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Sudkya Ramji Vs. Mahammed Issak - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberSecond Appeal No. 1003 of 1947
Judge
Reported inAIR1950Bom236; (1950)52BOMLR123
ActsTenancy Law; Bombay Tenancy Act, 1939 - Sections 2A, 17 and 24(1A); Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantSudkya Ramji
RespondentMahammed Issak
Appellant AdvocateK.P. Karnic, Adv. for ; K.G. Datar, Adv.
Respondent AdvocateM.G. Chitale, Adv. for Respondent No. 1
Excerpt:
bombay tenancy act (xxix of 1939), sections 17, 24, 2a - retrospective operation--tenant in lawful possession of land--tenant holding over--decree of eviction--tenant can apply to mamlatdar under the act--civil courts have no jurisdiction to determine tenants' rights--construction of statute--retrospective operation.;section 17 of the bombay tenancy act, 1939, does not apply to cases in which a decree has been obtained by a landlord before the act was passed.;there are no clear words used in section 24(1a) of the act showing a plain intention to give the section a retrospective operation, much less such a retrospective operation as to affect rights vested not only before an action is instituted, not only while the action is pending, not even while as a result of the decree obtained an.....bavdekar, j.1. respondent 1 in this appeal had sued the appellant and others in suit no. 10 of 1938 and obtained a decree for possession of the suit land after removing the house of the appellant, the father of respondents 2 to 4 and respondent 5. the case of the plaintiff in the suit was that the defendants were his tenants, but when in the year 1937 he filed a suit, they denied the tenancy and claimed that they were in adverse possession of the land as owners. the plaintiff said that consequently he did not wish to keep the defendants as tenants and had filed the suit for possession for rent and for damages for three years before the date of the suit. the trail court accepted the case of the plaintiff and gave the plaintiff a decree for possession and also for mesne profits amounting to.....
Judgment:

Bavdekar, J.

1. Respondent 1 in this appeal had sued the appellant and others in Suit No. 10 of 1938 and obtained a decree for possession of the suit land after removing the house of the appellant, the father of respondents 2 to 4 and respondent 5. The case of the plaintiff in the suit was that the defendants were his tenants, but when in the year 1937 he filed a suit, they denied the tenancy and claimed that they were in adverse possession of the land as owners. The plaintiff said that consequently he did not wish to keep the defendants as tenants and had filed the suit for possession for rent and for damages for three years before the date of the suit. The trail Court accepted the case of the plaintiff and gave the plaintiff a decree for possession and also for mesne profits amounting to Rs. 66 before the date of the suit and future mesne profits from the date of the suit till recovery of possession. This decree was reversed by the appellate Court, but it was again restored by the High Court. Respondent 1 then brought the application for execution from which the present appeal arises for recovery of possession of the site which had been let to the appellant, the father of respondents 2 to 4 and respondent 5, after removing their house which was upon the property. The respondents then took up contentions opposing the application for execution under the Small Holders Act and the Tenancy Act among others. These objections were overruled by the learned Judge before whom the execution was going on, and the appeal which was filed by the respondents was dismissed by the learned District Judge of Ratnagiri. Hence he has come in second appeal.

2. The contentions raised by the respondents under the Small Holders Relief Act are not presssd before us. It is contended before us that notwithstanding the decree which had been obtained by respondent 1, the appellant and the other respondents are entitled to remain in possession of the land because of the provisions of the Bombay Tenancy Act.

3. This Act was enacted in the first instance as Bombay Act XXIX [29] of 1939 and certain sections of the Act which did not include Section 5, which was in the old Act and Sections 2A, 5, 24 (1) (a) came into force in the area in which the site in dispute is situated only on 8th November 1946. The other sections which have been relied upon on behalf of the respondents, viz. Sections 17, 20 and 21, came into force in the area in which the site is situated on 2nd April 1946, which was after the application for execution was presented but before the learned Judge before whom execution was proceeding made his order on 22nd August 1946, ordering execution to proceed. There have been certain minior alterations even in these sections when the Amending Act of 1946, XXVI [26] of 1946 was passed. But nothing depends upon the alterations made in these sections by the later Act.

4. The contention of the appellant is that even if we ignore for the present those portions of Bombay Act XXIX [29] of 1939 which came into force in the area on 8th November 1946, the appellant and respondents other than respondent 1 had a defence to the application for execution under Section 17, Bombay Tenancy Act. Now, that section reads at present as follows:

any village a tenant is in occupation of a dwelling house built at the expense of such tenant or his predecessor-in-title on a site belonging to his landlord, such tenant shall not be evicted from such dwelling house (with the materials and the site thereof and the land immediately appurtenant thereto and necessary for its enjoyment) unless

(a) the landlord proves that the dwelling house was not built at the expense of such tenant or his predecessor-in-title, and

(b) such tenant makes a default in the payment of rent, if any, which he has been paying for the use and occupation of such site.'

The section has a proviso in the form of sub-section (2), but it has no application and may be ignored for the purpose of the present appeal. The learned advocate who appears for the appellant contends that under this section even though there was a decree obtained against the appellant and the respondents, other than respondent 1, they were entitled to say that they should not be evicted from the dwelling house and the land which was immediately appurtenant thereto and necessary for its enjoyment because before they could be so evicted the landlord has to prove both that the dwelling house was not built at the expense of such tenant or his predecessor-in-title and that the tenant had made a default in the payment of rent. The learned District Judge as a matter of fact says that in this case it is an admitted fact that the dwelling house in this case was erected by the tenants at their own expense. It is contended that consequently the landlord was not entitled to evict them from the dwelling house.

5. It is contended, however, on behalf of respondent 1 that this section cannot have any application in the case of persons who have ceased to be tenants and who after the expiration of the tenancy in their favour must be regarded merely as trespassers, though they might be described for the sake of convenience by such words as tenants on sufferance, and the learned advocate who appears for the respondents points out that what the section prohibits is the eviction by a landlord of his tenant. He contends that the word 'tenant' has not been defined under Bombay Act XXIX [29] of 1939, but under Section 2, sub-section (13) of the Act, 'the words and expressions used in the Act and not defined shall have the meaning assigned to them in the Bombay Land Revenue Code, 1879,' and the word 'tenant' is defined in Section 3, sub-section (14), Bombay Land Revenue Code, as 'a lessee, whether holding under an instrument, or under an oral agreement, and includes a mortgagee of a tenant's rights with possession; but does not include a lessee holding directly under the Crown.'

It is contended, therefore, that the tenant means a lessee and it cannot possibly include a person who may have been a lessee at one time bat who was not a lessee at the time when the party who seeks to take advantage of Section 17, Bombay Tenancy Act pleads this section. It is pointed out that Section 2 (13) of Bombay Act XXIX [29] of 1939 is imperative. It says that the words not defined in the Act shall have the meaning assigned to them in the Bombay Land Revenue Code. That is correct. It would also appear that the section does not say, as it may well have done, that the words and expressions used in the Act will have the meaning assigned to them in the Bombay Land Revenue Code unless there was something repugnant in the context. But all the same, if we were to give language of the section the meaning which the learned advocate for the respondent wants us to give, then, in that case, Section 35 could not possibly be availed of by the ex-tenant at all. If a person is a tenant, then it is obvious that he cannot possibly be evicted by any one. In the present case, the section is sought to be availed of by persons against whom an order and decree in ejectment had been passed. Such an order could not possibly have been passed against the person whose tenancy has not expired with the result that if we accept the contention that the word 'tenant' means a person in whose favour there is in existence a lease which has not expired, then the section would be rendered nugatory. In our view, therefore, we would follow the well-established rule that in tenancy legislation, the word ''tenant' is used sometimes to denote an ex-tenant who is given certain privileges. That view will be found to be laid down in Remon v. City of London Real Property Co. 1921.1 K. B. 49 : 89 L. J. K. B. 1105 which was concerned with a case under the English Rent Restriction Act, and so far as the legislation in Bombay is concerned, the Legislature has provided for it by the definition of the word 'tenant' in Section 5(11), Bombay Rent Control Act of 1947. Clause (b) of that section says that the word 'tenant' includes :

'Any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the coming into operation of this Act.'

6. But another question which arises is as to whether even if the word 'tenant' may include a person who has ceased to be a tenant at the time when the landlord seeks his eviction, it will include a person who was not a tenant at the date when Section 17 came into force. The Act was intended to provide protection for tenants of agricultural lands in the Province of Bombay. It was also enacted in order to provide for certain other purposes. But the main purpose was to protest tenants of agricultural lands. There is no reason why the Act should contain any provision to protect a person who has long before the Act came into force become a trespasser. We do not intend to suggest that the Legislature could not e. g., by having suitably defined the word 'tenant,' have provided for the protection of such persons. But ordinarily speaking, if the Act says that it was intended for the protection of tenants of agricultural lands, than one would not except to find therein provisions which would protect not only tenants but also persons who are no batter than trespassers. It is contended, however, that there is something in Section 17 which shows that the Act was intended to cover even such persons, and that, according to the learned advocate who appears for the appellant, is to be found in the words of the section which says 'a tenant shall not be evicted.' The argument is that the word 'evicted' controls the meaning of the word 'tenant.' Eviction, according to the learned advocate, who appears for the appellant, means actual explusion from the land, and he argues that in case that is the correct meaning of the word 'eviction,' then, in order to give that word the full meaning, we must hold that the word 'tenant' includes not only a person who was an ex-tenant, but also who had ceased to be a tenant even before the Act came into force, and it is open to an ex-tenant and even to a person who has ceased to be a tenant before the Act came into force to seek the protestion of the provisions of the Act, because even though an order has been passed against him that he should hand over possession, the order actually has not been executed and he still remains in possession not having been evicted in fact from the property. Now, it is correct that the word 'eviction,' may more appropriately be used for an act of expulsion, though we are not prepared to say that it may not be used in a loose sense to the passing of the decree or order in ejectment. But even if that is the more appropriate meaning of the word 'eviction,' the question which arises in this case is as to whether that literal meaning of the word 'eviction' should be accepted by us in order to enlarge the meaning of the word 'tenant' so as to include not only ex-tenants but persons who have ceased to be tenants before the Act came into force. What is as a matter of fact in question is the retrospective operation of Section 17, Bombay Tenancy Act of 1939. It is obvious that when the appellant and the respondents other than respondent 1 denied the title of the landlord, the landlord became entitled to terminate the tenancy. That is apart from certain arguments which have been advanced before us under Sections 5, 13, 20 and 21 to which I will come later. When the landlord was entitled to say that be would re-enter because of the denial of his title by the tenants, a right vested in him. That was the right to evict the tenants under the due process of law, and if we were to accept the meaning which has been urged before us of Section 17, it is obvious that we would be giving Section 17 a retrospective operation. As has been well pointed out, every statute which takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in respect of transactions or considerations already past, must be deemed retrospective in its operation, and opposed to sound principles of legislation. That does not mean that a statute may not affect vested rights. As a matter of fact, Parliament and Legislative Assemblies which have got the same powers have constantly interfered with what may be called the vested rights. It is however a general principle of interpretation of statutes in England as well as in this country that no statute shall be (construed so as to have a retrospective operation unless its language is such as plainly to require that construction. That does not again mean that when a statute is being construed, in order to avoid retrospective operation, the Court will give to the words which it employs a meaning which they cannot possibly bear. What it means is that when the effect of the adoption of what may be called the literal construction would be to take away a vested right, the Court will be slow to accept such a construction and insist upon its being satisfied that that was the intention of the Legislature. The leading case upon the point is Moon v. Durden (1843) 2 Ex. 22 followed in Doolubdass Pettamberdass v. Ramloll Thackoorseydass (1850) M. P. C. 239. It was an action upon a wager, commenced before the passing of the Gaming Act, 1845, which enacts that all contracts by way of wagering 'shall be null and void' and that 'no suit shall be brought or maintained for recovering money alleged to be won upon a wager.' This Act was passed while the action was pending and the question was whether it operated to defeat the plaintiff's claim. The Court of Exchequer decided that it did not. Parke B. said (p. 42) :

'The language of the clause, if taken in its ordinary sense, as in the first instanae we ought to do applies to all contracts, both past and future, and to all actions, both present and future, on any wager, whether past or future, But it is, as Lord Coke says, 'a rule and law of Parliament that regularly, nova constitutio futuris for man imponere debt, non prateritis.' This rule, which is in effect, that enactments in a statute are generally to be construed to be prospective, and intended to regulate the future conduct of persons, is deeply founded in good sense and strict justice, and has been acted upon in many eases.

But this rule, which is one of construction only, will certainly yield to the intention of the Legislature; and the question in this and in every other similar case is, whether that intention has been sufficiently expressed.'

The judgments of Rolfe and Alderson BB. were to the same effect.

7. We are not, therefore, very much impressed by the argument that the more correct meaning of the word 'evict' is actual expulsion and not a decree or order which is passed in ejectment. The question is as to whether the legislature sufficiently expressed by the words used an intention to give the statute a retrospective operation, that is an operation by which the right which was vested in respondent 1 immediately there was a denial of his tenancy, would be taken away.

8. This is besides a case in which the statute was enacted pending an action. And where the statute is passed pending an action as distinct from 'after the date of the cause of action,' it has been held that strong and distinct words are necessary to alter the vested rights of either litigant as they stood at the commencement of action: The Midland Railway Co. v. Pye (1861) 10 C.B N.S. 179 : 33 L.J.C.P. 314 and Turnbull V. Forman (1885) 15 Q B. D. 234 : 51 L. J. Q. B. 489.

9. But the matter does not even rest there. In this case, there is the further argument available to respondent 1 based upon the difference in the language of Section 17 and for example Section 5, though Section 5 was not extended to the area in which the land in dispute is situated until later. Now, that section specifically provides : 'Notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a protected tenant as such tenant shall not be terminated unless such tenant' has done one of several things; one of them is the failure to pay rent; another is to do an act which is destructive or permanently injurious to the land; a third is to sub-let the land or to fail to cultivate it personally, and so on. Now, it is arguable that when enacting Section 5 (2) the legislature wanted to give retrospective operation to that section as it has specifically used the language to indicate that that was its intention. If it was the intention of the Legislature when enacting Section 17, it was obvious that they would have used similar language. In any case there was nothing to prevent them from doing so. If we remember that along with the general principle that the statute is presumed to be prospective and not retrospective and the second rule that strong and distinct words ate necessary to alter the vested right of either litigant as they stood at the commencement of the action, the use of ambiguous words like 'evicted' which may have reference only to eviction of persons who were tenants at the time the Act was enacted or became tenants thereafter will not express sufficiently an intention to give the statute a retrospective operation. We, therefore, hold that Section 17 does not apply to cases in which a decree has been obtained by a landlord before the Act XXIX [29] of 1939 was enacted.

10. The learned advocate who appears for the appellant contends, however, that if Section 17 will not protect the appellant and respondents other than respondent 1, Section 24 (1A) will do so. Now, this sub-section came into force actually on 8th November 1946, after the learned Judge before whom execution was going on passed his order. But the argument which is advanced before us is that even so, the section will help the tenants because the section says specifically that 'no landlord shall obtain possession of any land held by a tenant except under an order of the Mamlatdar'. The learned advocate contends that the words 'no landlord shall obtain possession' are capable of bearing the interpretation that no landlord shall obtain such possession in an execution proceeding upon a decree which he had obtained before the passing of the Act or before the coming into force of this section, and be says that in this case there being no order obtained by respondent 1, in his favour from the Mamlatdar, the landlord was not entitled to obtain possession in execution and that is notwithstanding the fact that the section was not in force at the time when the executing Court made its order.

11. Now, here again it is perfectly clear that a literal construction of Section 24 (1A) may be invoked in order to support the view that the sub-clause is retrospective and the section is entitled to help the persons against whom the decree in ejectment is already passed. But the question again is as to whether there are used in the section words which denote a plain intention to give a retrospective effect to this section. It is possible to give the section a prospective operation by construing the section to mean, for example, that if any landlord wished to obtain possession of the land which had been let by him to a tenant, and for that purpose desired to file a suit or a proceeding in ejectment after the coming into force of Section 24 (1A), he will be compelled to have recourse to the Mamlatdar and he could not obtain a decree from a civil Court. It would obviously not be straining the language of the section to hold that this is the meaning: and in that case it must be shown that even so, that was not the intention of the Legislature and its intention was to make Section 24 (1A) applicable to all cases in which the landlord wished to obtain possession of the properly let by him irrespective of whether he had previously obtained a decree which had become final or even though he had as a matter of fact obtained an order in execution saying that he should immediately be put into physical possession of the property before the Act was extended to the area in which the property was situated. In our view, it is obvious in the first instance that there are no such clear words used in the section which would show a plain intention to give the section a retrospective operation, much less such a retrospective operation as to affect rights vested not only before an action is instituted, not only while the action was pending, not even while as a result of the decree obtained an application for execution was made but as a matter of fact after an order was obtained in execution that respondent 1 shall immediately be placed into possession of the property. It is obvious that if strong and distinct words are required in order to alter the vested rights pending litigation, then equally strong and distinct words would be required to affect the vested right when as a result of the suit a decree is obtained by one of the parties in which the rights are vested, and he has obtained an order that he should be immediately placed in possession of the property.

12. The learned advocate who appears for the tenants contends, however, that to the general rule that a statute is prospective and not retrospective there is one exception and that is when a statute affects what may merely be called procedure. He says that in case we interpret the words which have been used in Section 24 (1A) to mean that no landlord shall obtain possession of any land under a decree of a civil Court after the date when the section comes into force unless he has first gone to a Mamlatdar and obtained an order from him under Section 24(1A), we will not be allowing the statute to affect vested rights. He says that it may be that the decree loses its force as a decree; as a matter of fact, he concedes that it is useless for the decree-holder. But if subsequently the Mamlatdar embarks upon an inquiry under Section 24, Sub-section (2), the Mamlatdar will take into consideration any contention that the statute is not retrospective. He will take into consideration the fact that the-plaintiff was entitled to possession at the determination of the tenancy which he determined by a notice and be will make an order restoring the possession to the plaintiff and by holding that the decree-holder must obtain an order from the Mamlatdar, we would not be defeating his vested right to evict the tenant. We are merely calling upon the decree-holder to get another order. Whether possession is to be obtained under a decree of the civil Court which the decree-holder has already obtained or whether possession is to be obtained under an order which the decree-holder is compelled to obtain after the coming into force of Section 24 (1A) is merely a matter of procedure and consequently we should hold that in this case the decree-holder must go to the Mamlatdar and obtain an order for possession. Now in a sense, it is true that the vested right which is affected is the right of the landlord upon the expiration of the tenancy caused by the denial of his title to evict the tenant and obtain actual possession of the land. The decree merely is a step in the enforcement of that right and so is the application for execution. But it would not be correct to say even so that to interpret Section 24 (1A) in the manner in which Mr. Datar wants us to do would not affect his vested rights. As I have already mentioned, Section 24 (1A) was not in existence when the order appealed from was made. It was of course not in existence at the time when the decree was obtained. The decree is conclusive of the rights of the parties. Once those rights were determined, the principle of res judicata comes in. If the interpretation which Mr. Datar wants us to accept was allowed, there would be no bar of res judicata in case the contentions which were taken by the tenants in the suit were taken up again, or the tenants were to take fresh contentions which they ought to have taken in the suit of respondent 1 but did not take, and that, in our view, would be a question of affecting his rights. Thus in A Debtor, in re (NO. 490 of 1936) (1936) 1 Ch. 237 : (105 L. J. Ch. 129), the debtor, a married woman, had a series of speculative stock exchange transactions with the petitioning creditors extending over a period of eighteen months which resulted in a debt to them of 3,500 in repeat of which they obtained judgment against her. The petitioning creditors petitioned for a receiving order. The debtor disputed the petition on the ground that she was a married woman who was not carrying on a trade or business within the meaning of Section 125, Bankruptcy Act, 1914. The Registrar held that the transactions in which the debtor had been engaged constituted the carrying on by her of a business within the meaning of Section 125 and made a receiving order against her. The debtor appealed. Before the hearing of the appeal the Law Reform (Married Women and Tortfeasors) Act, 1935, was passed. Under that Act, Section 125, Bankruptcy Act, 1914, was repealed. It was contended before the appellate Court in appeal that even though when the Registrar made the order, Section 125 was unrepealed, yet when the appeal came before the Court of Appeal, that section was repealed and therefore there was no jurisdiction in the Court of Appeal to make that order because the Court must act in accordance with the law existing at the date of the appeal. It was held there was no substance in this contention. The Court was justified in proceeding under Section 125, Bankruptcy Act of 1914, even though the bankruptcy proceedings were not commenced until alter the Act of 1935 came into operation, so long as the act of bankruptcy was anterior to that Act. It was also held that even though an appellate Court was able and bound to give effect to new remedies which have been introduced by enactments passed after the order appealed from was made by the Court of First Instance, yet with regard to substantive rights, it is well established that the appellate Court must give effect to the same law as that which was in force at the data of the earlier proceeding (p. 243) :

'A matter of substantive right which has become res judicata cannot be upset by a subsequent general change of the law, in the absence of precise intention to make the change so retrospective being evidenced in the Act.'

13. Mr. Datar contends that in that case he would argue that Section 24 (1-A) does not require the obtaining of a separate order amounting to a decree. But all the same, after Section 24 (1-A) came into force, a new application in execution could not be entertained by the ordinary Court. The application for execution would have to be made to, and an old application must be disposed of by the Mamlatdar, and it was only upon his order that the landlord could obtain possession. Now, what Section 24 (1-A) does is that it requires the landlord for obtaining the order contemplated by the section to make an application in the prescribed form. Upon that application, the Mamlatdar is required to hold an inquiry and as a result of that inquiry, Sub-section (2) of that section empowers him to pass such orders as he deems fit.

14. Then we came to Sub-section (5) of Section 24 which says : 'Every order passed by the Mamlatdar under Sub-section (2) .... shall be deemed to be a decree of a civil Court and shall be executable as such.' Now, if we were to hold that in cases in which a landlord has already obtained a decree, it is incumbent upon him to proceed in execution before the Mamlatdar, the result is to make Sub-section (5) of Section 21 absurd. The order which would be passed by the Mamlatdar in execution would be an order saying whether possession should or should not under the decree be handed over to the landlord. One can easily understand the Legislature providing that such an order shall be deemed to be a decree of a civil Court. Orders in execution may amount to decrees as defined in the Code of Civil Procedure. But it is obvious that the words 'shall be executable as a decree as such' can have no meaning when concerned with an order which has been passed in execution. Supposing the Mamlatdar was to pass an order that the tenant should hand over possession to the landlord. There can be no question of executing that order of the Mamlatdar. The argument that even though the landlord has obtained the decree in a civil Court, he must proceed for the execution of the order before the Mamlatdar is obviously not tenable.

15. Then I come to Section 2-A of the Act, That was a section which was introduced by the Amending Act XXVI [26 ] of 1916 and it says:

'A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not

(a) a member of the owner's family, or

(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, unless the owner has within one year of the coming into force of the Bombay Tenancy (Amendment) Act, 1946, made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the person is not a tenant.'

Sub-section (2) of the same section then provides that a person described in Section 2-A (1) shall be deemed to be a tenant for the purposes of the Act, unless the Mamlatdar has made a declaration that the person is not a tenant or the Collector has made a declaration in appeal under the provisions of Sub-section (3) of Section 13 or the Provincial Government have made a declaration in appeal under the provisions of Section 28 of the Act. It is contended that the applicant is a tenant within the meaning of the words used is Section 17, because of the definition in Section 2 A even though that section came into operation after the executing Court made the order from which this second appeal has been preferred.

16. Now, we do not wish to go into the question of the retrospective operation of this section for the obvious reason that the section does not apply because of the words which are used at the commencement, 'a person lawfully cultivating any land belonging to another person.' The tenancy in favour of the appellant and the respondents other than respondent 1 in this case terminated before the filing of the suit by respondent 1. Ever since then the appellant and the other respondents are in wrongful possession of the land and there is no difference in our view between lawful and wrongful. It is contended before us that even though lawful possession would necessarily mean that the possession of the tenant must not be contrary to the provisions of the law, still in this case we must interpret the words to mean peaceful possession or something like that, and that is the words in that section, 'unless the owner has within one year of the coming into force of the Bombay Tenancy (Amendment) Act 1946, made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the person is not a tenant.' Now, it is quite true that the section contemplates that if a person who claims to be a tenant has satisfied the opening words of Section 2A, he would be deemed to be a tenant unless either the Mamlatdar has declared by an order upon the application of the landlord that he is not a tenant or the Collector has done so or the Local Government has done so. But it does not necessarily mean that the word 'lawfully' must be given some other interpretation. It seems to us that the intention as indicated in Section 2A was where the person who was in possession of the land has shown that he was in lawful possession, he is entitled to have the determination of the question as to whether he was or was not a tenant made by the Mamlatdar or the Collector or the Provincial Government and not by the civil Courts. What the Legislature as a matter of fact intended was that once the person who claimed to be a tenant showed that he was in lawful possession of the land whether he was in possession in the character of a tenant should be determined by the Mamlatdar, a Collector or the Provincial Government, and not by the civil Courts. There was no other intention ; at any rate, we cannot say that we must depart from the ordinary meaning of the word 'lawfully' because of the words relied upon, The usual rule is that the words must be taken in their ordinary meaning. That meaning may be departed from in exceptional casts but the exceptional cases proceed upon certain well established principles none of which have any bearings in the present case. The grounds relied upon by Mr. Datar are that of context first and absurdity next. I have already dealt with the first and we find no such absurdity in this case as would compel the Court to give to the word anything bat its ordinary meaning. Apart from the question of the retrospective operation of Section 2A, therefore, it is obvious that this section will not enable the appellant to claim that he was a tenant within the meaning of that word as used in Section 17, Bombay Tenancy Act.

17. We have been asked, however, by the appellant and the respondents other than respondent 1 for leave to file an application amending the written statements so as to enable them to take up contentions under Sections 5, 13A and 20, Bombay Tenancy Act, and we think that we ought to allow the defendants to do so, because it was no fault of theirs that they did not take up any of the contentions under the provisions of these sections. The provisions of Sections 6 and 13A were admittedly extended to the area in which the site is situated after the decision held by the executing Judge. But while we allow the plaintiff to take up the contentions, we do not express finally any opinion on the question as to how far such an application will help the appellants and the other respondents. Such contentions must necessarily involve an argument as to whether the sections relied upon are or are not retrospective in their operation. We only have in fact given leave because there is this difference between the language which we have been considering and the language of Section 5 which in a sense is also the language of Section 13A that both those sections have application notwithstanding any law as wall as any decree or order of the Court. There are no such words in Section 20. But the argument which has been advanced before us--and with some force--is that that section is intended to apply to the cases in which a tenant-cannot avail himself of the provisions of Section 5 or Section 13A because he has fallen in arrears. It is true that under Section 20 a tenant is entitled to certain concessions only in case he can show that the tenancy terminates for non-payment of rant, and it is arguable that in this case there has been no termination of the tenancy for non-payment of the rent, because under the Transfer of Property Act a tenancy is not liable to termination for such non-payment. That does not mean that the tenancy may not terminate for non-payment of rent under the Transfer of Property Act or the principles underlying it but it will terminate for non-payment only in case it is a term in the contract between the parties that the tenancy was to terminate if the tenant was in arrears. But Mr. Datar has argued before us--and we think with some force--that it could not possibly have been the intention of the Legislature in enacting Section 20 that that section applies to the very few cases in which the tenancy comes to an end for non-payment of rent because there has been a contract between the parties that the tenancy is to come to an end if there was failure to pay rent. It is true that the language of the section is not clear, and the section might well have been batter worded so as to show that it can be availed of by the tenant in circumstances in which the landlord can say that Section 5 is not applicable to the case because there has been failure to pay rent as provided for by Section (SIC) (2). But all the same, at any rate, prima facie we think that the intention of the Legislature in enacting Section 20 was to provide for those cases in which the tenant could not avail himself of Sections 5 and 13A because of his failure to pay the rent.

18. We, therefore, allow the request. The appellant will file his application or amendment within a period of three weeks from the date of this order of this Court.

19. The costs of the appeal will be costs in the cause.

Bavdekar, J.

20. [10th December 1948.]We allow the amendment of written statement which has been prayed for and remand the suitfor disposal according to law to the trial Court which will give an opportunity to the plaintiffto file a counter written statement if he so wishes.

21. The appellant will pay the respondent's costs of the first appeal and the second appeal. the cast of execution will abide the final result.

22. Both the parties will be allowed to lead evidence.


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