the property would be handed over peacefuliy within that time.
Y.P.
Appeal dismissed.
•Section 16. Orders under the Act not to be questioned in any Court.-
No order' made under this Act by the State Government or the District Magis.
trate shall be called in question in any court.
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