Prem Narayan vs Prabhoodayal

H.R. Krishnan, J.—This is an application praying that the order of the Rent Control Appellate Court (District judge) dated 17-9-1954 supporting the order of the Rent Controller d/3-3-54, determining fair rent payable by the tenant non-applicant should be set aside in exercise of supervisory jurisdiction under Article 227 of the Constitution. The points for decision are:--

(1) Whether section 7 (2) of the Madhya-Bharat Sthan Niyantran Vidhan (Accommodation Control Act) 15 of 1950, is mandatory or directory, when it provides that "If the tenant wishes to reduce the Rent agreed upon, he by giving notice in writing (Likhit suchana (sic)) to the other party, shall proceed for having the rent fixed under sub-section (4)"

(2) Whether in the event of such a notice being mandatory, it is sufficient if it had been served at an earlier state of the litigation when the older law, namely, The Gwalior Accommodation Control Ordinance (20 of 1948) was in force.

(3) Whether in the event of the special tribunals in charge of the enforcement of the Sthan Niyantran Vidhan holding that a notice served at the earlier stage is sufficient for the purposes of section 7 (2), it is an arguable point, or so patent a misapplication of the law as to call for the High Court''s interference in exercise of supervisory jurisdiction.

In two earlier decisions of the Madhya, Bharat High Court Akhtar Husain vs. Deshraj (1954 M.B.L.J. 953) (Gwalior S.B.) and Bindraban vs. Pannalol (1955 M.B.L.J. 1612) Gwalior D.B ). Nevaskar J. on difference of opinion with Dixit and Chaturvedi J. the same question has been answered; though there was no categorical finding on this, both the judgments have proceeded on the assumption that this provision is mandatory and non-compliance is a "flagrant ''breach'', going to the root of the suit." They have clearly ruled that a notice by the tenant that is going to bring a suit, if served at an earlier stage of the litigation before the enactment of Act 15 of 1950, is not sufficient compliance with section 7 (2) of that Act, and finally that the special tribunals under the Act, would, in holding that the notice was sufficient, be committing such a breach as to call for the High Court''s interference.

For reasons to be set out presently, after giving the most respectful consideration to these judgments of the Madhya Bharat High Court. I am of opinion that they err on the side of excessive technicality, disproportionate emphasis on mere form as over substance, in the manner expressly deprecated in the Supreme Court. Judgment ( Thakur Pratap Singh Vs. Shri Krishna Gupta and Others, . The present case is typical of those where the applicant who wanted and was entitled to an immediate decision on the merits, of his prayer for determination of fair rent has been, over a course of 9 long years, driven from pillar to post on inconsequential matters relating to mere form and without any bearing either on the merits of the question, or on the convenience and practibility of the procedure. Had the decision of the Madhya Bharat High Court been one definitely binding on the present Madhya Pradesh High Court, it might have been necessary to refer the question to a larger Bench, but as it is, it is persuasive only and it is open, subject to the Rules of the Madhya Pradesh High Court, to consider the question anew.

In 1948, the present respondent who is a tenant of a house, brought a suit under paragraph 5 (4) of the Accommodation Control Ordinance Gwalior State (20 of Samvat 2004,) before the Civil Judge, Morar, for the fixation of rent which he averred was excessive Unlike the subsequent enactments section 7 (2) of Act 15 of 1950, and section 9 (2) of Act 23 of 1955, this did not expressly provide that a notice or written information should be given to the other party before filing such a suit. Another difference was that the ordinance did not create any special courts for this purpose. They were created under Act 15 of 1950, and have been continued by Act 23 of 1955. All the same, it is common ground that before bringing the suit in the Civil Court the tenant, plaintiff-non-applicant, served a notice on the present applicants calling upon them to accept the reduced rent proposed, failing which he would file a suit.

While the suit was pending before the Civil Court at Morar, Act 15 of 1950 Sthan Niyantran Vidhan was enacted, which inter alia also repealed the Gwalior Ordinance 20 of Samvat 2004. There was no express provision in regard to cases pending before the Civil Courts. The Civil judge, Morar, however returned the plaint for being presented to the Rent Controller which was accordingly done on 29-5-1950. The defendants urged there that the suit should continue to be heard by the Civil Court, and further that the Rent Controller''s Court could not hear the suit because it had been filed without a notice u/s 7 (2) of the Act The Rent Controller accepted the contention of the defendants and dismissed the suit. Thereupon the plaintiff went up in appeal to the appellate authority, who is the District Judge, acting, however, under the special statute. He returned the plaint to the Rent Controller with a direction that he had jurisdiction and should try the case. As for the notice, this was after all a continuation of the old suit under the Ordinance and no notice was necessary. Whatever the merits of this decision, one would have expected the Rent Controller to straightaway proceed to hear the suit If the defendants, that is the present applicants, thought that it was a case for the supervisory jurisdiction of the High Court they could have come from that order dated 7-12-1950. Actually, the Rent Controller kept the case pending, but after on 30-5-1953, again returned the plaint under order 7 Rule 10 for being presented to Morar Civil Court because the Rent Controller held again that he had no jurisdiction. This was unusual and against the decision already given by the appellate court. Any way the plaintiff went up again to the appellate authority, who again returned the case to Rent Controller; while his predecessor, had observed that it was a continuation of the old suit the appellate Authority now observed (on 20-10-1953) that it was a fresh suit.

The Rent Controller now decided the case on merit and on 30-3-1954 determined the fair rent to be Rs. 270/- instead of Rs. 360/- p.a. Now the defendant-petitioner went up in appeal and the appellate authority dismissed it. Thereupon the present application has been filed. There are references to the merits but this Court is not concerned with them.

The applicant''s case is that in the event of this being treated as a suit under the Ordinance. the Rent Controller had no jurisdiction. If it is treated as a fresh suit under the Act again he has no jurisdiction, because a notice expressly u/s 7 (2) of the enactment has hot been served. The applicant also does not accept, that the notice admittedly served by the plaintiff before filing the suit in 1948, is equivalent to the notice or information required under the new enactment. The two judgments of the Madhya Bharat High Court, I have mentioned in the beginning, are as it were the sheet anchor of the applicant''s case.

As against it, the plaintiff-respondent has urged; firstly, that the provision in regard to notice or written information on is directory and not mandatory. Secondly, that the notice was given at the very initiation of the litigation, and further that the written information that a suit was for this purpose was going before the Rent Controller was given at his instance to the defendants on each of the several occasions in 1930 to 1953 when the matter went up and down. Thirdly, the plaintiff had urged that the Rent Controller and the appellate authority have taken a view and on what is even according to the applicant''s viewpoint an arguable question. Therefore, the High Court may not interfere.

The bare narration of the circumstances leading to this application, shows clearly how much of harassment and legalistic oppression is caused to the citizen by the courts making a fetish of some notice or information, without exercising wise discrimination and sorting out the directory from the mandatory provisions "along broad based, common sense lines" in the manner had down in the Supreme Court judgment. ( Thakur Pratap Singh Vs. Shri Krishna Gupta and Others, .

This distinction between mandatory and directory provisions of law is an old one; though it has been Sever possible to lay down cast iron tests; still it is possible to distinguish between the two in most instances. General speaking a mandatory provision is one which carries a penalty for non-observance; the penalty should be clearly indicated in the statute, though there is choice in regard to the form. Straight for ward instances are those where the statute is worded negatively; for example we have in section 80 Civil Procedure Code, that "nobody should institute a suit against Government without issuing notice and only after the expiration of 2 months etc etc.". In such cases there is no doubt. Another typical case is where the statute provides that Government may make rules; and that no rules will come into force, until after their publication in the gazette or they are approved by a resolution of the legislature. The same negative wording may also take the form of a proviso such as, "no such rules shall be made or come into force or no such suit shall be filed until such and such a thing is done". A third form may be that "the rule can be made", or "the suit can be brought" only after some prescribed step, is taken. When the penalty is indicated clearly there is no doubt of the provision being mandatory. When it is not, there is an equal chance of its being directory, whether it is one or the other, will in such an event, have to be ascertained with due regard to the purpose of the provision on "broad-based, common sense lines." In the absence of a penalty implied or express in the statute, it would be very unwise to make a fetish of mere form and letter, unless it is clear from the purpose of the statute that it is mandatory.

Section 7 (2) and 7 (4) of the Act 1, 15 of 190, runs thus.

The enactment is in Hindi, and not in English. The Act 23 of 1956 has exactly the same provisions numbered S. 9 (2) (4). This Act is also in Hindi, but the official print has an English translation in parallel columns, it being understood that the Hindi alone is authentic. Section 9 (2) is translated thus--

Where no rent for any such accommodation has been agreed upon or where the landlord wishes to enhance, or the tenant, wishes to reduce, the rent agreed upon, the landlord of the tenant, as the case may be, by giving a notice in writing to the, other party, shall proceed for having the rent fixed under sub-section (4).

Even in English the distinction between ''shall'' and may is of ten missed by the draftsman, and courts have repeatedly been cautioned against basing a decision merely on the use of one word of the other. When it is said that he shall proceed under sub-section 4, it meant that he shall not effect the reduction or enhancement on his own and if he wants a determination he shall do it only by a suit. As for the notice, the wording is not negative, nor is there the use of "only" (or in Hindi) nor it is said, that no suit will be entertained without the prior issue of notice or giving of written information. All that is said is that the party who wants to get the rent determined shall do it only by suit and he may proceed to file the suit after giving written information or notice Certainly as laid down in Bindraban vs. Pannalal (1955 M.B.L.J. 1612), the relief afforded is a special one, and one has to look to this statute and not outside, to ascertain the consequence of the failure to give the written information or notice. But the statute itself is altogether silent, does not expressly or by implication attach any penalty or disability to the non-issue of such notice.

So much from the semantic view point. Looking it from the common sense viewpoint it is obvious that the notice or written information is to be given only for the purpose Of affording the parties an opportunity of settling the matter out of court. If, for example a party rushes to the Rent Controller without issuing notice, it is open to the defendant on appearance to say that he was quite willing to accept the proposed rent and would have accepted it had he been noticed. So the proposal should be accepted, but the plaintiff should bear the costs of both parties. If, on the other hand, the defendant is not agreeable, he cannot make a grievance that he has not been given the notice, because notice or no notice, he was on warpath, and the suit was inevitable to sum up, if the penalty or disability consequent on the failure to issue a notice is laid down in the statute then it would not be for the courts to investigate why it has, been provided. But where it is not, courts have to see the purpose behind the provision, and decide whether it is served substantially, and not thrust a penalty which statute itself has not thought of. This is also the ruling in Tikaram vs. Hansraj (A.I.R. 1954 Nag 241 ), The Vice-chancellor, Utkal University and Others Vs. S.K. Ghosh and Others, and Thakur Pratap Singh Vs. Shri Krishna Gupta and Others, which follows (1940) 8 ITR 635 (Privy Council) I would find that the provision of Rule 7 (2) is a directory, failure to issue the notice or give written information in exactly the same terms and under that very section, is not a breach going to the root of the suit or affecting the jurisdiction of the Rent Controller.

It has been assumed by the M.B. High Court "Likhit suchna dena" is "issuing written notice". I have also discussed the problem on this basis; though it makes no difference in the present case, I am inclined to hold that "Likhit suchna" is something more general and more informal than "notice" it is, in fact "making written information available". The difference is that a notice is a definite single instrument, or ''letter'' whereas write in formation" may be an ensemble of a series of letters, or series of document like notices or summons. The service of the plaint at an earlier stage in another court and of the notices and memoranda in appellate courts-all these may amount to written information, though they may not be notice" as understood in the narrower Sense. In this case, however, there have been both a notice properly so called, and also repeated furnishing of "written in formation"

In the case of a mandatory provision the compliance should be to the letter In the case of a directory provision there need be only a general and substantial compliance with reference to the purpose of the statute. Whereas here, statute does not prescribe a particular form of notice that is also an additional indication that it is not mandatory, but only directory. But I am not at that point because that is obvious even from the other grounds. The test is (sic) the other side know from a letter or other instruments that the plaintiff is likely to move the Rent Controller for determining the rent Such a notice or in formation the applicants have had in abundance There was the notice Before fifing of the suit there were the multitudinous transactions involving written informant on during the contest in the civil court There were also 3 occasions of further contest before the suit was finally remanded to the Rent Controller in 1953. I find there has been substantial compliance with the requirements of S. 7 (2) which is only directory.

Thirdly a case like this brings out another issue of fundamental importance, to the exercise of supervisory jurisdiction by the High Court. This power is certainly a check on the other tribunals, breach of the is statute under which they have to function, and the High Court will be failing in its duty if it did not correct them. At the same time it has narrow scope than even the revisional powers. After, all there are issues, which are arguable, and it is undertane whether there has been any technical breach of form while there is no doubt that no prejudice has been caused, and there has been substantial compliance with the spirit. In such a case I am of opinion that the, High Court should not interfere under Art. 227 though it could when it has got powers of revision. The reason is that the tribunal has not gone patently wrong the real purpose of the statute having been served, and the rights of the citizens having been protected in the manner envisaged in the law. If this is forgotten and the High Court imposes on these tribunals its opinion in regard to a purely technical or formal question the very purpose of their creation will be frustrated. They are meant for adjustment of conflicting claims as those between landlords and tenants in a manner that is substantially just, put free from the elaborate and endless technical arguments which are only too common in the ordinary civil courts. Looked at that way also, I think that, this is a case in which the High Court should not interfere.

In the result, I would dismiss the application costs to the plaintiff-non-applicants and pleader''s fee of Rs. 100/- .

A.H. Khan, J.

The short question to be considered is whether according to Sec. 7 (2) of the Sthan Niyantran Vidhan (Madhya Bharat Act No. 15 of 1950), referred to hereafter as the ''Act'', it is possible to file a suit before the Rent Controller without giving a notice to the landlord under the Act.

My learned brother, Krishnan J. is of the opinion that the provision with regard to the notice is directory and not mandatory and that one can straightaway file a suit without giving a notice as required by the Act. He has translated the relevant portion of section 7 (2) of the Act thus:-

Where no rent for any such accommodation has been agreed upon or where the landlord wishes to enhance, or the tenant wishes to reduce, the rent agreed upon the landlord or the tenant, as the case may be, by giving a notice in writing to the other party shall proceed for having the rent fixed under sub-section (4).

The words "Landlord or tenant (as the case may be) by giving a notice in writing shall proceed to have the rent fixed" occurring in the passage are significant. In fact the word "shall" indicates that the proceedings shall be initiated by giving a notice in writing. This to me appears to be imperative. Precisely this question was considered by me as far back as year 1954 and in my judgment reported in 1954 M.B.L.J. 953 Akhtar Husein Munshi Bakar Husein vs. Deshraj Balmukund), I had held that the giving of a notice in writing Was a condition precedent to the starting of proceedings before the Rent Controller. The object of giving a notice under the Act obviously is to afford the opposite party an opportunity to consider the claim that is sought to be made under the Act and to settle it without recourse to the trouble and cost of litigation. It is to be remembered that the notice has to be in writing and not otherwise and the direction that it should be in writing indicates the intention of the Legislature. It was argued at the bar that the direction is not worded negatively such as is in Section 80 of the Civil Procedure Code. But there too, the requirement is that the notice should be in writing and this is common between Section 80 of the CPC and Section 7 (2) of the Act As to its being worded negatively, it depends upon the draft-men how he casts a particular provision. The same thing can be said in different words: the mould of words may be positive or negative, What really matters is the intention of the Legislature, which should be inferred from the words After reading the learned judgment of my learned brother, I still adhere to my earlier view.

I may be permitted to point out that the identical question was also considered by a full Bench of the Madhya Bharat High Court ( 1612 M.B.L.J. 1955 , Brindaban vs. Pannalal) consisting of my learned brother Dixit, Chaturvedi and Newaskar JJ. and they held (Chaturvedi J. dissenting on another point) that the notice was a statutory requirement and that it was a condition precedent to the initiation of proceedings for the fixation of fair rent. Although my judgment was not referred to before the Bull Bench, but they arrived at the same conclusion independently Chaturvedi J. observed that the giving of a notice under the Act was not a mere matter of a procedure, but was mandatory and went to the very root of the jurisdiction of the Court and he referred to Craies on Statute Law (the Edition) pages 60 and 246. He, however, held that a notice given prior to the coming into force of the Act would be sufficient notice under the Act.

My learned brother, Dixit J. agreed with Chaturvedi J. that the provision was mandatory in so far as the right to have the fair rent determined was a new light not known to the common law. He referred to the observation of Wilies J. in Wolverhampton New Water Works C. vs. Hawkerfrt (1859) 7 W.R. 464 to the effect that where a right or liability not existing at Common law is created by a statute, which at the same time gives a special and particular remedy for enforcing it then the remedy provided by the statute must be followed according to the prescribed form. He, however, differed from Chaturvedi J. that a notice given before the commencement of the Act would be a valid notice for the purpose of Sec 7 (2) of the Act, because the notice must be one of an intention to have fair rent determined as defined in the Act. A notice given when the Act was not in existence cannot be said to be a notice in compliance with Section 7 of the Act. Thus there being a difference of opinion between the two Judges as to whether a previous notice before the Act could be treated as a notice under the Act, the question was referred to my learned brother Newaskar J., who agreed with Dixit J.

I shall briefly refer to the passing observation of my learned brother Krishnan J. that in such a case the High Court should not interfere under Art. 227 of the Constitution. In my judgment referred to earlier (A.I.R. 1955 M.B. 21), I have relied upon the observations of their Lordships of the Supreme Court (A.I.R. 1953 S.C. 54) to the effect that grave injustice and flagrant violation of law are the two paramount considerations by which a petition under Arts. 226 and 227 are to be governed. If the giving of the notice under the Act was a condition precedent to the invitation of proceedings, then the absence of a notice does not give jurisdiction to the Tribunal to proceed with the case and the decision is inflagrant v. violation of law.

For reasons stated above, I would allow the petition with costs throughout and set aside the proceedings because for want of jurisdiction they are null and void.

OPINION

Naik, J.

This case comes before me on a difference of opinion between Khan, J. and Krishnan, J. on the question of interpretation of section 7 (2) of the Gwalior, Indore and Malwa United State (Madhya Bharat), Sthan Niyantran Vidhan, Samvat 2006 (Madhya Bharat Act No. 15 of 1950), hereinafter referred to as the ''Madhya Bharat Act.''

The facts relevant for the purpose may shortly be stated. The petitioners are the landlords, while the respondent is the tenant of certain premises situate in Morar (former Gwalior State) In 1948, the Sthan Niyantran Visheshagya, Gwalior State, Samvat 2004 (hereinafter referred to as the Gwalior Ordinance) was in force in the Gwalior State. The Gwalior Ordinance provided that if for any reason the landlord or the tenant, as the case may be, claimed that the rent was inadequate, or excessive, he might institute a suit for fixation of rent in the Court of the Sub-Judge having jurisdiction as provided in the Ordinance. There was no provision for the giving of any notice before the filing of the suit (section 5 of the Gwalior Ordinance). The tenant, however, after giving a notice to the landlord of his intention to file a suit for fixation of rent in respect of the premises in his occupation, filed a civil suit in the Court of the Sub-Judge, Murar. In 1950, when the aforesaid suit was yet pending, the Gwalior Ordinance was repealed and replaced by the Madhya Bharat Act. The Madhya Bharat Act made no provision saving the pending suits and created a special forum, e.g., the Court of the Rent Controller, for the determination of rent, under the Act. It further required a notice to be given to the landlord before a suit was filed against him for the purpose: (see sub-sections (2) and (4) of section 7 of the Act). On coming into force of the Act, the Court of the Civil Judge, Morar, returned the plaint in the suit for presentation to the proper Court. The tenant (respondent) thereupon filed the suit, out of which the present petition arises, in the Court of the Rent Controller, Morar, without giving any fresh notice of his intention to file a suit for the fixation of rent. To this suit, the landlords inter alia, raised the objection, that it was not tenable as the tenant had filed it without giving a notice to them as required by sub-section (2) of section 7 of the Madhya Bharat Act. The reply of the tenant was that, he had already given a notice before filing his suit in the Court of the Sub-Judge, Morar, and that no fresh notice was necessary as the earlier notice amply satisfied the requirements of sub-section (2) of section 7 of the Madhya Bharat Act.

The trial Court decided the objection in favour of the landlords and dismissed the suit. The appellate Court reversed the finding of the trial Court and remanded the case for a decision on merits. On the final decision of the suit in favour of the tenant, the landlords have come up to the High Court under Article 227 of the Constitution for quashing the order of the Rent Controller on the ground that it was passed without jurisdiction as the condition precedent for the exercise of jurisdiction by him, e.g., the giving of a notice as required by sub-section (2) of section 7 of the Madhya Bharat Act, had not been complied with by the tenant respondent.

Sub-sections (2) and (4) of section 7 of the Madhya Bharat Act read as follows:--

According to Khan, J., the provision in sub-section (2) of section 7 regarding the giving of a notice was mandatory and that a notice had to be given under that sub-section after the Madhya Bharat Act came into force. He, therefore, held that a notice given prior to the coming into force of the Madhya Bharat Act was of no avail and consequently the order passed by the Rent Controller was without jurisdiction and had to be quashed. Krishnan, J., on the other hand, held that the provision regarding the giving of a notice was directory and not mandatory, and that the provisions of sub-section (2) of section 7 of the Madhya Bharat Act had been substantially complied with, in that a notice before the filing of the suit in the Court of the Sub-Judge, Morar, had already been given. He further held that there were multitudinous transactions between the parties involving written information during the contest in the Civil Court as also before the suit was finally decided by the Rent Controller in 1953, Further, in his opinion, in any case, as substantial justice had been done and the objection was only hyper-technical, it was not a fit case for interference under Article 227 of the Constitution.

As no specific points have been referred to me for decision and as I am of opinion that this is not a fit case for interference under Article 227 of the Constitution I need not enter into a detailed examination of the various points on which there has been a difference of opinion between Khan and Krishnan, JJ.

It is not disputed that before the filing of the earlier suit in the Court of the Sub-Judge, Morar, under the provisions of the Gwalior Ordinance, a notice had been given by the tenant to the landlords that the rent was excessive, that he wanted it to be reduced and that he intended to file a suit for the fixation of rent, if his demand for reduction of rent were not complied with. The question is, whether such a notice satisfied the requirements of sub-section (2) of section 7 of the Madhya Bharat Act.

Examining the provisions of that subsection, I find that the relevant provisions, omitting the unnecessary words, would read thus:

All that the sub-section required was that before a suit for the fixation of rent was filed, the tenant was to give a written notice ( ) to the landlord. What the notice was to contain was nowhere specified, but the context in which the words had been used clearly showed that the written notice was to be of the fact that the tenant desired get the rent fixed, where no rent had been agreed upon, or to get the agreed rent reduced. It is not disputed that such a notice had already been given and consequently, in my opinion no fresh notice was necessary.

It is, however, contended on the authority of the majority decision in Bindraban vs. Pannalal (1955 M.P.L.J. 1612) that what the section enjoined was that the tenant was to give a written notice of his intention to get the fair rent'' as defined in section 3 (e) of the Madhya Bharat Act, fixed and as the rent being as defined in the said Act could not be known before it came into force, any notice given before the Act came into force would be of no avail. Reliance is placed on the observations of Dixit, J. at P, 611, wherein he said:

But the point to be noted is that the notice must be a notice of an intention to have fair rent as understood in section 2 (e) (it should be 3 (e)) of the Act fixed. The notice may be in general words but the party served with the notice must understand that the notice is of the intention of the party giving the notice to get fair rent, as defined in the Act, determined. Clearly, a notice given before the Sthan Niyantran Vidhan came into force for the fixation of fair rent under the law then in force or the institution of a suit for that purpose cannot by any stretch of reasoning be regarded as a notice of an intention to have the fair rent computed according to section 2 (e) (Sic) of the Act of Samvat 2006. It would be inconsistent to say that the right to have fair rent, as defined in section 2 (e) (Sic), fixed is a right created by Sthan Niyantran Vidhan, Samvat 2006 and that therefore, the remedy and the form provided by Section 7 of the Act must be strictly followed and yet to say that a notice given when the Act was not in existence is a notice in compliance with section 7 of the Act. In my opinion, the notice given by the non-applicant of 15th September 1948 or his subsequent act of filing a suit in the Court of Judicial Officer, Kasba Gwalior. for settlement of fair rent can be of no avail to him in contending that the Rent Controller obtained jurisdiction to take proceedings u/s 7 of the Sthan Niyantran Vidhan Samvat 2006, It was necessary for the tenant to give a notice to the landlord of his intention to approach the Rent Controller for having fair rent, as defined in the Act, fixed.

There is no doubt some force in these observations, but in my opinion, in so construing the provisions of section 7 of the Madhya Bharat Act, we would be reading much more into those provisions than their language warranted. In the first place, the observations proceed on an unwarranted assumption that the suit to be filed was a suit for the fixation of ''fair rent'' as defined or understood in section 3 (e) of the Act does not in terms say that the suit shall be instituted for the fixation of ''fair rent'', nor does section 3 (e) define, or even give a clue for the definition of, ''fair rent''. No doubt, we sometimes loosely say that the Rent Control Authority fixes ''fair rent'', but all that we mean thereby is that he fixes what he considers to be ''fair rent'', keeping in view the facts and circumstances established in the particular case. It is, therefore, fallacious to say that the notice is to be of the intention of the tenant to get ''fair rent'' as defined in the Act determined Secondly, the suit that was envisaged to be filed by a tenant under sub-section (4) of section 7 of the Madhya Bharat Act was a suit for the fixation of real. ( ) by the Rent Control Authority, provided that the tenant claimed that the rent payable by him was much more ( ) than ''fair annual rent'' ( ). ''Fair annual rent'' ( ) mentioned in the sub-section thus had relevance only for the purpose of giving a standard with reference to which the rent was to be fixed by the Rent Control Authority constituted for the fixation of rent thereunder. Lastly, on a plain reading of the section, the only notice required to be given under sub-section (sic) was of the tenant''s intention to get the rent fixed either because no rent had been agreed upon or because he wanted to get the agreed rent reduced, which could be done by agreement of the parties and without reference to any Court or tribunal. What rent a tenant could get fixed and under what circumstances he could get it so fixed, if and when he went to the ''Rent Control authority'' as provided under sub-section (4) of section 7 was not relevant for the purpose. In my opinion, as the position stands, it would be improper to import consideration of ''fair rent'', i.e. rent which the Rent Control Authority would have fixed if and when it was approached, when construing the contents of a notice u/s 7 (2) of the Madhya Bharat Act.

But, be that as it may, I need not examine the point in detail any further or give any final opinion on it because, in my opinion, the petition must fail for the reasons, that this is not a case in which the High Court would be justified in exercising its supervisory jurisdiction under Article 227 of the Constitution. The application for the fixation of rent was filed about nine years ago and the objection raised is hypertechnical. It shall also have to be (sic) in mind that, apart from the fact that a right had been given to the tenant to get the rent fixed through Court in case it was much more than the ''fair annual rent'' as defined in the Madhya Bharat Act. Section 7 (1) of the Act also provided that the rent payable by the tenant was to be the one agreed to between him and the landlord but that in no case it was to exceed the rent fixed on the basis of the ''fair annual rent'', as defined in the Act Such a rent has now been fixed. At best it could be said that it was fixed irregularly or even without jurisdiction but even so, the fact remains that the landlords in equity are now precluded from claiming any rent higher than that Consequently that ought to be the real payable by the tenant in respect of the premises in question. It has also to be borne in mind that the question of notice his no direct bearing on the quantum of rent as fixed under the Act. It is not suggested that the amount determined as ''proper'' or ''fair rent'' under the Act would have been different if the required notice had been given because the date on the basis of which it was determined would practically be the same. Consequently it is of academic importance how that rent came to be fixed and in any case the final result would not be different even if we interfered and the rent had to be determined afresh by the Rent Control Authority after a fresh notice had been given.

Power of superintendence given to this Court under Article 227 of the Constitution is an extraordinary power and is meant to be used in grave and exceptional cases to prevent miscarriage of justice. By its very nature it is discretionary and is not available to a litigant as of right, and consequently this Court never interferes in its supervisory jurisdiction if substantial justice has been done. Even in case of want of jurisdiction, as held in Santosh Kumar vs. The King AIR 1952 Cal. 192, it is not obligatory on the High Court to interfere in the exercise of its power of supervision under Article 227 of the Constitution, where such interference is not called for to prevent a grave miscarriage of justice and where the interference would have eventually no effect on the decision at all.

I, therefore, agree with Krishnan J., that under the circumstances of the case it would not be proper for the High Court to interfere under Article 227 of the Constitution, even if the contention of the petitioners were technically correct.

I would, therefore, dismiss the application with costs.