- (1.) THIS petition arised out of the proceedings which were initiated by the filing of a suit by the landlord for the eviction of the tenant.
(2.) THE facts, in brief, are these. A suit was filed by the respondent No. 3 as the landlord for the eviction of the petitioner who was the tenant. Arrears of rent and damages were also claimed. THE suit for eviction was dismissed but so far as the relief for rent was concerned, it was observed in the judgment that as the money had been deposited in the Court by the defendant therefore, no relief was needed to be given to the plaintiff landlord. However, a direction was given that the money so deposited in the Court, could be withdrawn by the plaintiff. THEreafter, a revision was filed and the same was allowed by the lower Revisional Court by its judgment dated 19-5-1975. THEreafter, a second revision was filed in this Court and during the pendency of the said revision in this Court an application under S. 40 read with S. 39 of the U. P. Act No. XIII of 1972 was given by the petitioner. By an order dated 8th Oct. 1975 the Court permitted the petitioner to make the deposit subject to objections, if any, filed by the landlord. In the judgment of this Court dated 15th Sept. 1978, it has been observed that no objection was filed by the landlord, and, therefore, the said application under S. 40 read with S. 39 of the Act was allowed. Subsequently, this Court by its judgment dated 15th Sept. 1978 allowed the revision and sent back the case to the lower Revisional Court for deciding whether the deposits and other conditions laid down in Ss. 39 (sic ). After determining the said controversy, the lower Revisional Court was directed to decide whether the landlord was entitled to a decree for eviction or not. When the case went back to the lower Revisional Court, it carried out the directions given by this Court and held that the tenant was not entitled to the benefit under S. 40 read with S. 39 of the Act and was therefore, liable to be ejected because there was a shortfall in the deposit made by the tenant. A true copy of the lower Revisional Court 's decision dated 12-12-1979 is Annexure-3 to the petition. A certified copy of the said order is also on the record. Feeling aggrieved, the petitioner has come up in the instant petition and in support thereof, I have heard Sri S. N. Misra, learned Counsel for the petitioner and in opposition. Sri Ravi Kiran Jain, learned Counsel for the landlord has made his submissions.
(3.) SRI Misra contended that the view of the lower Revisional Court, that there was a shortfall in the deposit, is not correct. He contended that once the application under S. 40 read with S. 39 of the Act had been made in this Court in the aforementioned revision and no objection had been filed by the landlord to the same, it is not open to the landlord to contend now that the said application under S. 40 read with S. 39 of the Act was not maintainable. He further contended that the landlord submitted to the jurisdiction of this Court in the aforesaid revision and he cannot now call in question the orders passed in the said revision. The learned Counsel for the petitioner in this connection placed reliance on the well known decision of the Supreme Court in M/s. Pannalal Vinjraj v. Union of India (AIR 1957 SC 397), which was a case under the Indian Income-tax Act 1922. In para 45 the Supreme Court laid down as follows:- "there is moreover another feature which is common to both these groups and it is that none of the petitioners raised any objection to their cases being transferred in the manner stated above and in fact submitted to the jurisdiction of the Income-tax Officers to whom their cases had been transferred. It was only after our decision in Bidi Supply Co. v. Union of India (AIR 1956 SC 479) (supra) was pronounced on 20th March, 1965, that these petitioners woke up and asserted their alleged rights, the Amritsar group on 20th April, 1956, and the Raichur group on 5th Nov. 1956. If they acquiesced in the jurisdiction of the Income-tax Officers to whom their cases were transferred, they were certainly not entitled to invoke the jurisdiction of this Court under Art. 32. It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this Court (Vide Halsbury's Laws of England, Vol. II, 3rd Edn. , p. 140, para 165, Rex v. Tabrum, Ex Parte Desh, (1907) 97, LT 551, O. A. O. K. Lakshmanan Chettiar v. Corporation of Madras, (1927) ILR 50 Mad 130 : (AIR 1927 Mad 130 ). ") In the said Supreme Court decision the vires of S. 5 (7-A) of Income-tax Act 1922 were being questioned. The said provision enabled the Commissioner of Income-tax to transfer any case from one I. T. O. subordinate to him to another and the Central Board of Revenue to transfer any case from any I. T. O. to another. While rejecting the challenge to the vires of the said provision, it was laid down as follows (at p. 409) : "there is no fundamental right in an assessee to be assessed in a particular area or locality. Even considered in the context of S. 64 (1) and (2) of the Act. this right which is conferred upon the assessee to be assessed in a particular area or locality, is not an absolute right but is subject to the exigencies of tax collection. The difference, if any, created in the position of the assessee qua others who continue to be assessed by the Income-tax Officer of the area in which they reside or carry on business is not a material difference but a minor deviation from the general standard and would, therefore, not amount to the denial of equal rights (per Mukherjea, J. , as he then was in State of West Bengal v. Anwar Ali Sarkar (at p. 325 of 1952 SCR 284) : (at p. 90 of AIR 1952 SC 75) (supra ).) There is also the further fact to be borne in mind that this inconvenience to the assessee is sought to be minimised by the authority concerned transferring the case of such assessee to the Income-tax Officer who is nearest to the area where it would be convenient for the assessee to attend and if, on account of administrative exigencies this is not possible and the assessee requests that the examination of accounts or evidence to be taken should be in a place convenient to him, by the Income-tax Officer complying with the request of the assessee and holding the hearing at the place requested. We are bound to take this statement contained in para 5 of the affidavit of Sri V. Gouri Shanker at its face value and if this is done as it should be, the assessee will not be put to any inconvenience or harassment and the proper balance between the rights of the subject and public interest will be preserved. ";