Bapna, J - (1.) THIS is a revision against an order of the Sessions Judge, Bikaner, dated 23rd January 1952 and arises in the following circumstances.
(2.) ON 30th December 1947 the petitioners Ali Mohamad and Abdulla opposite parties applied to the Second Class Magistrate, Bikaner for ejectment of Gopaldass petitioner from certain premises belonging to them and let out to the said Gopaldass as a tenant. The petition was presented in pursuance of Notifications No. 80 dated 16th October 1946 and No. 19 dated 17th March 1947 issued by the Government of Bikaner. The allegation was that the premises were required by the landlords for their own use. Gopaldass raised various objections against his eviction but the learned Magistrate after enquiry ordered Gopaldass on 24. 6. 49 to vacate the premises. Gopaldass filed a revision in the Court of Session but the learned Sessions Judge rejected the same. Gopaldass has come up in revision in this court and it is contended on his behalf that the notifications under which the opposite party moved the Second Class Magistrate lost their force long before the application was made by the landlords and therefore the Magistrate had no jurisdiction in a matter like this. The protection of tenants against eviction was provided for the first time by the promulgation of the Prevention of Eviction Order 1942 by the Government of Bikaner in exercise of the powers vested in them by Rule 81 (2) (bb) (ii) of the Defence of India Rules 1939, published in the Bikaner Raj-patra of 27th June 1942. This is Notification No. 33 of 26th June 1942. This was amended by Notification No. 80 of 16th October 1946 by which the rigour of the earlier notification was mitigated and clauses (4) to (8) were added to the Prevention of Eviction Order 1942. One of the clauses permitted the landlord to evict a tenant if the house leased to a tenant was required for his own occupation. A further amendment was made by the Bikaner Government Notification No. 19 of 17th March, 1947 and the procedure for obtaining an order of ejectment was altered; and a landlord who required the leased premises for his own use was permitted to launch proceedings in the court of First or Second Class Magistrate having jurisdiction. The opposite party, who were landlords, in pursuance of these notifications had moved the Second Class Magistrate of Bikaner for an order of ejectment of the petitioner Gopaldass. It may be pointed out that all these notifications were issued by the Government in pursuance of Rule 81 of the Defence of India Rules. The argument of the learned counsel for the petitioner is that the Defence of India Act expired itself on the 30th September 1946 and the Defence of India Rules and orders passed thereunder automatically came to an end on that date; and the landlord's remedy for ejectment could only be sought under the ordinary law of the land in a civil court of competent jurisdiction. The Defence of India Ordinance was promulgated by the Governor General on 3rd September 1939 and this Ordinance was made applicable in the State of Bikaner by command of His Highness the Maharaja of Bikaner dated 5th September 1939 and published in the Gazette of the same date. The relevant portion is as follows : "his Highness the Maharaja has been pleased to command that the Defence of India Ordinance, 1939, and the Rules made thereunder shall, subject to the modifications specified in Schedules A and B hereto annexed be deemed as a special case which shall not form a precedent to be applicable in the State of Bikaner till such time as His Highness the Maharaja otherwise orders". The Defence of India Ordinance 1939 was replaced in India by the Defence of India Act 1939 on 29th September 1939. His Highness the Maharaja of Bikaner issued a second command an the 28th November 1939 published in the Gazette of the same date that "his Highness the Maharaja has been pleased to command that the Notification of 5th September 1939 shall be read as if the words "the Defence of India Act 1939" were substituted for the words "the Defence of India Ordinance 1939" where they occur in that notification and the references to the Ordinance were references to the Act. " Sub-sec. (4) of sec. 1 of the Defence of India Act provided that the Act shall be in force during the continuance of the present war and for a period of six months thereafter. It has been held by a Division Bench of this court recently in an unreported case The State vs. Meghraj, (1) (1953 R. L. W. 532.) Criminal Appeal No. 5 of 1952 decided on 26th February 1953 that the validity of the Defence of India Act 1939 came to an end in Bikaner as in other parts of India by virtue of sub-sec. (4) of sec. 1 of the Act, which was not altered by any of the modifications laid down by the Maharaja of Bikaner. Learned counsel for the opposite party contended that the order by which the Defence of India Ordinance or Act was made applicable in Bikaner said that the Act "to be applicable in the State of Bikaner till such time as His Highness the Maharaja otherwise orders"; and since no orders to the contrary terminating the operation of the Defence of India Act had yet been passed the Act continues to remain in force uptil now. This contention was fully examined by the Division Bench in the aforesaid case and it was held that the effect of that clause was only an indication reserving to the Maharaja of Bikaner the right to terminate the Defence of India Ordinance or Act even before its expiry according to sub-section (4) of sec. 1 of the Act. I am in respectful agreement with that interpretation and I accordingly hold that the Defence of India Act which replaced the Defence of India Ordinance 1939 came to an end on 30th of September 1946 and consequently also the Defence of India Rules and the orders made thereunder came to an end on the same date. The special provisions for moving a Magistrate for ejectment of a tenant thus stand repealed and the Second Class Magistrate had no jurisdiction to entertain an application of this nature. Learned counsel for the opposite party drew my attention to the fact that various other cases were launched in the courts of Magistrate after 1946 and some of the decisions were upheld by this court. It may be stated at once that the point now raised was not argued in any of those cases and therefore the result of this revision cannot be effected by the decisions in other cases. The revision is therefore accepted, the decision of the Second Class Magistrate, Bikaner dated 24th June 1949 is set aside and all proceedings on the petition of Ali Mohammad and Abdulla dated 30th December 1947 are quashed. . ;