St. Jones School vs Spl. Judge, E.C. Act and another

R.H. Zaidi, J.—By means of this petition under Article 226 of the Constitution of india, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 14.1.1998 passed by Special Judge [B.C. Act), acting as revisional court.

It appears that petitioner who is the tenant of the building in question deposited amount of rent from 1.7.86 to 31.8.91 on 10.9.91 in the Court of Munsif u/s 30 of the Act in Case No. 171 of 1991 and prayed for permission to continue to deposit the rent in the Court. The respondent No. 2 objected to and opposed the application filed by the petitioner. The trial court (Munsif) by his judgment and order dated 11.2.1995 allowed the application ; but only for the period ending on 31.12.93 without prejudice to the rights of the parties. The application filed by the petitioner for depositing the amount of rent u/s 30 for permission to deposit the amount of rent was rejected for the period commencing from the enforcement of U. P. Act No. V of 1995, as the buildings owned by Waqf-al-aulad were taken out of purview of the said U. P. Act No. XIII of 1972.

Aggrieved by the judgment and order passed by the Munsif, respondent No. 2 filed a revision before the Court below u/s 115. C.P.C. The revisional court held that after enforcement of U. P. Act No. V of 1995, the provisions of the Act ceased to apply to the buildings belonging to or vested in Waqfs including the Waqf-alal-aulad. The Court below allowed the revision ; but permitted the petitioner to withdraw the amount deposited in Case No. 17 of 1991 and to deposit the same in S.C.C. Suit which was pending in the Court of Judge Small Causes, with the observation that the said deposit shall be without prejudice to the rights of the parties and the effect of such deposit shall be determined In the ejectment suit, by his judgment and order dated 14.1.1998.

Learned counsel for the petitioner submitted that the revision filed by respondent No. 2 u/s 115. C.P.C. against the order passed by the Munsif was legally not maintainable as the orders passed u/s 30 of the Act were not amenable to the Jurisdiction of the revisional court u/s 115. C.P.C. It was also urged that after withdrawal of the amount from the Court of Munsif, the petitioner shall be required to deposit the amount of rent with interest. The petitioner will thus suffer financial loss without any fault on his part.

I have considered the submissions made by the learned counsel for the petitioner and perused the record.

So far as the maintainability of revision u/s 115. C.P.C. is concerned, the revision u/s 115. C.P.C. can be filed before the High Court or District Court, in cases arising out of original suits or other proceedings and that Court may call for the record of any case, which has been decided by any Court subordinate to High Court or District Court, as the case may be and in which no appeal lies, if such subordinate court appears to have exercised jurisdiction not vested in it in accordance with law. The High Court or District Court, as the case may be, may pass such order in the case as it deems fit. The Court of Munsif is a Court subordinate to High Court and District Court. In the Act, there is no provision of appeal against the order passed by Munsif u/s 30 of the Act. The decision of a case under said Section comes within the definition of the term case decided as by means of an order under said Section the right of tenant to deposit or not to deposit rent in the Court is decided finally. Thus, against the order passed by the Munsif u/s 30 of the Act, revision could be filed before the District Judge and the same was rightly filed.

Section 7C of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 (U. P. Act No. XIII of 1947) was analogous to the provisions of Section 30 of the Act. The tenant in the cases covered by sub-sections (1) and (2) of Section 7C would deposit the amount of rent in the Court of Munsif having jurisdiction in the area where the accommodation was situated. Sub-section (3) of Section 7C of the said Act provides as under :

"7 (3). The deposit referred to in sub-section (1) or (2) shall be made in the Court of Munsif having jurisdiction in the area where the accommodation is situated."

Similar power to pass orders u/s 7B and Section 7E of the said Act was conferred upon the Court of Munsif. A question arose as to whether Munsif was a Court subordinate to district court or High Court and as to whether the orders passed by the Munsif were revisable u/s 115, C.P.C. A Full Bench of this Court in Chatur Mohan and others v. R. B. Dixit 1964 ALJ 256, ruled that a Munsif exercising Jurisdiction u/s 7E. of U. P. (Temporary) Control of Rent and Eviction Act. 1947, was a civil court and not a persona designate and that an order passed by him was revisable by this Court u/s 115. C.P.C.

While interpreting the provision of Section 30 of U. P. Act No. XIII of 1972, this Court relying upon the Full Bench decision in Chatur Mohan''s case referred to above, in the following cases ruled that order passed u/s 30 of the Act by the Munsif was revisable u/s 115, C.P.C. :

M/s. S. Chand and Company v. IInd Addl District Judge and others. 1985 (1) ARC 251.

Moolchand Motu Mal Tiwart v. Addl District Judge Ilnd and others 1985 (2) ARC 142.

Thus, now it is well-settled in law that order passed by the Munsif u/s 30 is amenable to the revisional jurisdiction of the District Court and of this Court u/s 115, C.P.C.

The submissions made by the learned counsel for the petitioner to the contrary, therefore, cannot be accepted.

The Court below nowhere directed the petitioner to deposit the amount of interest, therefore, the apprehension of the learned counsel for the petitioner that petitioner will have to deposit the amount of interest and will, therefore, suffer financial loss is baseless. The Court below permitted the petitioner to withdraw the amount from Case No. 171 of 1991 and to deposit the same in S.C.C. Suit with the observation that the effect of such deposit shall be considered by the Judge. Small Cause Court while deciding the suit. In case the petitioner is so advised, the petitioner may or may not deposit the amount of interest according to his choice. Since the Court below has left the controversy regarding validity of the deposit made by the petitioner wide open and permitted the Court to decide the same while deciding the ejectment suit on merits, the rights of the petitioner have not, in any manner, been prejudiced by the impugned order. No case for interference under Article 226 of the Constitution of India Is made out by this Court.

This writ petition, therefore, fails and is accordingly dismissed in limine.