MOHAMMAD SWALLEH & ORS. versus IIIRD ADDL. DISTRICT JUDGE, MEERUT & ANR.

Citation: [1988] 1 S.C.R. 840 · Decided: 04-11-1987 · Supreme Court of India · Bench: SABYASACHI MUKHERJI · Disposal: Dismissed
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Judgment (excerpt)

A 
MOHAMMAD SWALLEH & ORS. 
* 
v. 
HIRD ADDL. DISTRICT JUDGE, MEERUT & ANR. 
NOVEMBER 4, 1987 
B 
[SABYASACHI MUKHARJI AND G.L. OZA, JJ.] 
't-
U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) 
Act, 1972: s. 43(2)(rr) U.P. (Temporary) Control of Rent and Eviction -
Act, 1947: s. 3-Permission for eviction granted under s. 3 of the old 
c Act becoming final-First suit dismissed on technical grounds-
-f 
Application for eviction filed un.der s. 43(2)(rr) of the new Act-
Whether maintainable. 
Constitution 'of India, Arts. 226 & 136: Absence of provision in 
Statute for appeal-Erroneous order of Prescribed Authority set aside 
D by District Judge-Jurisdiction of Court to interfere with. 
Sub-section (1) of s. 3 of the U .P. (Temporary) Control of Rent 
and Eviction Act, 1947 barred suits without the permission of the Dis-
trict Magistrate against tenants for eviction except on the grounds 
mentioned therein. Sub-section (2) provided for revision to the 
~ 
E Commissioner, and sub-section (4) made the order of the Commissioner 
final. Section 7-F empowered the State Government to interfere wjth 
such orders. That Act was repealed by the U .P. Urban Buildings (Rego-
lation of Letting, Rent and Eviction) Act, 1972. 
-
Section 43(2)(rr) of the new Act, inserted therein by U.P. Act 37 
F of 1972, provided that where any permission obtained under s. 3 of the 
old Act had become final either before the commencement of the Act or ·-.I 
in accordance with the provisions of the sub-section after the comm-
' 
encement of the Act, the landlord may apply to the Prescribed Author-
ity for tenant's eviction. This section was against amended in 1976 by 
insertion of the words "whether or not a suit for the eviction of the 
G tenant has been instituted", and giving it retrospective operation. The 
order of the Prescribed Authority in such cases was made final. 
The landlord's application under s. 3 of the 1947 Act for eviction 
"! 
of the tenants-appellants was granted by the Commissioner in April,. 
1971. The revision preferred by them was rejected by the State Govern-
H ment in February, 1972 and the permission became final. In pursuance 
840 
MOHAMMAD SWALLEH v. IIIRD ADDL. DISTI. JUDGE 
841 
of the said permission the landlord filed a suit for eviction of the appel-
/': 
lants. Thereafter in 1973 he filed an application for withdrawal of the 
A 
said suit on the ground that as the 1972 Act had been amended, he 
would file an application for enforcement of the permission. 
--
The Court of Small Causes found that as the cause of action on 
which the suit had been filed was rendered infructuous, the suit was 
liable to be dismissed. The application filed by the landlord under s. 
43(2)(rr) of the new Act for eviction of the appellants, was rejected by 
the Prescribed Authority on the ground that since permission obtained 
under s. 3 of the old Act had been exhausted, the application was not 
maintainable. An appeal against that order was allowed by the District 
Judge. 
-*-· 
In the writ petition filed by the appellants-tenants under Art. 226 
of the Constitution it was contended that the permission obtained by the 
landlord having been utilised by filing the suit, another proceeding on 
the basis of the said permission could not be initiated, and that no 
appeal lay from the decision of the Prescribed Anthority to the District 
Jndge. The High Court held that the landlord had right to file the 
second application. It took the view that dismissal of the first action 
taken by the landlord after obtaining permission under the old Act did 
not preclude him from taking the second action under s. 43(2)(rr) of the 
Act. It further held that since the first suit was not decided on merits 
Y 
subsequent action was not precluded. 
Dismissing the api)eat by special leave, 
HELD: 1. Section 43(2)(rr) of the U.P. Urban Buildings (Regula-
tion of Letting, Rent and Eviction) Act, 1972 as it stood in 1973, peFmit-
B 
c 
D 
E 
ted a landlord to file an application for the enforcement of the permis-
F 
sion obtained by him under s. 3 of the 1947 Act. After the aforesaid 
provision was amended in 1976, the landlord was not required to file a 
suit to avail of the permission. The amendment was retrospective in 
operation. [844G-H] 
2. The Prescribed Authority was in error in taking the view that G 
as the previous suit had been filed by the landlord on the basis of 
permission and the same had been dismissed, the application under s. 
43(2
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