judgement:
Civil Appeal No. 468 of 1987.
768 From the Judgment and Order dated 19.7.
1985 of the Delhi High Court in Second Appeal No. 374 of 1980.
Madan Bhatia, N.D.B. Raju and Vineet Kumar for the Appellant.
Dr. L.M. Singhvi, K.B. Rohtagi, Praveen Jain and Baldev Atreya for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal by special leave is from the judgment and order of the High Court of Delhi dated 19th of July, 1985.
The appellant had.
made an application on or about 15th of July, 1976 before the Rent Controller to let out the premises for a period of two years under section 21 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Rent Act ').
The Rent Controller after recording the statements of the appellant and the respondent made an order permitting creation of limited tenancy only for a period of two years for residential purposes to which the respondent had agreed upon.
It may be material to refer to the fact that the appellant in his application under section 21 of the Rent Act had stated as follows: "1 do not require the premises for a period of two years from 15.7.76.
The purpose of letting shall be residential only and the premises are shown in the site plan exhibit A 1.
The proposed agreement is exhibit A 2.
Limited tenancy under section 21 of the Act may be allowed to be created for the said period.
" The respondent agreed to the aforesaid statement and stated as follows: "I have heard the statement of the petitioner and I accept it as correct.
I have no objec tion.
I shall vacate the premises after the expiry of two years from 15.7.76.
The purpose of letting shall be residential only".
Upon this the Rent Controller passed the following order: "This is an application filed under section 21 of the Act for permission to create limited tenancy for a period of two years from 15.7.76.
The purpose of letting shall be 769 residential only and the premises is shown in the site plan exhibit A 1.
The proposed agreement is exhibit A 2.
From the perusal of the statements of the parties I am satisfied that as at present the petitioner does not require the premises.
Therefore, limited tenancy is al lowed to be created for a period of two years from 15.7.76.
" The appellant filed an application on 6th November, 1978 for eviction of the respondent as the respondent had refused to vacate the premises in spite of his statement made before the Rent Controller.
The appellant filed an application on the said date under section 21 of the Rent Act on behalf of himself and his family members claiming possession of the premises for their bona fide need and use.
The appellant contended that he (the appellant) was a retired official and was living in a rented house while the respondent was a rich man doing business in jewellery and was also owning a house in Delhi.
In the application made under section 21 of the Rent Act the appellant had stated that the appellant owned a newly built house in the New Friends Colony comprising of dining, drawing, three bed rooms with attached bath rooms, a study room, family lounge and a garage.
The appellant had further stated that he did not require the premises for the personal residence for a period of two years.
The appellant had also stated in that application, that the appellant had agreed to let it out to the respondent for the first time on the terms and conditions set out in the proposed lease deed for a period of two years.
It was stated that the respondent had heard the statement and recorded that he had no objec tion and would vacate the premises after expiry of two years.
Subsequently, when the second appeal was pending in the Delhi High Court, the appellant had filed an application for early hearing in which he had stated that when the construction of the house in question was completed the appellant 's father R.B. Nanak Chand, advocate, was old and alone (the appellant 's mother had died earlier and other brother and sister being away from Delhi) and in view of his father 's ailing health the appellant was living with him in the rented premises at 4 Flag Staff Road, Delhi to look after his old and ailing father.
It was in those circum stances that the appellant had decided to let out the suit premises for a limited period of two years only.
It may be mentioned that the appellant 's father died two months after the Rent Controller had granted permission.
The Rent Controller after hearing both the parties on the 4th of January, 1980 held, rejecting the contention of the respondent, that section 21 of the Rent Act was not ultra vires.
Furthermore, he was 770 satisfied that a limited tenancy had been created and as such he granted permission for eviction.
Aggrieved by the aforesaid order the respondent preferred an appeal to the Rent Control Appellate Tribunal.
The Rent Control Appellate Tribunal upheld the eviction order.
On or about the 19th of July, 1985, being further ag grieved, the respondent preferred a second appeal before the High Court of Delhi.
The High Court of Delhi by the impugned judgment allowed the appeal on the ground that there was no ground stated in the application under section 21 of the Rent Act as to why a limited tenancy was intended to be made.
The High Court held that the order under section 21 of the Rent Act was a mindless order inasmuch as the respondent before it had not disclosed as to how the demised premises were being dealt with before creating the said alleged tenancy and why the respondent before it did not require the demised premises for the alleged period of two years and as to why the same would be required by him after the period of two years.
The High Court relying on the decision in the case of S.B. Noronah vs Prem Kumari Khanna, ; , held that the order in question in this case was a mindless order and in that view of the matter the order passed under section 21 of the Rent Act was not valid.
The High Court was of the view that there was no inquiry for the Controller to come to the conclusion on the basis of the material that the premises for which the permission was sought for creating a limited tenancy was in fact available for being let for a limited period only and in the absence of that, this was a mindless order.
The appellant has come up in appeal before this Court from the said decision.
The question, therefore, that arises for consideration of this Court is whether in view of the requirements of section 21 of the Rent Act, was the permission invalid? The main points upon which the High Court has relied are: first ly, on the materials put forward before the Rent Controller for sanction under section 21 of the Rent Act, no reason had been stated as to why the premises in question was not required for a limited period; secondly, it was not stated as to how the premises in question was dealt with; thirdly, the High Court was of the view that there was no writing and no lease registered after the permission was granted.
So far as the second ground, namely, as to how the premises in question was dealt with prior to the letting out in the 771 instant case the High Court was obviously and factually incorrect.
It was stated in the application for permission that it was agreed to be let out 'for the first time ' and secondly, it was stated that the appellant owned 'newly built house '.
Therefore two facts were clearly stated name ly, this was a 'newly built ' premises and further that there was no prior letting.
In the aforesaid facts and circum stances of the case therefore, it cannot be denied that how the premises in question was dealt with before the letting out had been clearly stated.
It is true however, that why the premises in question was stated by the appellant not to be required for a limited period had not been 'specifically ' stated at the time of seeking permission under section 21 by the appellant.
The appellant had stated that he did not require the premises in question for a period of two years.
He had not stated as to why he did not require the said premises for the said limit ed period of two years.
The question therefore is was it necessary to seek a valid order under section 21 to state that reason and if permission was granted on satisfaction of the Rent Controller on other conditions without being satis fied as to why the landlord did not require the premises in dispute for a limited period, the order would suffer from the vice of being a mindless order.
Such an order if other wise the conditions are satisfied would not be an invalid order.
In order to determine that question it is necessary to bear in mind the parameters and the purposes of section 21 of the Rent Act.
The Delhi Rent Control Act like other Rent Control Legislations had been passed to provide for the control of rent and eviction.
The Rent Acts all over the country came in the Wake of partition and explosion of population in metropolitan and new urban cities.
There are acute shortages of accommodation.
Very often these shortages and the demand for accommodation led to rack renting as well as unreasonable eviction of the tenants.
To meet that situa tion and to facilitate proper letting the Rent Acts were passed all over the country ensuring fair return to the landlords and giving the landlords the right of eviction for limited purposes and at the same time protecting the tenant from unreasonable eviction by the landlords.
This led to a series of litigations leading to long delays resulting specially in metropolitan cities like Delhi, Calcutta and Bombay in reluctance of many landowners who had vacant premises for letting out only for limited period either because of the family conditions or official commitments as they did not require the premises immediately and at the same time who were reluctant to part with the said premises on rent because of the long delay and the procedure that had to be followed to recover possession of those premises.
772 Section 21 of the Rent Act was an attempt to meet that reluctance.
Section 14 of the Rent Act controls the eviction of tenants and gives protection to the tenants against eviction.
It stipulates that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant unless certain specified conditions were fulfilled.
Those conditions were laid down in different sections and provisos thereof.
It is not necessary to set these out in detail.
As mentioned hereinbefore that led to a good deal of reluctance on the part of the landlords to part with the possession of the premises in their occupation because of the time and expenses consuming process involved for recovery of possession.
In order, therefore, to induce reluctant/potential landlords to create tenancies, section 21 was enacted for the benefit of the capital city of Delhi.
This is a new provision the unique provision made for the metropolitan city of Delhi.
Section 21 of the Rent Act reads as follows: "21.
Where a landlord does not require the whole or any part of any premises for a par ticular period, and the landlord, after ob taining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not, on the expiry of the said period, vacate such premises, then notwith standing anything contained in section 14 or in any other law, the Controller may, on an application made to him in this behalf by the landlord within such time as may be pre scribed, place the landlord in vacant posses sion of the premises or part thereof by evict ing the tenant and every other person who may be in occupation of such premises.
" An analysis of this section makes it clear that in order to attract section 21, the first condition is that the landlord does not require the whole or part of any premises for a particular period.
If that condition is fulfilled then the said landlord after obtaining the permission of the Controller in the prescribed manner lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not on the expiry of the said period, vacate such premises, then notwithstanding anything contained in section 14 or in any other law, the Controller may, on an application made to him in this behalf by the landlord 773 within such time as may be prescribed, order the eviction of the tenant.
Therefore the first condition must be that the landlord must not require the premises either in whole or part of any premises for a particular period.
Secondly, the landlord must obtain the permission of the Controller in the prescribed manner.
Thirdly, letting of the whole or part of the premises must be for residence.
Fourthly, such letting out must be for such period as may be agreed in writing.
Therefore, there must be an agreement in writing, there must be a permission of the Controller for letting out for a limited period, the landlord must not require the premises for a particular period and letting of the premises must be as a residence.
These and these alone are the conditions which are required to be fulfilled.
In Nagindas Ramdass vs Dalpatram Ichharam, ; ,the question was whether a compromise decree for evic tion could be passed because the Rent Act enjoined the eviction only on the satisfaction of the court.
The respond ent landlord in that case instituted a suit under the Bombay Rent Act, 1947 for possession against the tenant on two grounds, namely, arrears in payment of rent and bona fide requirement of the premises for personal use and occupation.
A compromise decree was passed.1 When the appellant applied for execution of the decree the tenant contended that the compromise decree had been passed by the Rent Court without satisfying itself as to the existence of grounds of eviction under the Act and hence being a nullity was not executable.
It was held by this Court that the public policy permeating this Act was the protection of tenants against unreasonable eviction.
Construing the provisions of sections 12, 13 and 28 of the Act in the light of the said policy, it should be held that the Rent Court under the Act was not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which was de hors the Act or ultra vires the Act.
The existence of one of the statut ory grounds mentioned in sections 12 and 13 was a sine qua non to the exercise of jurisdiction by the Rent Court.
Par ties by their consent could not confer jurisdiction on the Rent Court to do something which, according to the legisla tive mandate, it could not do.
But if at the time of the passing of the decree there was some material before the Court on the basis of which the Court could prima facie be satisfied about the existence of a statutory ground for eviction, it would be presumed that the court was so satis fied and the decree for eviction,though passed on the basis of the compromise would be valid.
Such material may be in the form of evidence recorded or produced or it may partly or wholly be in the shape of express or implied admissions made in the compromise agreement.
Sarkaria, J. speaking for the 774 Court held that admissions if true and clear were by far the best proof of the facts admitted especially when these were judicial admissions admissible under section 58 of the Evidence Act.
In that case the Court found because of the admission to pay the arrears of rent and mesne profits at the 'contractual rate and the withdrawing of his application for fixation of standard rent, that there was no dispute with regard to the amount of standard rent and there was an admission that the rent was in arrears.
The Court observed at pages 552 to 553 of the report as follows: "From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction, though apparently passed on the basis of a compromise, would be valid.
Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admissiOn made in the compromise agreement, itself.
Admissions if true and clear are by far the best proof of the facts admitted.
Admissions in pleadings or judicial admissions, admissible under section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions.
The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof.
They by them selves can be made the foundation of the rights of the parties.
On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive.
They can be shown to be wrong." The aforesaid principle must be borne in mind in order to judge the invalidity of the order passed under section 21 of the Act which was based on the statements made by the appellant and the respondent.
The facts of the case upon which great deal of reliance was placed by the High Court in the judgment under appeal and upon which the appellant relied very heavily are mentioned in the case of S.B. Noro nah vs Prem Kumari Khanna (supra).
There this Court reiter ated that section 21 of the Rent Act carved out a category for special treatment.
While no landlord could evict without compliance with sections 775 14, 19 and 20 of the Act, a liberal eviction policy could not be said to under lie in section 21.
The Court observed that the Parliament was 'presumably keen on maximising accommodation available for letting, realising the scarcity crisis.
One source of such spare accommodation which is usually shy is potentially vacant building or part thereof which the landlord is able to let out for a strictly limited period provided he had some credible assurance that when he needed it he would get it back.
The law sought to persuade the owner of the premises available for letting for a par ticular period by giving him a special assurance that at the expiry of that period the appointed agency would place the landlord in vacant possession.
Section 21 confined the special remedy to letting for residential uses only.
Parlia ment had the wholesome fear that if the section were not controlled by many conditions it might open the floodgates for wholesale circumvention of the rent control legislations by ingenious landlords exploiting the agonising need of houseless denizens.
Section 21 of the Act over rides section 14 precisely because it was otherwise hedged in with drastic limitations and safe guarded itself against landlords ' abuses.
The first condition was that the landlord did not require the demised premises 'for a particular period ' only.
That meant that he must indicate to the authority before which sanction was sought for letting what was the particular period for which he could spare the accommodation.
The Controller exercised an important regulatory function on behalf of the community.
The fact that a landlord and a potential tenant together apply, setting out the formal ingredients of section 21, did not relieve the Controller from being vigilant to inquire and satisfy himself about the requisites of the landlord 's non requirement 'for a particular period ' and the letting itself being 'as a resident '.
A fraud on the statute could not be permitted especially because of the grave mischief that might be perpetrated in such event.
The Court highlighted that it would be a terrible blow to the rent control law if section 21 were freely permitted to subvert the scheme of section 14.
Every landlord would insist on a tenant going through the formal exercise of section 21, making ideal averments in terms of that section.
The consequence would be that both the Civil Procedure Code which prescribed suits for recovery of possession and the Delhi Rent Control Act which prescribed grounds for eviction would be eclipsed by the pervasive operation of section 21.
Neither grounds for eviction nor suits for eviction would thereafter be needed, and if the landlord moved the Court for a mere warrant to place the landlord, through the Court process, in vacant possession of the premises, he 776 would get it.
No court fee, no decree, no execution peti tion, no termination of tenancy wish for possession and the Court was at your command.
The Court observed that such a horrendous situation would be the negation of the rule of law in this area.
When the application under Section 21 is filed by the landlord and/or tenant the Controller must satisfy himself by such inquiry as he may make, about the compulsive re quirements of that provision.
If he makes a mindless order, the Court.
when challenged at the time of execution will go into the question as to whether the twin conditions for sanction have really been fulfilled.
Of course, there will be a presumption in favour of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present.
The sanction granted under section 21, if it has been procured by fraud and collusion cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.
The doctrine of estoppel cannot be invoked to render valid a proceeding which the legislature, has on grounds, of public policy subjected to mandatory conditions which are shown to be absent.
As be tween unequals the law steps in and as against statutes there is no estoppel, especially where collusion and fraud are made out and high purpose is involved.
Law that non performs stultifies the rule of law and hence the need for strict compliance.
Or else, the sanction is non est.
Collusion between the strong and the weak cannot confer validity where the mandatory prescriptions of the law are breached or betrayed.
An analysis of this judgment which has been applied in the various cases would indicate that section 21 only gives sanction if the landlord makes a statement to the satisfac tion of the court and the tenant accepts that the landlord does not require the premises for a limited period; this statement of the landlord must be bona fide.
The purpose must be residence.
There must not be any fraud or collusion.
There is a presumption of regularity.
But it is open in particular facts and circumstances of the case to prove to the satisfaction of the executing court that there was collusion or conspiracy between the landlord and the tenant and the landlord did not mean what he said or that it was a fraud or that the tenant agreed because the tenant was wholly unequal to the landlord.
In the instant case none of these conditions were fulfilled.
There is no evidence in this case that when the landlord 777 stated that he did not require the premises in question for a particular period, he did not mean what he stated or that he made a false statement.
There was no evidence in this case at any stage that the tenant did not understand what the landlord was stating or that he did not accept what the landlord stated.
There was no evidence that either the tenant was in collusion or perpetrating any fraud with the landlord or the tenant was unequal to the landlord in bar gaining powers.
It is manifest that there is no evidence to show that the Controller did not apply his mind.
If that is so then on the principle enunciated by this Court in Noro nah 's case, this sanction cannot be challenged.
It is not necessary to state under section 21 the reasons why the landlord did not require the premises in question for any particular period.
Nor is there any presumption that in all cases the tenants are the weaker sections.
The presumption is, on the contrary, in favour of sanction, it is he who challenges the statement and the admission of.
the landlord or the tenant who has to establish facts as indicated in Nagindas 's case.
In V.S. Rahi and another vs Smt.
Ram Chambeli; , , this Court on the facts found that the permission under section 21 of the Act had been obtained by her on the basis of wrong statement, but for which the permission would not have been accorded.
These statements which were in the nature of half truths were apparently made in order to make good the plea that there was only a temporary necessity to lease out the building for a short period and that there was a bona fide anticipation that there would be a pressing necessity to reoccupy the premises at the end of the period.
which were the two crucial factors governing an order under section 21 of the Act.
It was stated that the appellants, in that case, who were the weaker of the two parties did not question the truth of the statements made by the respondent ,when the permission was granted.
But such collusion, if any, between the two unequal parties did not confer any sanctity on the transaction in question.
The observations of this Court in that case must be understood in the light of the facts mentioned by this Court.
It was found in Rahi 's case that there were wrong statements made by the appellant when he approached the Rent Controller.
It was admitted before this Court that it was a wrong statement.
These were mentioned in pages 295 296 of the Report.
What was urged was that the appellants being the tenants had colluded with the respondent.
It was reiterated by this Court, it is always open to the weaker of the two parties to establish that the transaction was only a camouflage used to cover its true nature.
When one party could dominate over the will of the other, it would not be a case of collusion but one of com pulsion.
The Court relied on the observations of Lord Ellen borough in Smith vs Cuff, 778 ; at 165 that it can never be predicted as pari delicto where one holds the rod and the other bows to it.
See the observations of this Court at pages 297 and 298 of the Report.
There is no evidence in this case that there was any wrong or incorrect statement made by the landlord nor is there any evidence that the tenant respondent herein was the weaker side of the bargain.
In that view of the matter the respondent cannot get much assistance from this decision of this Court.
This question was again considered by this Court in J.B. Vohra vs India Export House Pvt. Ltd. and another; , where Tulzapurkar, J. referring to Noronah 's case observed that section 21 carved out tenancies of particular category for special treatment and provided a special proce dure that would ensure to the landlord vacant possession of the leased premises forthwith at the expiry of the fixed period of tenancy, evicting whoever be in actual possession.
Such being the avowed object of prescribing the special procedure, service of a prior notice on the tenant upon receipt of the landlord 's application for recovery of pos session and inviting his objections followed by an elaborate inquiry in which evidence might have to be recorded would really frustrate that object.
It will be vitiated because it is procured by fraud practised by landlord for creating a limited tenancy.
If it is found that the initial order granting permission to create limited tenancy was vitiated by fraud practised by the appellant inasmuch as he had suppressed the fact that an earlier application for such permission had been declined on the ground that premises had been let out for commercial cum residential purposes and then there would be no executable order pursuant to which any warrant for possession could be issued under section 21 of the Act.
In the instant case, there is no such collusion and therefore, the principle of Noronah 's case would not be applicable.
The ratio of that decision must be understood in its proper light.
Section 21 of the Rent Act was examined by this Court in Smt.
Dhanwanti vs D.D. Gupta, [1986] 3 S.C.C. 1.
There was observed by Pathak, J. as the learned Chief Justice then was, that it was possible for the owner of a premises, on looking to the immediate future, to find that for certain reasons he was unable to occupy the premises forthwith himself but that he may do so later in the not very distant future.
The mere fact that the owner has let out the prem ises after obtaining permission under section 21 of the Act for a limited period, and thereafter on the expiry of that period has found it necessary to obtain permission to let out the premises again for another limited 779 period cannot necessarily lead to the inference that from the very beginning the premises were available for letting out indefinitely.
The Rent Controller and the Rent Control Tribunal should have examined the circumstances prevailing on each occasion when an application was made under section 21.
It was observed that assumption would not be justified where there is no positive material to indicate ' that from the very beginning there was never any intention on the part of the landlord to occupy the premises himself.
There was no such material in that case.
On the contrary there was mate rial showing that the landlady had expectation that her son and his family would be in Delhi after two years ' period of tenancy.
This is significant for the present issue.
There is nothing to show that the permission of the Rent Controller Was obtained by practising fraud or that it could be regard ed as a nullity or that material facts were concealed.
The principle of that decision will apply much more in this case.
It is observed in that decision that it seems to have been ignored altogether that it is perfectly possible for the owner of a premises, on looking to the immediate future, to find that for certain reasons, he is unable to occupy the premises forthwith himself but that he may do so later in the not very distant future.
It is not always that a man can plan his life ahead with any degree of definiteness.
Pre vailing uncertainty in the circumstances surrounding him may not permit clear sighted vision into the future.
The circum stances might justify his envisioning his need for the premises two or three years later, and therefore applying for permission under section 21 of the Act to let out the premises accordingly.
The facts are more stronger and clearer in support of the instant case.
Here there was no permission previously.
This was first letting out.
There was nothing which indicat ed that any statement was made which was incorrect.
We are of the opinion that sanction under section 21 in the instant case was not a nullity.
The onus was on the tenant to show that it was so.
He did not make any attempt to dislodge the presumption in favour of the permission.
Learned counsel for the appellant also stressed before us that section 21 of the Rent Act was a complete code by itself.
The order was under section 21 of the Rent Act.
No further question of lease or registered lease arose thereaf ter.
This question has been settled by series of decisions of the Delhi High Court upon which people have.
acted for long.
See the decision in Kasturi Lal vs Shiv Charan Das Mathur, [1976] Rent Control Reporter Vol.
8703 where at pages 708 709, Misra, J. of the Delhi High Court 780 had clearly indicated numerous cases where it was held that section 21 was a code by itself.
The order of the permission is itself an authority; no lease was necessary and if that is the state of law in Delhi, it is too late in the day to hold otherwise.
See the observations of this Court in Raj Narain Pandey and others vs Sant Prasad Tewari & others; , , where this Court observed that in the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should nor mally be adhered to and not to be disturbed.
A different view would not only introduce an element of uncertainly and confusion but it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions.
In Delhi transactions have been complet ed on the basis of permission and it was never doubted that there was any requirement of any lease or any agreement subsequent to the order and the same required registration.
It must be observed that in Noronah 's case there was no admission on oath nor was there any question of registered lease.
Numerous other decisions were cited before us but in the view we have taken on the two basic points that the permis sion was valid and the order permitting limited tenancy was not a mindless order but one passed after application of the mind taking the two relevant facts under section 21 of the Act into consideration, it is not necessary to discuss these decisions any further.
In view of the fact that section 21 is a code by itself, there was no question of any further agreement in writing which has to be registered arises.
There is no merit in the contention of the respondent.
There is another aspect of the matter which has to be borne in mind.
The tenant not only failed to establish any fact impeaching the order, he waited for the full term to take this point and did not contest when the permission was obtained on a misrepresentation.
It was submitted by Shri Bhatia that in Delhi most of the transactions have been done under section 21 on the assumption that after order of the court no further or separate document or lease was required to be executed or that such document or lease had to be registered.
It was submitted that numerous transactions have taken place on that basis.
It was urged that if it is now found that is not the correct position and the correct position in law is that there should be a lease containing the terms of the lease being for 11 months, such enunciation of law should only be made applicable prospectively.
Counsel for the appellant contended that otherwise it would have disastrous conse 781 quences of unsettling numerous decisions and unsettling many settled transactions between the parties.
He drew our atten tion to the decision of this Court in 1.
C. Golak Nath & others vs State of Punjab and another; , If we had any doubt on the scope and ambit of section 21, we might have considered this submission urged on behalf of the appellant provided we were sure, factually that large number of transactions had been completed on the assumption that no further lease was required after the permission under sec tion 21.
Our attention was also drawn to the decision of the Privy Council and the observation of Lord Blanesburgh in the case of Dhanna Mal and others vs Rai Bahadur Lala Moti Sagar, A.I.R. 1927 Privy Council 102.
If we were inclined to the view that section 21 was not a code by itself but re quired separate lease to follow it up then perhaps we might have considered the effect of the aforesaid decision and observations.
In aid of the submission that in order to be entitled to eviction under section 14 of the Rent Act, the court had to be satisfied itself that the statutory ground for eviction existed and that application of satisfaction of the court could not be by passed and circumvented by a compromise decree, reliance was placed on certain observations on a decision in Ferozi Lal Jain vs Man Mal and another, In view of the facts of the particular case, we are of the opinion that it is not necessary to discuss the said decision in detail.
Numerous decisions of the Delhi High Court were placed before us in support of or in respect of contentions of the parties specially in support of con tention that the Delhi Rent Act required a separate lease.
The scope and ambit of the Delhi Rent Act after the decision of Noronah 's case came up for consideration before a divi sion bench of the Delhi High Court in Vijay Kumar Bajaj vs Inder Sain Minocha, [1982] 2 Rent Control Reporter 392.
In that decision, in the light of section 21, the following questions were posed: (1) Whether the permission under section 21 of the Act is invalid in view of Supreme Court judgment in S.B. Noro nah 's case (supra), if reasons for not requiring the prem ises by the landlord for a particular period are not dis closed in his application or his statement before the Con troller? (2) Whether before or after permission execution of any agreement in writing to let the premises for the fixed period is necessary, if so, whether such a document requires registration? (3) Whether the proposed agreement of tenancy in writing sub 782 mitted along with the application under Section 21 of the Act, in this appeal required registration? The questions were answered by the High Court as follows: (1) Not necessarily.
The landlord or the tenant may be able to show that cogent reasons did exist or were within the knowledge of the parties as to why the landlord did not require the whole or a part of his premises for a specified period.
(2) No registration is necessary.
The agreement in writing may be entered into either before or after grant of permission.
(3) An agreement in writing submitted along with the application under section 21 of the Act is really a proposed agreement.
It comes into effect only after the grant of permission under section 21 of the Act.
It does not require registration.
We are in agreement with the views of the Delhi High Court.
Large number of decisions of this Court were cited in support of the contention that eviction decree passed in contravention of the statutory conditions or passed without consideration whether the statutory conditions are fulfilled or not are not binding and cannot be enforced.
See Bahadur Singh and another vs Muni Subrat Dass and another, and Kaushalya Devi and others vs Shri K.L. Ban sal; , We are, however, of the opinion that in view of the facts found in the instant appeal before us, these decisions are not of any relevance.
Similarly, our attention was drawn to the observations of this Court in Mansaram vs S.P. Pathak and others; , and State of Maharashtra vs Narsingrao Gangaram Pimple, 1, In the view we have taken and the real controversy in this case, this contention is no longer open.
On the unregistered lease question, our attention was drawn to a decision of the Delhi High Court in Jagat Taran Berry vs Sardar Sant Singh, A.I.R. 1980 Delhi 7.
As we have held that section 21 was a code by itself and no further document was required, it is not necessary to pursue the matter any further.
783 Similarly, our attention was drawn to a division bench judgment of the Calcutta High Court in the case of Ram Abatar Mahato vs Smt.
Shanta Bala Dasi and others, A.I.R. 1954 Calcutta 207 on the question of the terms and extent of section 107 of the Transfer of Property Act and whether a document in performance of an agreement had to be registered or not.
As mentioned hereinbefore in the view we have taken, it is not necessary for us to pursue this aspect any further as to the question whether oral evidence should be intro duced to explain the terms of a document embodied in writ ing.
Our attention was drawn to certain observations of this Court in State of Uttar Pradesh vs Singhara Singh and oth ers, [19641 4 S.C.R. 485 but the same are not relevant for our consideration in the present controversy in the light in which we have understood it.
Equally same is the decision in respect of the observations of Fazal Ali, J. of the Jammu and Kashmir High Court in Ishwar Dutt and another vs Sunder Singh and others, and the observa tions of this Court in Sri 5 Sita Maharani and others vs Chhedi Mahto and others, A.I.R. [1955] S.C. 328.
In the aforesaid light we are of the opinion that the High Court was in error in the view it took in setting aside the decision in the second appeal.
The appeal is, therefore, allowed and the order and judgment of the High Court of Delhi dated 19th of July, 1985 are set aside and the order and judgment of Rent Control Tribunal dated 28th of August, 1980 are restored.
The appellant is entitled to the costs of this appeal.
P.S.S. Appeal allowed.

summary:
The appellant made an application before the Rent Con troller on or about July 15, 1976 to let out the premises to the respondent for residential purposes for a period of two years under section 21 of the Delhi Rent Control Act, 1958 as he did not require the premises for that period.
The respondent agreed before the Rent Controller to the above statement of the appellant and undertook to vacate the premises after the expiry of two years from July 15, 1976.
Accordingly, the Rent Controller made an order allowing creation of a limited tenancy for a period of two years from July 15, 1976.
The respondent having refused to vacate the premises after two years, the appellant filed an application under section 21 on behalf of himself and his family members claiming possession of the premises for their bona fide need and use.
The Rent Controller passed an eviction order and the Appellate Tribu nal upheld the same.
The High Court allowing the appeal of the tenant re spondent held that the order under section 21 of the Act was a mindless order inasmuch as no reason had been stated as to why the premises in question was not required for a limited period, that it was not stated as to how the premises in question was dealt with before creating the said tenancy and that there was no writing and no lease registered after the permission was granted.
Allowing the appeal by special leave, 766 HELD: 1.1 The permission granted by the Rent Controller under section 21 of the Delhi Rent Control Act was valid.
The order permitting limited tenancy was not a mindless order but one passed by him after taking the relevant facts into consideration.
[780D] 1.2 In order to attract section 21 of the Act, it is necessary firstly that the landlord must not require the premises either in whole or part for a particular period; secondly, the landlord must obtain the permission of the Controller in the prescribed manner; thirdly, letting of the whole or part of the premises must be for residence, and fourthly such letting out must be for such period as may be agreed in writing.
These and these alone are the conditions which are required to be fulfilled.
[772G 773B] 1.3 Section 21 only gives sanction if the landlord makes a statement to the satisfaction of the Court and the tenant accepts that the landlord does not require the premises for a limited period.
This statement of the landlord must be bona fide.
The purpose must be residence.
There must not be any fraud or collusion.
There is a presumption of regulari ty.
But it is open in particular facts and circumstances of the case to prove to the satisfaction of the executing court that there was collusion or conspiracy between the landlord and the tenant and the landlord did not mean what he said or that it was a fraud or that the tenant agreed because he was wholly unequal to the landlord.
[776F H] 1.4 In the instant case there was no permission previ ously.
This was the first letting.
There was no evidence that when the landlord stated that he did not require the premises in question for a particular period, he did not mean what he said or that he made a false statement.
There was no evidence at any stage that the tenant did not under stand what the landlord was stating or that he did not accept what the landlord stated.
There was no evidence that either the tenant was in collusion or perpetrating any fraud with the landlord or the tenant was unequal to the landlord in bargaining powers.
There was thus no evidence to show that the Controller did not apply his mind.
[779F, 776H 777B] S.B. Noronah vs Prem Kumari Khanna, ; ; Nagindas Ramdass vs Dalpatram Ichharam, ; ; V.S. Rahi and another vs Smt.
Ram Chambeli; , ; J.R. Vohra vs India Export House Pvt. Ltd. and another; , and Smt.
Dhanwanti vs D.D. Gupta, [1986] 3 SCC 1, referred to 2.
It is not necessary to state under section 21 the reasons why the 767 landlord did not require the premises in question for.
any particular period.
The landlord or the tenant may be able to show that cogent reasons did exist or were within the knowl edge of the parties as to why the landlord did not require the whole or a part of his premises for a specified period.
[777BC, 782B] 3.
There is no presumption that in all cases the tenants are the weaker sections.
The presumption is, on the con trary, in favour of sanction.
It is he who challenges the statement and the admission of the landlord or the tenant who has to establish facts.
In the instant case the onus was on the tenant to show that the sanction under section 21 was a nullity.
He did not make any attempt to dislodge the pre sumption in favour of the permission.
[777C, 779F] 4.1 An agreement in writing submitted along with the application under section 21 of the Act is really a proposed agreement.
It comes into effect only after the grant of permission.
It does not require registration.
[782CD] S.B. Noronah vs Prem Kumari Khanna, , referred to.
Vijay Kumar Bajaj vs Inder Sain Minocha, [1982] 2 Rent Control Reporter 392, approved.
4.2 It has been consistently held by the Delhi High Court that section 21 is a code by itself, that the order of permission is itself an authority and that no lease was necessary.
This view has been acted upon for long and trans actions have been completed in the Union Territory on the basis of permission and it was never doubted that there was any requirement of any lease or any agreement subsequent to the order and the same required registration.
The view taken by the High Court over a number of years should normally be adhered to and not to be disturbed.
A different view would not only introduce an element of uncertainty and confusion but it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions.
[780A C] Raj Narain Pandey and others vs Sant Prasad Tewari & others; , and Kasturi Lal vs Shiv Charan Das Mathur, [1976] 8 Rent Control Reporter 703, referred to.


judgement:
Special Leave Petition (Civil) No. 3865 of 1987.
From the Judgment and Order dated 2.1.87 of the Allaha bad High Court in Writ Petition No. 17082/86.
S.N. Kacker and R.B. Mehrotra for the Petitioner.
R.K. Jain for the Respondent.
The Order of the Court was delivered by VENKATARAMIAH, J. The Uttar Pradesh Public Service Commission (hereinafter referred to as 'the Commission ') is the petitioner in this petition.
It has questioned the correctness of the order passed by the High Court of Allaha bad in Writ Petition No. 17082 of 1986 directing it to comply with the order dated August 30, 1986 passed by the State Government on an appeal filed by Respondent No. 1 against the order passed by the Commission in a disciplinary proceeding held against him.
Respondent No. 1 was working as a Section Officer in the office of the Commission.
On July 18, 1981 he was placed under suspension on certain charges and a departmental enquiry was initiated against him.
In the said enquiry he was found guilty and he was reverted to the rank of an Upper Division Assistant by the order dated April 24, 1982 and by another order passed on the same day he was dismissed from service.
Against these orders Respondent No. 1 preferred an appeal before the State Government.
The State Government found that Respondent No. 1 had not been given opportunity to cross examine the witnesses produced at the disciplinary enquiry, that he had not been given a reasonable opportunity to produce evidence from his side and that, therefore, the punishment imposed on him was violative of Article 311(2) of the Constitution.
Accordingly, the order of dismissal passed against him in the disciplinary enquiry was set aside and the Commission was directed to hold a fresh enquiry in accordance with law.
The order of the State Government further directed the Commission to reinstate Respondent No. 1 as an Upper Division Assistant pending final decision in the disciplinary enquiry.
It was also ordered that the salary and allowances due to Respondent No. 1 from the date 836 of his dismissal till the date of reinstatement should be paid to him.
The above order was passed on August 30, 1986.
Respondent No. 1 applied to the Commission on September 3, 1986 to permit him to rejoin the service as ordered by the State Government.
When the Commission declined to comply with the order of the State Government, Respondent No. 1 instituted the writ petition, referred to above, in the High Court of Allahabad for the issue of a direction to the Commission to comply with the order of the State Government.
After heating the learned counsel for Respondent No. 1 and the Commission, the High Court allowed the writ petition and issued the directions as stated above.
Aggrieved by the decision of the High Court, the Commission has filed this petition.
Two contentions are urged before us on behalf of the Commission (i) since the Commission, which is a constitu tional authority, is not subordinate to the State Govern ment, the State Government could not have heard the appeal filed against the order passed by the Commission in a disci plinary proceeding.
and (ii) in any event the appeal should have been disposed of by the Governor himself and not by the Governor in accordance with the advice of the State Govern ment.
The conditions of service of the members of the Staff of the Commission are regulated by the U.P. Public Service Commission (Conditions of Service) Regulations, 1937 made under section 265(2) of the Government of India Act, 1935 (corresponding to Article 3 18 of the Constitution) as they have been continued under the provisions of the Constitu tion.
Regulation 20 of the said Regulations, as amended by the Uttar Pradesh Public Service Commission (Conditions of Service) (Amendment) Regulations, 1978 made by the Governor under Article 3 18 of the Constitution reads as follows: "20.
Appointments to the gazetted ministerial posts other than those of the Under Secretary and the Assistant Secretary shall be made by the Commission.
(Appeals against the order of the Commission shall be to the Governor).
" Regulation 28 of the U.P. Public Service Commission Staff Regulations, 1942 lays down as follows: "28.
Regulation of pay, leave allowance, pension and other conditions of service Except as provided in these 837 regulations or in any special declaration or order made by the Governor, all matters relat ing to the pay, allowances, pension, gratuity, leave, retirement and other conditions of service of the persons appointed to the staff shall be regulated by the rules, declarations and orders applicable generally from time to time to servants of the State of similar classes under the control of the Uttar Pradesh Government insofar as they are not inconsist ent with any provisions expressly made in these regulations or in the Uttar Pradesh Public Service Commission (Conditions of Service) Regulations.
" Rule 69 of the Civil Service (Classification, Control and Appeal) Rules, 1930 is to the effect that the State Government may, of its own motion or otherwise, call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules, and inter alia, confirm, modify or reverse the order passed by such authority, or direct that a further enquiry be held in the case.
Rule 69 A sets out the proce dure to be followed in filing a petition under rule 69.
Rule 69 and rule 69 A are substantially applicable to the members of the staff of the Commission by virtue of Regulation 28 of the Uttar Pradesh Public Service Staff Regulations, 1942, extracted above, even though the Commission may not be an authority subordinate to the State Government because while applying rule 69 to the staff of the Commission the rule should be read with the necessary modification by substitut ing in the place of the words 'an authority subordinate to it ' the words 'the Uttar Pradesh Public Service Commission '.
In any event by virtue of the amendment made to rule 20 in 1978 appeals against the orders of the Commission passed in respect of the gazetted ministerial officers other than the Under Secretary and the Assistant Secretary lie to the Governor.
Respondent No. 1 being a gazetted officer holding the post of a Section Officer is entitled to prefer an appeal under regulation 20 of the Uttar Pradesh Public Service Commission (Conditions of Service) Regulations, 1937 to the Governor.
On the facts and in the circumstances of the case we feel the contention of the Commission that an order passed by it in a disciplinary proceeding cannot be subject to an appeal, is untenable by virtue of regulation 20 of the Uttar Pradesh Public Service Commission (Condi tions of Service) Regulations, 1937 and regulation 28 of the Uttar Pradesh Public Service Commission Staff Regulations, 1942.
It may be that as held by this Court in Hargovind Pant vs Dr. Raghukul Tilak & Ors., ; the Com mission may be a constitutional authority not subordinate to any other authority.
But the orders 838 passed by the Commission in disciplinary proceedings held against the members of its staff are subject to the appeal to the State Government under rule 69 of the Civil Service (Classification, Control and Appeal) Rules read with regula tion 20 of the Uttar Pradesh Public Service Commission (Conditions of Service) Regulations, 1937.
There is no ground for thinking that the independence of the Commission would be affected by the State Government exercising the appellate power in disciplinary matters as provided by regulation 20.
We, therefore, reject the first contention.
We shall now deal with the second contention.
It is no doubt true that regulation 20 provides that appeals against the orders of the Commission shall be made to the Governor.
But while exercising his powers under that regulation the Governor has to act on the advice given by the State Govern ment by virtue of Article 163(1) of the Constitution which reads thus: "163(1).
There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
" The function of heating an appeal against an order passed by the Commission in a disciplinary proceeding held against any member of its staff is not one of those func tions which the Governor is required to exercise in its discretion under any of the provisions of the Constitution.
The Governor has, therefore, to act on the advise of the State Government.
This position has been settled by the decision of this Court in Shamsher Singh & Ant.
vs State of Punjab, 14.
Ray, C.J. speaking for him self, Palekar, Mathew, Chandrachud and Alagiriswami, JJ.
has observed at page 836 thus: "For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vest in the executive whether those functions are executive or legislative in character.
Neither the President nor the Governor is to exercise the executive functions personally.
" The function of deciding an appeal against an order of punish 839 ment imposed in a disciplinary proceeding is an executive function.
Hence, by acting in accordance with the advice tendered to him by the State Government, the Governor has not acted contrary to the provisions of the regulations or of the Constitution.
The appellate power is exercised in the instant case in accordance with Article 166 of the Constitu tion.
We do not, therefore, find any merit in the second contention too.
The petition is, therefore, dismissed.
H.L.C. Petition dis missed.

dataset_name: IN-Abs

summary:
In an appeal preferred by respondent No. 1 against orders reverting him from the post of Section Officer to a lower post and dismissing him from service, the State Gov ernment found that he had not been afforded a reasonable opportunity to defend himself at the inquiry, and set aside the order of dismissal directing the State Public Service Commission to reinstate him in the lower post and hold a fresh inquiry.
The Commission having declined to comply with the order of the State Government, respondent No. 1 filed a writ petition, and the High Court directed the Commission to comply with the said order.
In this petition for special leave to appeal, the Com mission contended (1) that since it was a Constitutional Authority being not subordinate to the State Government, the latter could not have heard the appeal filed against its order passed in a disciplinary proceeding; and (2) that in any event, the appeal should have been disposed of by the Governor himself and not by the Governor in accordance with the advice of the State Government.
Dismissing the petition, HELD: The Commission may be a constitutional authority not subordinate to any other authority.
But the orders passed by the Commission in disciplinary proceedings held against the members of its staff are subject to the appeal to the State Government under r. 69 of the Civil Service (Classification, Control and Appeal) Rules, 1930, read with Regulation 20 of the Uttar Pradesh Public Service Commission (Conditions of Service) Regulations, 1937 as amended in 1978.
There is 834 no ground for thinking that the independence ,of the Commis sion would be affected by the State Government exercising the appellate power in disciplinary matters as provided by Regulation 20.
[837H; 838A B] Hargovind Pant vs Dr. Raghukul Tilak & Ors., ; , referred to.
Rule 69 of the Civil Service (Classification, Control and Appeal) Rules, 1930 is to the effect that the .State Government may, of its own motion or otherwise, call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules, and inter alia, confirm, modify or reverse the order passed by such authority, or direct that a further enquiry be held in the case.
Rule 69 A sets out the proce dure to be followed in filing a petition under rule 69.
Rules 69 and 69 A are substantially applicable to the mem bers of the staff of the Commission by virtue of Regulation 28 of the Uttar Pradesh Public Service Staff Regulations, 1942, even though the Commission may not be an authority subordinate to the State Government because while applying r. 69 to the staff of the Commission the rule should be read with the necessary modification by substituting in the place of the words 'an authority subordinate to it ' the words 'the Uttar Pradesh Public Service Commission '.
In any event by virtue of the amendment made to Regulation 20 of the Uttar Pradesh Public Service Commission (Conditions of Service) Regulations, 1937 in 1978 appeals against the orders of the Commission passed in respect of the gazetted ministerial officers other than the Under Secretary and the Assistant Secretary lie to the Governor.
Respondent No.1 being a gazetted officer holding the post of a Section Officer was entitled to prefer an appeal under Regulation 20 to the Governor.
[837C G] 2.
It is no doubt true that Regulation 20 of the Uttar Pradesh Public Service Commission (Conditions of Service) Regulations, 1937 provides that appeals against the orders of the Commission shall be made to the Governor.
But while exercising his powers under that Regulation the Governor has to act on the advice given by the State Government by virtue of article 163(1) of the Constitution.
The function of hearing an appeal against an order passed by the Commission in a disciplinary proceeding held against any member of its staff is an executive function and not one of those functions which the Governor is required to exercise in its discretion under any of the provisions of the Constitution.
The Gover nor has, therefore, to act on the advice of the State Gov ernment.
[838C F] 835 Shamsher Sing vs State of Punjab, ; , referred to.


judgement:
Writ Petition (Crl.) No. 408 of 1987.
(Under Article 32 of the Constitution of India).
842 R.K. Garg and Ms. Rani Jethmalani (Not present) for the Petitioner.
Anil Dev Singh, Hemant Sharma and Ms. A. Subhashini for the Respondent.
The Judgment of the Court Was delivered by RANGANATH MISRA, J.
Petitioner 's husband, Shital Kumar, was detained by an order passed by the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, dated February 28, 1986, made in exercise of powers vested under section 3(1) of the (hereinafter referred to as 'the COFEPOSA ').
The peti tioner made an application to this Court under Article 32 in Writ Petition (Crl) No. 292 of 1986 challenging that order of detention.
In the earlier writ application, on 15th of May, 1986, the learned Vacation Judge of this Court made an order for the release of the detenu on parole on the follow ing terms: "The detenu is released on parole until further orders on the condition that he will report to the Directorate of Revenue, New Delhi, every day and the Directorate will be at liberty to direct him to explain his con duct during this time . .
In the mean time the respondents will be at liberty to make an application for the revocation of the parole if any misconduct or any other activity comes to their notice which requires the revocation of the parole.
" On 3rd March, 1987, the writ petition was listed for hearing before the Bench consisting of both of us.
In the writ petition, several contentions had been raised but Mr. Jeth malani, learned counsel for the petitioner confined his submissions to only one aspect, namely, that the period of parole, that is, from 15th May, 1986, till February 22, 1987, should not be added to the period of detention speci fied in the impugned order under section 3(1) of the COFEPO SA and the period of one year from the date of detention having expired on February 20, 1987, the impugned order has lapsed and the detenu became entitled to be freed from the impugned order of detention.
That point was examined at length and by the judgment of this Court delivered on 22nd April, 1987 in Poonam Lata vs M.L. Wadhawan, AIR 1987 SC 1383 the writ petition was dismissed by saying: 843 "In the premises, it must according ly be held that the period of parole has to be excluded in recokning the period of detention under sub section (1) of section 3 of the Act.
" In paragraph 14 of the judgment, it was fur ther observed: "For these reasons, the only conten tion advanced by Shri Jethmalani in course of the hearing namely, that the period of parole from May 15, 1986 to February 28, 1987 could not be added to the maximum period of deten tion of the detenu Shital Kumar for one year as specified in the impugned order of deten tion passed under sub section (1) of section 3 of the , must fail.
The writ petition is accordingly dismissed.
There shall be no order as to costs.
We direct that the petitioner shall surrender to custody to undergo remaining period of detention.
We give the detenu 10 days ' time to comply with this direction failing which a non bailable warrant for his arrest shall issue." This writ petition was thereafter filed on 27th of April, 1987.
In paragraph 2 of the petition, with reference to the earlier writ petition, it was averted: "Arguments were advanced by the counsel for the petitioner only to the one point and it was clearly stated by the senior counsel, Shri Ram Jethmalani, who appeared in the hearing that he had a strong, almost unanswerable case on merits but he was very keen to have the question of exclusion of the parole period decided since it arises squarely in this case.
It would have been a breach of professional duty on the part of the counsel not to raise those points against the validity of the detention order on which the court had prima facie issued notice.
Shri Ram Jethmala ni, senior counsel, did not give up the other points in the said writ petition.
However, the Hon 'ble Court has dismissed the said writ petition on 22.4. 1987.
Though the Hon 'ble Court has rightly observed that the only point which was argued was on the question of the period of parole it Was submitted that had the Hon 'ble Court indicated that the petitioner 's submission on this score did not find favour of the Hon 'ble Court, counsel would have proceeded to argue the case.
" 844 We are surprised that in the writ petition which has been settled by Mr. Jethmalani, such allegations have been made.
It is common experience that when those several contentions are advanced in the pleadings, counsel chooses to press one or some out of the several contentions at the time of the heating.
The judgment indicated that only one point was argued.
The averments in paragraph 2 of the present writ petition accepts that position.
It, therefore, follows that Mr. Jethmalani made submissions confined to one contention a contention which had not been raised in the earlier writ petition but arose out of the proceedings in court therein relating to the effect of release on parole.
The fact that Mr. Jethmalani raised only one submission having been accepted, it is a matter of no consequence as to whether giving up the other pleas raised in the writ peti tion amounted to breach of professional duty on the part of Mr. Jethmalani.
The fact remains that only one contention had been raised.
There is absolutely no basis for the alle gation in paragraph 2 of the writ petition that if the Court had indicated to Mr. Jethmalani in course of arguments that the submission on this limited point did not find favour with the Court he would have proceeded to argue the other points.
That certainly was an unusual expectation.
It was open to Mr. Jethmalani to make full submission on all as pects arising in the writ petition.
That having not been done, it was improper on the part of Mr. Jethmalani to raise such allegations in paragraph 2, as have been extracted above.
We are surprised that Mr. Jethmalani who was aware of the proceedings in the Court and did not dispute the fact that he had confined his arguments to one point settled the writ petition as senior counsel with the allegations quoted above in paragraph 2 of the writ petition.
This writ peti tion was fixed for final hearing on 31st of July, 1987, as suggested by Mr. Jethmalani, but at the hearing he did not appear and Mr. Garg, senior counsel, appeared for the peti tioner.
When we pointed out to Mr. Garg about the incorrect ness of the averments and that the allegations contained in paragraph 2 are without foundation against the Bench hearing the matter, he pleaded ignorance and stated that it was for Mr. Jethmalani to answer.
We do not want to say anything more but we think it appropriate to point out that Mr. Jethmalani on the earlier occasion had argued the writ petition in his own way and had raised only one contention which was dealt with by the judgment in the writ petition.
Mr. Garg, learned counsel for the petitioner has raised two points before us for consideration: (1) the detenu had been prejudiced in making an effective representation to the Board against his detention in the absence of the summons issued under section 108 of the Customs Act to him.
In spite of demand, that document had not been 845 supplied, and(2) the petitioner was already in custody at the time the order of detention was served and since the detenu was already in custody, the order of detention is liable to be quashed.
In Ground No. 4 of the writ petition, it has been alleged: "That the most material document under the circumstances turns out to be the summons which was served on the detenu being the summons referred to in the letter dated 21.3.
1986, Annexure E above mentioned.
The detenu by his advocate 's letter of 12th April, 1986, has called upon the respondent No. 1 to supply him with a copy of the summons because he intends to use the said summons while presenting his case to the advisory board.
True copy is annexed hereto and marked as Annexure F. The request contained in the said letter has not been complied with.
" In paragraph 4(iv) of the counter affidavit, it has been stated: "In reply to para 4, it is submitted that the summons as required by the detenu 's advocate in the letter dated 12.4.
1986 were not supplied as there were no written summons served on the petitioner.
I say that after the completion of the search of the residential premises of the petitioner on 27.2.
1986 the petitioner was taken by DRI officers.
As the petitioner.
happened to be in the presence of the empowered officers of DRI, he was accord ingly told that his presence was required for giving evidence and the petitioner accompanied the DRI officers on his free will.
No written summons were, therefore, served on the peti t i o n e r . . . . . . . . " Section 108(1) of the Customs Act provides: "Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods." No specific provision has been made for summons in the Customs ACt and, therefore, the provisions of section 61 of the Code of Criminal Procedure will be applicable.
That section provides: 846 "Every summons issued by a Court under this Code shall be in writing, in dupli cate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court.
" On 12th of April, 1986, counsel for the petitioner wrote a letter to the detaining authority wherein it was stated: " . .
I have to further request you to supply me with a copy of the summons said to have been served on client on or about 27th of February, 1986.
The DRI has not yet supplied to my client the documents as stated in your above mentioned rejection letter.
" In view of the positive case of the respondents that there was no summons and the detenu had been orally directed to attend the office by the authorities concerned, we think that it would not be proper to hold that summons under section 108 of the Customs Act was in existence.
Once the summons is not in existence, there is no foundation in the submission that there is prejudice to the detenu on account of the authority 's withholding the summons.
The first con tention fails.
Admittedly the petitioner was taken into custody around 2.00 p.m. on 27.2.1986, in course of investigation of the case.
He was produced before the Judicial Magistrate and an order was made requiring him to be produced next day in the court.
Paragraphs 7 and 8 of the grounds served on the petitioner run thus: "7 I have carefully gone through the facts and circumstances of the case, relevant documents and also the statements of various persons in the subject case.
I have also seen and gone through the various applications moved in the court of the ACMM, New Delhi and orders passed thereon." "8 In view of the facts mentioned hereinabove, I have no hesitation in arriving at the conclusion that you have been dealing in smuggled goods otherwise than engaging in transporting or concealing or keeping smuggled goods.
Even though the investigations in the subject case is in progress, prosecution and adjudication proceedings under the , are likely to be initiated 847 against you, I am satisfied that you should be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activi ties Act, 1974, with a view to preventing you from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods.
" In paragraph 7 of the counter affidavit, it has been stated: " . .
The petitioner, as already stated, was summoned after the search of his residental premises on 27.2.
1987 and his statement recorded by the competent officer of DRI.
The petitioner was arrested at 2.00 p.m. on 27.2.
1986 and was produced at the resi dence of ACMM, New Delhi on 27.2.
1986 at about 8.00 p.m . . . ".
In paragraph 9 of the said affidavit, it is further alleged that: "Shri Shital Kumar was arrested at 1400 hrs.
of 27.2.
1986 and produced before the ACMM around 2000 hrs.
at his residence the same day.
Shri Shital Kumar was then remanded to judicial custody till 28.2.1986 by the said magistrate.
" The order of detention is dated 28.2.
It was addressed to the detenu at his residential address at Delhi and not to the jail authorities for service on the detenu.
From the facts and circumstances emerging in this case it is clear that the detenu had been called by the Customs Authorities for investigation.
A statement had been made by him under section 108 of the and thereafter he was taken into custody and produced before the Additional Chief Metropolitan Magistrate who ramanded him to custody and directed him to be produced on the following day in the court.
By the time the order of detention came to be made the petitioner was in jail for at the most one day.
Charge sheet had not been submitted against him in the criminal case and he had been remanded to the judicial custody on the 27th of February, 1986 with the direction to be produced before the Metropolitan Magistrate on the 28th of February, 1986.
Now it has to be seen if on these facts the order of detention would become vitiated.
Strong reliance was placed by Mr. Garg on a 848 two Judge judgment of this Court in Binod Singh vs District Magistrate, Dhanbad, ; Paragraph 3 of the judgment indicates the facts as follows: "The petitioner/appellant was in detention when the petitioner/appellant was served with the orders of detention.
There were criminal cases against the petitioner.
There was a murder case in respect of Crime No. 33 1 of 1985.
In the said case, investiga tion was in progress and the defence of the petitioner in the murder case was that he was falsely implicated and was not at all con cerned with the murder.
When the order was passed, the petitioner had not surrendered but when the order was served, the petitioner had already surrendered in respect of the criminal charge against him.
At the relevant time, the petitioner was under trial in the said crimi nal case.
" On such facts, it was the contention of the petitioner therein that the order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was necessary for put ting him back in jail.
This Court therein pointed out: "The principles applicable in these types of preventive detention cases have been discussed in the decisions of Suraj Pal Sahu vs State of Maharashtra, ; and Raj Kumar Singh vs State of Bihar, ; Judged on the basis of the said principles, there is no ground for interfer ence with the order of detention as passed.
It, however, appears that after the order of detention was passed and before the actual service of the order of detention, the peti tioner was taken into custody.
From the affi davit of the District Magistrate, it does not appear that either the prospect of immediate release of the detenu or other factors which can justify the detention of a person in detention were properly considered in the light of the principles noted in the aforesaid decisions and especially in the decisions in Rameshwar Shaw vs District Magistrate, Burdwan and Ramesh Yadav vs District Magistrate, Etah. , , . . . .
A Constitution Bench of this Court in Ramesh war Shaw vs District Magistrate, Burdwan, ; held as follows: 849 "As an abstract proposition of law, there may not be any doubt that section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail.
" The self same question was examined in Kartic Chandra Guha vs State of West Bengal, where a three Judge Bench of this Court observed: "It is true that he had been held in custody in connection with the offences under the Arms Act which are nonbailable offences, but even so, it was open to the trying magis trate to release the petitioner on bail.
The District Magistrate, on information received by him, thought that the petitioner was likely to be released on bail in which case having regard to his past activities, it was open to the District Magistrate to come to the reason able conclusion that having regard to the desperate nature of the activities of the petitioner, his enlargement on bail would be no deterrent to his desperate activity.
Hence the District Magistrate was entitled to pass the order of detention if that was necessary to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order.
" That very question again came before a two Judge bench in Dr. Ramakrishna Rawat vs Dis trict Magistrate, Jabalpur, [ where it was observed: "In the case in hand, as already noticed, the petitioner was in jail custody in proceedings under section 151 Cr.
That custody was obviously of a short duration.
The mere service of the detention order on the petitioner in jail would not therefore invali date the order.
On the basis of the antecedent activities of the petitioner in the proximate past the detaining authority could reasonably reach its subjective satisfaction about his tendency or inclination to act in a manner prejudicial to the maintenance of public order after his release on the termination of the security proceedings under the Code." 850 In Vijay Kumar vs State of Jammu & Kashmir, ; a two Judge Bench of this Court pointed out: "If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State.
May be, in a given case there yet may be the need to order preventive detention of a person already in jail.
But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive deten tion order needs to be made.
" That vexed question came before a two Judge bench of this Court in the case of Merugu Satyanarayana vs State of Andhra Pradesh, ; wherein it was observed: "Now, if the man is already detained can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made?" The Court then referred to the Constitution Bench decision in Rameshwar Shaw 's case (supra) and left it as a matter to be decided in every individual case on its own facts.
The Court also indicated that it was not a matter of jurisdition but had to be decided on the facts of each case.
We may now refer to a recent judgment of a three Judge Bench in the case of Suraj Pal Sahu vs State of Maharashtra, ; Mukharji, J. who delivered the judgment in Binod Singh 's case (supra) on which Mr. Garg has relied has also delivered the judgment in this case.
Therein it was said: "In Ramesh Yadav vs District Magis trate, Etah, it was held that merely on the ground that an accused in deten tion as an undertrial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed.
If the apprehension of the detaining authority was true, court observed, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised.
We respect fully agree with this conclusion.
But this 851 principle will have to be judged and applied in the facts and circumstances of each case.
Where a person accused of certain offences whereunder he is undergoing trial or has been acquitted, the appeal is pending and in re spect of which he may be granted bail may not in all circumstances entitle an authority to direct preventive detention and the principle enunciated by the aforesaid decision must apply but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous mainte nance of essential supplies and thereby jeo pardise the security of the State, then sub ject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive deten tion . . . . " It is thus clear that the fact that the detenu is al ready in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention.
What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was sub jectively satisfied that his order of detention became necessary.
In the facts of the present case, there is suffi cient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary.
We do not think there is any force in this contention of Mr. Garg.
Since both the contention canvassed are rejected, the writ petition is dismissed.
P.S.S. Petition dismissed.

summary:
In criminal writ petition No. 292 of 1986, preferred by detenu 's wife on various grounds, the Vacation Judge ordered his release on parole till further orders.
However, when the petition came up for hearing before the Division Bench on 3rd March, 1987 the counsel confined his submissions to one aspect only that arose out of the proceedings in Court i.e., that the period of parole should not be added to the period of detention.
That plea was rejected and the petition dis missed on 22nd April, 1987.
In the present writ petition filed thereafter on April 27, 1987 it was averred that the counsel did not give up the other points in the earlier writ petition, and had the Court indicated that the petitioner 's submission would not find favour with it he would have proceeded to argue the case.
Further, two more points were raised: (1) that the detenu had been prejudiced in making an effective representation to the Board against his detention in the absence of the sum mons issued under section 108 of the Customs Act to him, which document had not been supplied in spite of demand, and (2) that since the detenu was already in custody at the time the order of detention was served the said order was liable to be quashed.
Dismissing the writ petition, HELD: 1.
It is common experience that when several contentions are advanced in the pleadings, counsel chooses to press one or some out of the several contentions at the time of the hearing.
In the instant case, only one point was argued at the previous hearing.
It was open to the counsel to make full submissions on all aspects arising in the writ petition.
That having not been done it was improper on his part to raise such allegations.
[844A, D] 841 2.1 The detenu had been called by the Customs Authori ties for investigation on February 27, 1986.
A statement had been made by him under section 108 of the Customs Act and there after he was taken into custody and produced before the Additional Chief Metropolitan Magistrate, who remanded him to custody and directed him to be produced on the following day in the court.
By the time the order of detention under section 3(1) of the COFEPOSA Act for one year came to be made on February 28, 1986 he was in jail at the most for one day.
Chargesheet had not been submitted against him in the crimi nal case.
[847FG] 2.2 Since there was no summons and the detenu had been orally directed to attend the office by the authorities concerned, it could not be held that summons under section 108 of the Customs Act was in existence.
Once the summons was out in existence it could not be said that there was prejudice to the detenu on account of the authority 's withholding the summons.
[846D] 3.1 The fact that the detenu was already in detention did not take away the jurisdiction of the detaining authori ty in making an order of preventive detention.
What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detain ing authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary.
[851D] 3.2 In the instant case, there was sufficient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made yet he was satisfied that his preventive detention was necessary.
The order of detention was, therefore, not viti ated.
[851E] Binod Singh vs District Magistrate, Dhanbad, ; ; Rameshwar Shaw vs District Magistrate Burdwan, ; ; Kartic Chandra Guha vs State of West Bengal, ; Dr. Ramakrishna Rawat vs District Magistrate, Jabalpur, Vijay Kumar vs State of Jammu and Kashmir, ; ; Merugu Satyanarayana vs State of Andhra Pradesh, ; and Suraj Pal Sahu vs State of Maharashtra, ; , referred to.


judgement:
ivil Appeal No. 1544 of 1987.
From the Judgment and Order dated 1.9.
1986 of the Calcutta High Court in suit No. 755 of 1985.
794 S.K. Kapoor, Ranjan Dev, Surendra Dube and Mrs. Indra Sawhney for the Appellant.
L.N. Sinha and P.P. Singh for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The question involved in this case is whether the High Court of Calcutta was right in returning the plaint presented by the appellant for presentation to the proper Court under Order 7 Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code ').
The appellant is the owner of Flat No. 2 (now known as 'F '), 7th Floor, Gem Building at 5/B, Russel Street, Calcut ta.
The said premises had been leased out in favour of the respondent on a monthly rent of Rs, 1,400.
The respondent committed default in the payment of rent from the month of June, 1984.
The appellant, therefore, served a notice on the respondent under section 106 of the and section 13(6) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as 'the Act ') determining the tenancy with the expiry of the month of January, 1985 and called upon him to deliver possession of the premises.
Upon failure of the respondent to hand over the vacant possession of the premises on the expiry of January, 1985 the appellant filed a suit in Suit No. 755 of 1985 on the Original Side of the High Court of Calcutta for recovery of possession of the premises and for recovery of arrears of rent amounting to Rs. 11,200 and of Rs.78,000 by way of mesne profits/damages, claiming mesne profits/damages at the rate of Rs.7,800 per month from 1st February, 1985 until 30th November, 1985.
The appellant valued the suit for purposes of court fee and jurisdiction at Rs. 1,06,000 which was arrived at as follows: (i) For purposes of possession Rs.
16,800/ ( 12 times the monthly rent of Rs. 1400/ ) (ii) For recovery of arrears of Rs.11,200/ rent upto 31.1.
1985 (iii) For recovery of mesne Rs. 78,000/ profits or damages at Rs.7,800/ per month from 1.2.
1985 to 30.11.
1985 Total: Rs.
1,06,000/ 795 Any suit, the value of which was above Rs. 1,00,000, had to be filed in the High Court on its Original Side.
Accord ingly, the plaint was presented in the High Court after paying the necessary court fee on the basis of the above valuation.
After the respondent was served with the summons in the suit, he made an application before the High Court for taking the plaint off its file and for returning it to the appellant for filing the same in the proper court.
The respondent stated in the application that on a plain reading of the definition of the expression 'tenant in the Act, the respondent continued to be the tenant even after the termi nation of his contractual tenancy and did not become an unauthorised occupant of the accommodation and he was, therefore, liable to pay rent at the rate of Rs, 1400 per month till the date of the suit.
He further stated that calculated on the above basis, the respondent would be liable to pay Rs. 14,000 only by way of arrears of rent for the period between 1st February, 1985 and 30th November, 1985 instead of Rs.78,000 claimed by the appellant by way of mesne profits/ damages for the said period.
The respondent contended that the valuation of the suit for purposes of jurisdiction would be Rs.42,000 only and that the value of the suit being less than Rs. 1,00,000 it had to be filed in the City Civil Court of Calcutta.
The respondent, therefore, prayed that the plaint should be returned for presentation to the proper court by virtue of section 15 of the Code which provided that every suit should be instituted in the court of the lowest grade competent to try it.
The learned Judge on hearing the above application accepted the plea of the respondent that under the provisions of the Act the expression 'tenant ' included a person continuing in posses sion of the accommodation even after the termination of his contractual tenancy and on such termination the possession of a tenant did not become wrongful.
The learned Judge, therefore, held that the appellant was not entitled to claim mesne profits/damages at the rate of Rs.7,800 per month from 1st February, 1985 to 30th November, 1985 aggregating to Rs.78,000 but was entitled to recover Rs. 14,000 only at the rate of Rs. 1,400 per month in respect of that period.
The learned Judge found that the suit should have been valued at Rs.42,000 and not at Rs. 1,06,000 and that the High Court had no jurisdiction to entertain the said suit.
Accordingly, the learned Judge directed that the plaint should be re turned to the appellant for presentation to the proper court.
Aggrieved by the decision of the learned Judge, the appellant has filed the above appeal by special leave before this Court under Article 136 of the Constitution.
Under section 15 of the Code every plaint should be instituted in the court of the lowest grade competent to try it and if the value of the 796 suit was Rs.42,000 only it had to be filed in the City Civil Court of Calcutta and not on the Original Side of the High Court.
The principles which regulate the pecuniary jurisdic tion of civil courts are wellsettled.
Ordinarily, the valua tion of a suit depends upon the reliefs claimed therein and the plaintiff 's valuation in his plaint determines the Court in which it can be presented.
It is also true that the plaintiff cannot invoke the jurisdiction of a court by either grossly over valuing or grossly under valuing a suit.
The Court always has the jurisdiction to prevent the abuse of the process of law.
Under rule 10 of Order 7 of the Code the plaint can be returned at any stage of the suit for presentation to the court in which the suit should have been instituted.
The question for consideration in this case is whether in the present case the plaint has been grossly over valued with the object of bringing it within the juris diction of the High Court.
When the suit is filed for the recovery of money, the amount claimed has to be included in determining the value of the suit.
In the instant case the appellant has claimed a decree for Rs.78,000 (at the rate of Rs.7,800 per month) for the period between 1st February, 1985 and 30th November, 1985 on the footing that the re spondent 's possession was unauthorised or illegal and he was liable to pay mesne profits or damages.
The question whether the appellant would be entitled to a decree for mesne prof its/ damages at the rate of Rs.7,800 per month or at any other rate after the termination of the tenancy is a matter which has to be decided in the suit.
If ultimately it is found that the appellant is not entitled to get mesne prof its or damages for the period subsequent to 1st February, 1985 and that she is only entitled to receive Rs. 1,400 per month, the suit in respect of the claim over and above Rs. 1,400 per month, will have to be dismissed.
But the question whether she was entitled to claim mesne profits or damages in respect of the period subsequent to 1st February, 1985 could not have been disposed of at a preliminary stage even before the trial had commenced.
That question has to be decided at the conclusion of the trial along with other issues arising in the suit.
Having regard to some of the decisions on which reliance is placed by the appellant in the course of the appeal we are of the view that the matter is not free from doubt.
The claim for mesne profits/ damages is neither palpably absurd nor imaginary.
It needs judicial consideration.
The acceptance of the view put forward by the respondent may lead to encouraging a tenant who has forfeit ed his right to the tenancy to carry on a dilatory litiga tion without compensating the landlord suitably for the loss suffered by him on account of the unreasonable deprivation of the possession of his premises over a long period until he is able to get possession of the premises through the Court.
We cannot, therefore, state at this stage that the claim for 797 mesne profits/damages had been made without good faith and with the sole object of instituting the said suit before the High Court of Calcutta even though it had no jurisdiction to try it.
We do not agree with the submission made on behalf of the respondent that the appellant had "dishonestly and intentionally inflated the value of the suit in order to invite the jurisdiction of a particular court which has no jurisdiction otherwise.
" If mesne profits/damages are found to be payable then the claim made at the rate of Rs.7,800 per month for a premises of the nature in question which is situated in Calcutta does not appear to be fanciful having regard to the prevailing situation.
We however express no opinion on the actual amount that may be awarded as mesne profits/damages in the event of the liability to pay it being established.
We are of the view that on the facts and in the circum stances of the case the High Court was in error in prejudg ing the issue relating to the right of the appellant to claim mesne profits/damages and in directing that the plaint should be returned for presentation to the proper court.
We, therefore, set aside the order passed by the High Court and direct the High Court to proceed with the hearing of the suit.
We also direct that the observations made by the learned Judge in the course of the order against which this appeal is filed regarding the right of the appellant to claim the mesne profits/damages at the rate of Rs.7,800 per month shall not be binding on the parties and that the said question shall be decided afresh by the High Court in the course of the trial.
We, however, express no opinion on the correctness or otherwise of the observations made by the learned Judge on the above question.
The appeal is accordingly allowed.
H.L.C. Appeal allowed.

summary:
Upon the respondent tenant committing default in payment of rent from June, 1984, the appellant landlady, after serving a notice determining the tenancy with effect from 31st January, 1985 and calling upon him to deliver posses sion of the premises in question, filed a suit in the High Court for recovery of possession, arrears of rent at the rate of Rs. 1,400 per month and mesne profits/damages at the rate of Rs.7,800 per month from the date of termination of the tenancy.
The respondent filed an application praying that the plaint be taken off from the file of the High Court and returned to the appellant for filing the same in the proper Court.
The High Court, accepting the plea of the respondent that under the provisions of the West Bengal Premises Tenancy Act, 1956, the expression 'tenant ' included a person continuing in possession of the accommodation even after the termination of his contractual tenancy and on such termination the possession of a tenant did not become wrong ful, held that the appellant was not entitled to claim mesne profits/damages aggregating to Rs.78,000 and therefore, the suit should have been valued at Rs.42,000 and, since no suit the value of which was less than Rupees one lakh could have been filed in the High Court, directed that the plaint be returned to the appellant for presentation to the proper Court.
Allowing the appeal and directing the High Court to proceed with the hearing of the suit.
HELD: On the facts and in the circumstances of the case the High Court was in error in prejudging the issue relating to the right of the appellant to claim mesne profits/damages and in directing that the plaint should be returned for presentation to the proper Court.
[797C D] (i) The principles which regulate the pecuniary jurisdiction of 793 civil courts are well settled.
Ordinarily, the valuation of a suit depends upon the reliefs claimed therein and the plaintiff 's valuation in his plaint determines the Court in which it can be presented.
Under section 15, C.P.C., every plaint should be instituted in the Court of the lowest grade compe tent to try it.
The Court always has the jurisdiction to prevent the abuse of the process of law and the plaintiff cannot invoke the jurisdiction of a Court by either grossly over valuing or grossly under valuing a suit.
Under r. 10 of 0.7, C.P.C., the plaint can be returned at any stage of the suit for presentation to the Court in which the suit should have been instituted.
[796A C] (ii) In the instant case the appellant has claimed a decree for Rs.78,000 for the period between 1st February, 1985 and 30th November, 1985 on the footing that the re spondent 's possession was unauthorised or illegal and he was liable to pay mesne profits or damages.
The question whether the appellant would be entitled to a decree for mesne prof its/damages at the rate of Rs.7,800 per month or at any other rate after the termination of the tenancy is a matter which has to be decided in the suit and it could not have been disposed of at a preliminary stage even before the trial had commenced.
That question has to be decided at the conclusion of the trial along with other issues arising in the suit.
Having regard to some of the decisions on which reliance is placed by the appellant in the course of the appeal, the matter is not free from doubt and the claim for mesne profits/damages is neither palpably absurd nor imagi nary.
It needs judicial consideration.
[796D G] (iii) The acceptance of the view put forward by the respondent may lead to encouraging a tenant who has forfeit ed his right to the tenancy to carry on a dilatory litiga tion without compensating the landlord suitably for the loss suffered by him on account of the unreasonable deprivation of the possession of his premises over a long period until he is able to get possession of the premises through the Court.
It cannot, therefore, be stated at this stage that the claim for mesne profits/ damages had been made without good faith and with the sole object of instituting the said suit before the High Court even though it had no jurisdic tion to try it.
[796G H; 797A]