LODHA J. -
(1.) A preliminary objection has been raised on behalf of the respondent in this case that no second appeal lies under section 22 of the Rajas-than Premises (Control of Rent and Eviction) Act, 1950.
(2.) THE plaintiff-appellant filed a suit under section 6 of the said Act for fixation of standard rent on the ground that he had taken the premises in question on rent from the Municipal Council, Jaipur on a rent of Rs. 80/- per month after executing the rent note dated 15th November, 1956, a copy of which has been placed on the record and marked Ex. 2. It was averred by the plaintiff that the rent agreed was excessive and therefore the standard rent may be fixed under the provisions of S. 6 of the Rajasthan Premises (Control of Rent and Eviction), Act, 1950. THE trial court after recording the evidence of the parties fixed the standard rent at Rs. 40/- per month. Aggrieved by the judgment and decree of the trial court the defendant-Municipal Council Jaipur filed an appeal which came up for disposal before the Court of Senior Civil Judge, Jaipur who by his judgment dated 9th September 1961 allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit on the ground that no relationship of landlord and tenant was proved between the parties. THE plaintiff, therefore, filed this second appeal before this Court.
The preliminary objection raised by Mr. Bhandari, learned counsel for the respondent, is that under section 22 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 only a revision can lie from the appellate judgment and decree passed by a court under that Act and a second appeal has been specifically barred under sub sec. (2) of sec. 22 of the Act. The objection is well founded and Mr. Vyas learned counsel for the appellant too conceded that the second appeal filed by his client is not maintainable. Faced with this situation the learned counsel for the appellant prayed that the appeal may be treated as a revision and I have accordingly treated it as a revision and heard it as such.
The learned Senior Civil Judge, Jaipur held that the contract of lease had not been executed as required by S. 42 of the Jaipur Municipalities Act, 1938, and consequently no relationship of landlord and tenant was created between the parties. It has however been brought to my notice that the case is governed by. The City of Jaipur Municipal Act, 1943, which had repealed the Jaipur Municipalities Act, 1938. That however does not make any difference for our purposes. Sec. 54; 7) of the City of Jaipur Municipal Act, 1943 provides that. "every contract entered into by or on behalf of the Municipal Board, other than a contract to which sub-sec. (6) applies, shall be in writing and shall be signed by the Chairman or Vice-Chairman and two other Municipal Commissioners, and shall be sealed with the common seal of the Municipal Board. Every contract to which sub-sec. (6) applies shall the Chairman of such committee or by such other individual, as is empowered in that behalf, in such manner and form as, according to the law for the time being in force, would bind such Chairman or individual if such contract were executed by him on his own behalf. " Sub-sec. (8) further provides that - "no contract shall be binding on the Municipal Board unless the requirements of this section shall have been complied with. "
It is common ground between the patties that no contract as envisaged by sec. 57 (7) of the Jaipur Municipal Act, 1943 was executed. The contention of the learned counsel for the appellant, however, is that even though a contract as required by the law was not executed the existence of relationship of landlord and tenant was proved by oral evidence led by the plaintiff and accepted by the trial court. He argued that section 90 of the Evidence Act did not operate as a bar against the admissibility of such oral evidence.
Mr. Bhandari, learned counsel for the respondent, has placed strong reliance on the judgment of their Lordships of the Supreme Court in ItS. Rikhy vs. The New Delhi Municipal Committee (1) wherein, in somewhat similar circumstances their Lordships were pleased to observe, "in order that the transfer of the property should be binding on the Municipal Committee, it is essential that it should have, as required by sec. 47 (Punjab Municipal Act, 1911) been made by an instrument in writing, executed by the President or the Vice President and atleast two other members of the Committee, and the execution by them should have been attested by the Secretary. If these conditions are not fulfilled, the contract of transfer shall not be binding on the Committee. The provisions of sec. 47 (3) of the Municipal Act are mandatory and are not merely directory. "where the statute thus makes it obligatory that there should be a contract in writing and duly executed by the persons authorised by the Act to do so, the absence of such a contract cannot be cured by the mere receipt of rent from the occupiers of the shops owned by the Municipality. There being thus no relationship of landlord and tenant between the Municipal Committee and the occupiers of shops in Municipal market, the occupiers having been allotted shops on the acceptance of their tenders, the Delhi and Ajmer Rent Control Act, 1952 does not apply and the application of the said occupiers under sec. 8 of the said Rent Control Act for the fixation of the standard rent is incompetent. "
In the City of Jaipur Municipal Act, 1943 also there is a similar provision contained in sub-sec. (8) of sec. 54 according to which no contract shall be binding on the Municipal Board unless the requirements of this section have been complied with. Thus the existence of a contract according to the terms laid down in the Act is a statutory requirement without which no valid and binding contract can come into existence. Hence there is no escape from the conclusion that no valid contract binding on the Municipal Council has come into existence on account of noncompliance with the provisions of sec. 54 (7) of the City of Jaipur Municipal Act, 1943. As a necessary corollary no relationship of landlord and tenant has been created between the plaintiff and the Municipal Council, Jaipur. Consequently the plaintiff cannot maintain the suit for fixation of standard rent against the Municipal Council, Jaipur and the suit must be dismissed as incompetent.
No other point was argued before me.
The revision, therefore, fails and is hereby dismissed with costs. .