N.D. Ojha, J. - (1.) THIS is a defendants' appeal arising out of a suit for ejectment and arrears of rent. The respondent who is the landlord of the accommodation in dispute made an application against the appellant who was his tenant under Section 3 of U.P. (Temporary) Control of Rent and Eviction Act (U.P. Act No. 3 of 1947) for permission to file a suit for ejectment on the ground that he required the accommodation for his personal need. The Rent Control and Eviction Officer granted the requisite permission on February 26, 1970. On the basis of that permission the suit giving rise to the present second appeal was instituted by the respondent en March 28, 1970. In the meantime the appellant had filed a revision before the Commissioner against the order of the Rent Control and Eviction Officer dated February 26, 1970. The revision was allowed and the case was remanded by the Commissioner to the Rent Control and Eviction Officer for being decided afresh. Thereafter the Rent Control and Eviction Officer again granted the permission applied for by his order dated February 26, 1971. This order was upheld by the Commissioner on June 15, 1972. On a revision filed by the appellant. The order of the Commissioner was not challenged before the State Government Tinder Section 7-F of the Act aforesaid and became final.
(2.) THE suit had been instituted on the basis of the aforesaid permission as also on the ground that the appellant had denied the title of the respondent. It was contested by the appellant and was dismissed by the trial court on November 25, 1972. The Munsif recorded a finding in favour of the appellant that he had not denied the title of the respondent. He also held that since the Commissioner in the revision filed by the appellant had passed an orded on March 21, 1970, staying the operation of the order dated February 26, 1970, the suit filed on the basis of the said order on March 28, 1970, was not maintainable. The Munsif further held that the fact whether the order of stay had or had not been communicated to the respondent was immaterial. On appeal by the respondent the appellate Court recorded a finding that the order of stay was communicated to the plaintiff for the first time on March 31, 1970, and since the suit had been filed prior to that on March 28, 1970, the suit was maintainable. Before the appellate court a further contention was raised on behalf of the appellant that since the order dated February 26, 1970, on the basis of which the suit had been filed was set aside by the Commissioner, the suit ceased to be maintainable. It was also urged that the permission granted subsequently on February 26, 1971, could not enure to the benefit of the respondent inasmuch as the said order had been passed after the suit had been instituted. The appellate Court did not agree with this submission and relying on the decision of the Supreme Court in Purshottam Das v. Smt. Raj Mani Devi 3968 A.L.J. 1023 took the view that the suit was maintainable and was liable to be decreed. The finding that the appellant had not denied the title of the respondent was upheld by the appellate court. The appeal was allowed and the suit for ejectment decreed on the finding that the respondent had obtained permission under Section 3 of U.P. Act No. 3 of 1947 and the suit on its basis was maintainable. Aggrieved by the decree of the lower appellate court the tenant has preferred the present second appeal. The only point which was urged in support of the appeal by learned counsel for the appellant was that since the order dated February 26, 1970, had been set aside by the Commissioner, even though the suit when filed had been validly instituted it ceased to be maintainable after the permission was set aside by the Commissioner. In continuation it was also urged that the subsequent order dated February 26, 1971, passed by the Rent Control and Eviction Officer granting permission could not validate the institution of the suit which had been filed much earlier on March 28, 1970. Having heard learned counsel for the parties I am of opinion that the submission made by learned counsel for the appellant cannot be accepted. The relevant provisions of Section 3 of U.P. Act No. 3 of 1947 are: "Section 3. Restrictions on eviction-(1) Subject to any order passed under sub-section (3). no suit shall, without the permission of the District Magistrate, 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) ............................ (3) The Commissioner shall hear the application made under sub-section (2), as far as may be, within six weeks from the date of making it, and he may, if he is not satisfied as to the correctness, legality or propriety of the order passed by the District Magistrate or as to the regularity of proceedings held before him, alter or reverse his order, or make such other order as may be just and proper. (4) .........................."
(3.) IN S. K. L. Jain v. Mani Ram 1975 A.L.J. 341 the requisite permission to file a suit had been granted by the Commissioner and a suit had been filed within four days thereof. It was held that there was no law which required a landlord to wait for the tenant to approach the State Government and to obtain a stay order. A similar view was taken in Ram Saran Dhondha Ram v. I Additional Munsif, Azamgarh and others 1965 A,L.J. 964 where it was held that the landlord was under no obligation to wait for the tenant to approach the Commissioner and obtain orders under sub-section (3) of Section 3 of the Act aforesaid. It is thus clear that on the permission being granted on February 26, 1970, it was not incumbent upon the landlord to have waited for 30 days, which is the time prescribed for filing a revision to the Commissioner under sub-section (2) of Section 3, before instituting a suit on its "basis. In the instant case, however, it will be seen that the suit had actually been instituted after waiting for more than 30 days. The order dated February 26, 1970, was set aside by the Commissioner and the case was remanded for being decided afresh. Subsequently the application for permission was again allowed on February 26, 1971. It is the effect of the order of remand passed by the Commissioner which has to be considered in the present appeal. In Purshottam Das's case (supra) the facts were that the requi- site permission was granted by the Rent Control and Eviction Officer on October 11, 1961. A suit was instituted on its basis on October 14, 1961. On March 27, 1962, the Commissioner revoked the permission granted by the Rent Control and Eviction Officer. Against that order k the landlord made an application to the State Government under Section 7-F of the Act. The State Government set aside the order of the Commissioner on March 30, 1963, and gave leave to the landlord to file the suit with effect from July 30, 1963. From the facts of that case it is clear that the State Government had granted a fresh permission which was to be effective from July 30, 1963. It was urged in that case that the suit was not maintainable as instituted on October 14, 1961. This plea was repelled and it was held: - "The order of the State Government after stating that in the interest of justice the house should be available to the landlord for his use, set aside the Commissioner's order under Section 3(3). The result was that the order of the Rent Control and Eviction Officer passed under Section 3(1) stood restored. The further direction in the order that the landlord 'is advised to file a suit for eviction from the house in dispute against the opposite party in a civil court under Section 3 of the Act, which will be applicable four months after the date of the order' really means that the permission under Section 3(1) would become effective on the expiry of 4 months. The landlord had thus an effective permission to institute the suit under Section 3 (1) on the expiry of four months from March 20, 1963, that is to say, as from July 30,1963. The decree in the suit was passed on March 2, 1964. On that date the landlord had a valid permission to institute the suit. The suit was therefore maintainable." ;