Govind Rao vs Bhagwan

Bilgrami, J.—This Defendant''s second appeal arises out of a suit for recovery of Its. 268/- O.S. rent and for ejectment, instituted by the Respondent against the Appellant in the Munsiffs Court, Bhid. The Plaintiff claims that the Defendant had taken the house on rent with an agreement to pay Rs. 12/- per mensem. The period of lease has expired and the sum stated above, is due from him. The Defendant has set up his own title and denied all the allegations made in the plaint.

The trial Court held that it had no jurisdiction to entertain the suit for ejectment and passed an. order under Order 7, Rule (10), Code of Civil Procedure, returning the plaint so far as it related to that claim and decreeing the suit for rent. Against this decision both the parties appealed to the District Court. The District Judge dismissed the Defendant''s appeal and allowing that of the Plaintiff decreed the suit both for ejectment and rent. Against this, two appeals have been preferred by the Defendant, No. 14/2/- No. 135/2/1953. Since they arise from the same 1953 against the decree of ejectment and another judgment, they are decided together.

The learned advocate of the Appellant contests this appeal solely on the ground that the civil Courts are barred from entertaining suits for ejectment, the exclusive jurisdiction for which has been conferred on the Rent Controller u/s 8 of the Rent Control Order which was in force at the time when the suit was instituted, and also by virtue of Section 10 of the present Hyderabad Houses (Rent, Eviction and Lease) Control Act of 1954. I entirely agree; Section 8, para (I) runs as follows:

No tenant of a house shall be evicted from the house in execution of a decree or otherwise whether before the enforcement of this order or after it, except under an order'' mentioned'' in this paragraph.

This section confers undoubtedly an exclusive jurisdiction on the Rent Controller over actions in ejectment from houses, falling under the Order. The order of eviction could only be passed under that special law. The position is the same under the present Hyderabad Houses (Rent, Eviction and Lease) Control Act by virtue of Section 10. The view taken by the Madras High Court in - ''Muh- ammadimny v. M. Unniri'' AIR 1949 Mad 765 (A) was that under Clause (1), Section 8, Madras Non-Residential Buildings and Control Order of 1942, that the jurisdiction of executing a decree, and not passing a decree of eviction has been taken away from the civil Courts.

I think that the words, "in execution of a decree or otherwise" which occur in para (1) of Section 10, Hyderabad Houses (Rent, Eviction and Lease). Control Act, leave no room for any similar interpretation. There are two decisions of this High Court in which this matter has received consideration. In - ''Laxman Rao v. Rukmani Bai AIR 1952 Hyd 52 (B), a case in which the retrospective effect of para (1) of Section 8 was in question, Dr. M.S. Ali Khan J. held that it applied to pending cases; the eviction of a tenant under it by the civil Courts is barred. In - ''Mahomed Gous v. Karunissa Begum AIR 1951 Hyd 111 (C), a Division Bench Las, while considering whether a notice to quit was necessary under the Transfer of Property Act in an action for eviction to which the Rent Control Order applied, observed that no tenant can be evicted except in due compliance of Section 8.

After the Full Bench decision in - ''Pannalal Lahoti v. State of Hyderabad AIR 1954 Hyd 129 (D), of this Court holding that this order was an emergency measure and on cessation of the emergency which was the second world war in this instance, the Rent Control Order expired, the present Hyderabad Houses (Rent, Eviction and Lease) Control Act was passed by virtue of Section 31 of which all the proceedings taken and order made under the former Act were validated and it was provided in Clause (c) of that section that they will be deemed to have been taken, or made under the corresponding provisions of the same Act.

The corresponding provision to Section 8 of the Order is Section 10 of this Act, in Clause (1) of when the words, "in execution of decree or otherwise" occur which also bar the jurisdiction for entertaining such actions.

The learned advocate of the Respondent relying on -''Mohd. Yasin v. Nawab Sail Nawaz Jung 38 D LR 246 (E), argues that if the Defendant denies the title the bar to the civil Court''s jurisdiction is removed. I do not agree. That case was decided before the amendment of Section 8. Besides this, in my opinion, it will be contrary to the principle that jurisdiction is determined by statement in the plaint and not by what is pleaded by the Defendant; to hold otherwise would mean that every tenant will be at liberty by setting up his own title, or denying that of the landlord to oust the jurisdiction of the Rent Controller.

What the position will be if the Plaintiff himself states in the plaint that the Defendant is denying his title, is a question that does not arise in this case and need not be decided.

So far as the claim for rent is concerned, the civil Court had undoubtedly jurisdiction to entertain it. The question arises whether the Court can return the plaint in respect of the claim not within its jurisdiction and give relief it is competent to grant. In my opinion, Order 7, Rule 10 cannot apply to a case where only a part of the claim is outside the jurisdiction as was held by the Allahabad High Court-Latu v. Sm. Mahalaxmi Bai AIR 1942 All 130 at page 134 (F), and the proper course to adopt is to dismiss the portion, falling outside the jurisdiction.

The Bombay High Court in - Shankar Govind Pathak Vs. Balkrishna Shankar Joshi, ''(C), the Lahore, High Court in -''Mathra Das v. Hakim Singh 16 Ind Cas 752 (II) and this Oudh Chief Court in -''Bhagwati Prasad Singh v. Govind Dat AIR 1917 Oulh 49 (I), have expressed the same view. I am unable to agree with the contrary view taken by the Patna High Court and the Allahabad High Court in - Secretary of State Vs. Natabar Mangraj, (J)and - Babu Kishori Lal and Another Vs. Ram Sunder and Another, (K).

In the result, the appeal is partly allowed and the decree passed by the Courts below is modified to this extent that the suit so far as it relates to ejectment is dismissed and decree for rent is upheld. Considering all the circumstances of the case, no order is made as to costs. This judgment will govern the connected Appeal No. 135/2/1953 and a copy of this may be attached thereto.