# MOHD. MAHMOOD AND ANOTHER v. TIKAM DAS AND ANOTHER

- **Citation:** [1966] 1 S.C.R. 128
- **Court:** Supreme Court of India
- **Decided:** 1965-05-04
- **Bench:** A. K. Sarkar, M. HIDAYATULLAll, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-mahmood-and-another-v-tikam-das-and-another-3475
- **Pages:** 6

## Headnote

Madhya Pradesh Accommodation Control Act, 1951, ss. 15(3), 16(2),
45(1) and 45(2)-S11b-renant claiming direct tenancy under s. 16(2)-
Quest/011 as to /awfulness of sul>-tenancy-Civi/ Court whether has jurisdiction to decide.
Respondent No. I who was the landlord of the accommodation in
dispute obtained a decree of ejcctment against respondent No. 2, his
tenant.
The appellants who were sub-tenants under respondent No. 2
gave a notice to the landlord under s. 15(2) of the Madhya Pradesh
Accommodation Control Order, 1961, and thereafter filed a suit against
him claiming a declaration that being lawful sub-tenants they had become
direct tenants of the landlord under s. 16(2) of the Act.
The High
Court held that the suit WllS barred by s. 45 (I) of the Act according
to which no civil court could cntcI'tain anv suit or proceeding in so far
aa it related to any matter which the Rent Controlling Authority under the
Act wa.' empowered to decide.
In appeal to the Supreme Court.
HELD : (I) For s. 16(2) to come into operation the sub-tenancy
has to be lawful.
The question of lawfulness of a sub-tenancy was ooe
which under s. 15 ( 3), the Rent Controlling Authority was empowered
to decide.
Under s. 45 (I ) of the Act no civil court could entertain a
suit or proceeding which the Rent Controlling Authority was empowered to
decide.
The High Court was therefore right in holding that the suit had
been filed in a court incompetent to
try
it and
in
di.'imissing
it.
[J30H-131B]
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(ii) There is nothing in s. 15(3) of the Act to indicate that it docs
not apply to a case where a landlord has already obtained
a
decree
against a tenant. If in spite of the decree the appellants had a right under
the Act to a direct tenancy under the landlord. they had a right to
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move the Rent Controlling Authority within the prescribed period for a
decision of the question that the subletting to them was lawful.
If the
Rent Controlling Authority had the power to decide that question. a
civil court would not be competent to decide the dispute in a suit brought
within that period. The suit by the appellants had been flied within that
period. [!31G-!32B]
(iii) The fact that the landlord had not applied under s. 15(3) did
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not affect the is..'iue as it was for the appellants as sulrtenants to pro\'e
that the sub-letting to them was lawful, [l 32C]
(iv) Section 45(2) also did not help the appellant•.
That pro,ision
was clearly intended only to protect a right to resort to a civil court for
the decision of a question as to an interest in property exi9ling apart from
!he Act concl'2"ning which an adjudication may have been inciden1ally
made by a Rent Controlling Authority in deciding a question which it
H
had been empowered by the Act to decide. It docs nol authorise a civil
oourt to decide a dispute as to the lawfulness of sub-letting for the
purpose of s. 16(2). [133 C-E]
•
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MAHMOOD v. TIKAM DAS (Sarkar, J.)
12&
A
CML APPELLATE JURISDICTION: Civil Appeal No. 356 of
1965.
Appeal by special leave from the judgment and decree dated
October 27, 19~4, of the Madhya Pradesh High Court in Second
Appeal No. 240 of 1964.
B
B. Sen and M. S. Gupta, for the appellants.
S. T. Desai and A. G. Ratnaparkhi, for the respondents.

## Text

128
MOHD. MAHMOOD AND ANOTHER
V.
TIKAM DAS AND ANOTHER
May 4, 1965
(A. K. SARKAR, M. HIDAYATULLAll AND V. RAMASWAMI, JJ.)
Madhya Pradesh Accommodation Control Act, 1951, ss. 15(3), 16(2),
45(1) and 45(2)-S11b-renant claiming direct tenancy under s. 16(2)-
Quest/011 as to /awfulness of sul>-tenancy-Civi/ Court whether has jurisdiction to decide.
Respondent No. I who was the landlord of the accommodation in
dispute obtained a decree of ejcctment against respondent No. 2, his
tenant.
The appellants who were sub-tenants under respondent No. 2
gave a notice to the landlord under s. 15(2) of the Madhya Pradesh
Accommodation Control Order, 1961, and thereafter filed a suit against
him claiming a declaration that being lawful sub-tenants they had become
direct tenants of the landlord under s. 16(2) of the Act.
The High
Court held that the suit WllS barred by s. 45 (I) of the Act according
to which no civil court could cntcI'tain anv suit or proceeding in so far
aa it related to any matter which the Rent Controlling Authority under the
Act wa.' empowered to decide.
In appeal to the Supreme Court.
HELD : (I) For s. 16(2) to come into operation the sub-tenancy
has to be lawful.
The question of lawfulness of a sub-tenancy was ooe
which under s. 15 ( 3), the Rent Controlling Authority was empowered
to decide.
Under s. 45 (I ) of the Act no civil court could entertain a
suit or proceeding which the Rent Controlling Authority was empowered to
decide.
The High Court was therefore right in holding that the suit had
been filed in a court incompetent to
try
it and
in
di.'imissing
it.
[J30H-131B]
B
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(ii) There is nothing in s. 15(3) of the Act to indicate that it docs
not apply to a case where a landlord has already obtained
a
decree
against a tenant. If in spite of the decree the appellants had a right under
the Act to a direct tenancy under the landlord. they had a right to
J
move the Rent Controlling Authority within the prescribed period for a
decision of the question that the subletting to them was lawful.
If the
Rent Controlling Authority had the power to decide that question. a
civil court would not be competent to decide the dispute in a suit brought
within that period. The suit by the appellants had been flied within that
period. [!31G-!32B]
(iii) The fact that the landlord had not applied under s. 15(3) did
G
not affect the is..'iue as it was for the appellants as sulrtenants to pro\'e
that the sub-letting to them was lawful, [l 32C]
(iv) Section 45(2) also did not help the appellant•.
That pro,ision
was clearly intended only to protect a right to resort to a civil court for
the decision of a question as to an interest in property exi9ling apart from
!he Act concl'2"ning which an adjudication may have been inciden1ally
made by a Rent Controlling Authority in deciding a question which it
H
had been empowered by the Act to decide. It docs nol authorise a civil
oourt to decide a dispute as to the lawfulness of sub-letting for the
purpose of s. 16(2). [133 C-E]
•
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MAHMOOD v. TIKAM DAS (Sarkar, J.)
12&
A
CML APPELLATE JURISDICTION: Civil Appeal No. 356 of
1965.
Appeal by special leave from the judgment and decree dated
October 27, 19~4, of the Madhya Pradesh High Court in Second
Appeal No. 240 of 1964.
B
B. Sen and M. S. Gupta, for the appellants.
S. T. Desai and A. G. Ratnaparkhi, for the respondents.
The Judgment of the Court was delivered by
Sarkar, J. The first respondent Tikam Das had let out a
c house in the city of Jabalpur to the second respondent Surya Kant
Naidoo.
Sometime in 1961 Tikam Das, herein referred to as the
landlord, served a notice on Surya Kant, herein referred to as the
tenant, terminating the tenancy and later in the same year filed
a suit in a civil
court against
the latter for ejectment. On
June 23, 1962, by consent of parties, a decree for ejectment was
D passed in that suit in favour of the landlord against the tenant.
The appellants who were occupying the premises as sub-tenants
under the tenant had not been made parties to the suit.
On June 25 and 26, 1962, the appellants served notices on
the landlord under s. 15 ( 2) of the Madhya Pradesh AccommoE
dation Control Act, 1961 which had come into force on December 30, 1961, claiming that as the tenant had sub-let the premises to them before the Act had come into force with the
consent of the landlord,
they had become his direct tenants
under s. 16(2) of the Act and on June 28, 1962, the appellants
filed a suit against both the landlord and the tenant in a civil
F
court claiming a declaration that they had in the circumstances
become direct tenants of the premises under the landlord.
On
June 30, 1962, the landlord sent a reply to the notices sent by
the appellants in which he denied that the sub-letting by the
tenant had been with his consent or was lawful. It does not
appear that the landlord had put his decree in execution for
G evicting the appellants.
One of the points canvassed in the High Court was whether
in view of s. 45 ( 1) of the Act a civil court was competent to
entertain the appellants' suit and it held that it was not and in
that view of the matter dismissed the suit.
The question is
H
whether the High Court was right.
The Act established certain aiuthorities called Rent Controlling
Authorities and gave them power to decide various matters. Sub-
130
SUPREME COURT REPORTS
[1966] l S.C.R.
section (I) of s. 45 states that "no civil court shall entertain any
A
suit or proceeding in so far as it relates ...... to any ......... .
matter. which the Rent Controlling Authority is empowered by
or under this Act to decide".
If, therefore, the suit related to a
matter which a Rent Controlling Authority had jurisdiction lo
decide. the civil court would have no jurisdiction to entertain it.
Now the appellant's suit was for a declaration that they had
become direct tenants under the landlord by virtue of s. 16(2)
of the Act.
That provision is in these terms :
S. 16. (I)
( 2) Where, before the commencement of this Act,
the interest of a tenant in respect of any accommodation
ha' been determined without determining the interest
of any sub-tenant to whom the accommodation either
in whole or in part had been lawfully sub-let, the subtenant shall, with effect from the date of the commencement of this Act !>.: deemed to have become a tenant
holding directly under the landlord on the same terms
and conditions on which the tenant would have held
from the landlord, if the tenancy had continued.
Clearly the appellants would not be entitled to the benefit of
this provision unless the sub-letting to them was lawful.
This is
where their difficulty arises.
Sub-section (2) of s. 15 deals with
the ca.>e of a sub-letting before the Act and provides for a notice
of the sub-letting being given to the landlord by the tenant and
the sub-tenant.
There is no dispute that the sub-Jetting to the
appellants was before the Act and they had given the notice. The
sub-letting, therefore, comes within sub-s. (2) of s. 15.
Then
we come to sub-s. ( 3) of s. 15 which provides, "Where in any
case mentioned in sub-section (2), the landlord contest' that the
accommodation was
not lawfully sub-let and an application is
made to the Rent Controlling Authority in this behalf, either by
the landlord or by the sub-tenant, within two months of the date
of the receipt of the notice of sub-Jelling by the landlord or the
issue of the notice by the tenant or the sub-tenant, as the Ca'IC
may be. the Rent Controlling Authority shall decide the dispute."
This sub-section empowers a Rent Controlling Authority to decide
whether a sub-letting was lawful where the landlord disputes that
the sub-letting was lawful, on an application made to it by either
party within the period mentioned.
When the Rent Controlling
Authorities have the power to decide the lawfulness ,,f the subletting, a civil court is plainly debarred from deciding that question by s. 45( l ).
Jn the present case the landlord did contend
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MAHMOOD V. TJKAM DAS (Sarkar, !.)
131
that the sub-letting was not lawful.
The appellants's suit was
filed within the period mentioned in sub-s. ( 3) of s. 15.
So the
Rent Controlling Authorities had the power to decide the question on which the appellants' suit depended. It follows that the
suit related to a matter which the Rent Controlling Authorities
had power to decide and no civil court was, therefore, competent to entertain it.
Hence we think that the High Court was
right in deciding that the suit had been filed in a court incompetent to entertain it, and in dismissing it.
It was said that a Rent Controlling Authority would have no
power to decide a dispute as to whether a sub-letting was lawful
where the notice mentioned ins. 15(2) had not been served, or
after the period mentioned in sub-s. ( 3) of that section had expired if it had not been moved earlier.
Another question mooted
was that the two months mentioned in sub-s. ( 3) only provided
a special period of limitation for the application mentioned in it
and the provision of the period did not mean that a Rent Controlling Authority had power to decide the matter only if an
application had been made within that period, so that if no such
application had been made, after the expiry of the period a civil
court would have jurisdiction to decide a dispute as to whether
a sub-letting was lawful.
The point is that the real effect of
s. 15 ( 3) was to deprive the civil court of the jurisdiction to
decide that dispute for all time.
We do not feel called upon to
decide these questions.
They do not arise in the present case
and it was not said that these questions affect the question of the
competence of the civil court to try the present suit. They clearly
do not.
The suit was filed within the period
of two months
during which admittedly the Rent Controlling Authorities had
jurisdiction to decide the dispute on which it was based. Whatever may be the jurisdiction of a civil court on other facts, in
the present case it clearly had no jurisdiction
to entertain the
appellants' suit.
It was said on behalf of the appellants that s. 15 ( 3) had no
application to the present case as the landlord had before the
appellants' suit was filed, obtained a decree against the tenant for
eviction.
We are unable to accept this contention.
There is
nothing in sub-s. ( 3) of s. 15 to indicate that it does not apply
to a case where a landlord has obtained such a decree. If in
spite of the decree the appellants had a right under the Act to
a direct tenancy under the landlord, they had a right to move the
Rent Controlling Authority within the period mentioned (now
expired) for a decision of the question that the sub-letting to them.
132
SUPREME COURT REPORTS
(1966) I S.C.R.
was lawful. If the Rent Controlling Authority had the power
A
to decide that question, a civil court would not be competent to
decide the dispute in a suit brought within that period.
So the
decree does not make a civil court, a court competent to entertain
the suit.
It was also said that as the landlord had not applied under B
sub-s. ( 3) of s. 15-and this is not disputed by the landlordthat provision is put out of the way and it must now be held
that the appellants had become direct tenants under him.
The
words of the sub-section lend no support to this
contention.
The appellants can claim the direct tenancy only when they establish that the sub-letting to them was lawful.
As they claim that c
right, they must establish it and they do not do so by the failure
of the landlord to move for a decision that the sub-letting was
not lawful. This contention of the appellants seems to us to be
untenable.
In any case it is difficult to appreciate how the failure
of the landlord to apply under s. 15 ( 3) would affect the question
of the competence of a civil court to entertain the appellants' suit
D
which had been filed before the time limited by the sub-section
for the landlord to apply to a Rent Controlling Authority had
expired.
We now come to sub-s. (2) of s. 45 of the Act which is in
these terms :
S. 45. (I)
(2) Nothing in sub-section (I) shall be construed
as preventing a civil court from entertaining any suit
or proceeding for the decision of any question of title
to any accommodation to which this Act applies or any
question as to the person or persons who arc entitled
to receive the rent of such accommodation.
It is said by the appellants that their suit raises a question of
title to the tenanted premises within the meaning of that word
as used in the sub-section.
This contention docs not seem to
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us to be well founded.
"Accommodation" has been defined in
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the Act as
a building, garden, ground, out-house, or garage
appurtenant to it, its fixtures and furniture supplied for use there
and also land not used for agricultur~l purpose.
The word,
therefore, refers to property of certain varieties and in our opinion
the words "title to any accommodation" in the sub-section mean
a right to or interest in property existing otherwise than under
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the Act and not those created by it.
It does not include a subtenant's right created by the Act to be treated under certain cirI
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MAHMOOD v. TIKAM DAS (Sarkar, J.)
133·
cumstances as the direct tenant of the landlord. This seems to·
us to be clear from the whole scheme of the Act, which is to
create certain rights and to leave them in certain cases to be
decided by the Rent Controlling Authority established under it,
quickly, inexpensively and summarily and with restricted rights of
appeal from their decision.
The object of the Act as disclosed
by its scheme would be defeated if civil courts were to adjudicate
upon the rights which it was intended the Rent Controlling Authorities would decide, with all the consequent delay, expense and
series of appeals.
Again if the civil courts had the power to
decide such rights, s. 15 ( 3) would be meaningless, for the decision
of the dispute as to whether sub-letting was lawful was necessary
only for establishing a sub-tenant's right to a direct tenancy under
the landlord under s. 16(2). Sub-section (2) of s. 45 was clearly
intended only to protect a right to resort to a civil court for the·
decision of a question as to an interest in property existing apart
from the Act concerning which . an adjudication may have been
incidentally made by a Rent Controlling Authority in deciding a
question which it had been expressly empowered by the Act to
decide.
We, therefore, think that sub-s. (2) of s. 45 does not
authorise a civil court to decide the dispute as to the lawfulness
of the sub-letting and does not therefore make it competent to
entertain the appellants' suit.
E
For these reasons, in our view, no civil court had jurisdiction
to try the appellants' suit and it was rightly dismissed as having
been filed in an incompetent tribunal.
The result is that the
appeal fails and is dismissed with costs.
Appeal dismissed •