Skip to content


Umedmal Deviji Oswal Vs. K. Chopda and Co. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 793, 870 and 1122 of 1963
Judge
Reported inAIR1967Bom514; 1967MhLJ625
ActsBombay Rents Hotels and Lodging Houses Rates Control Act, 1949 - Sections 50; Code of Civil Procedure (CPC), 1908 - Sections 9, 96 and 115 - Order 41, Rule 25; Constitution of India - Article 245
AppellantUmedmal Deviji Oswal
RespondentK. Chopda and Co.
Appellant AdvocateV.M. Limaye and ;A.T. Patil, Advs.
Respondent AdvocateR.B. Andhyarujina, ;S.B. Gandhi, ;K.J. Abhyankar and ;V.N. Ganpule, Advs.
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. lvii of 1947), sections 50, 2, 3 - appeals arising out of decrees or orders passed before coming into operation of act -- whether such appeals governed by provisions of act.;the exception to the first proviso to section 50 of the bombay rents. hotel and lodging house kates control act, 1947, excepts from the proviso only execution proceedings and appeals, arising out of decrees or orders, passed before the coming into operation of the act on february 13, 1948, and no others. decrees which had already been passed before the act had come into operation are not affected by the proviso and the proviso also excludes those appeals arising out of decrees or orders passed before the coming into operation of the act. all subsequent.....(1) a short but interesting question of law as to the true meaning and effect of the exception to the first proviso to sections 50 of the bombay rents, hotel and lodging house rates control act, 1947 (hereinafter referred to as 'the rent act') arises in these three revision applications. the facts out of which the three revision applications arise are similar for the material purposes, and it would, therefore, be convenient to dispose them of by a common judgment. the petitioners in all these revision applications are the landlords and they had filed suits to recover possession of the suit premises from the respondents who were their tenants. in all these cases the trial court had decreed the suits in favour of the landlords and had directed the respondents-tenants to deliver possession.....
Judgment:

(1) A short but interesting question of law as to the true meaning and effect of the exception to the first proviso to Sections 50 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Rent Act') arises in these three revision applications. The facts out of which the three revision applications arise are similar for the material purposes, and it would, therefore, be convenient to dispose them of by a common judgment. The petitioners in all these revision applications are the landlords and they had filed suits to recover possession of the suit premises from the respondents who were their tenants. In all these cases the trial Court had decreed the suits in favour of the landlords and had directed the respondents-tenants to deliver possession of the suit premises to the landlords. The tenants preferred appeals against the decrees made by the trial Court. The learned Assistant Judge, Kolaba, heard all the appeals and accepted the contention made on behalf of the tenants that the suits were governed by the provisions of the Rent Act and the decrees made against them should be set aside. Consequently all these appeals were allowed and the suits filed by the petitioners-landlords were dismissed. It is against the orders of the learned Assistant Judge, Kolaba, that the present three revision applications have been filed by the landlords.

(2) The position which is common to all the suits is that on the dates on which the suits were filed as well as on the dates on which the decrees for ejectment were made by the trial Court against the tenants, Parts II and III of the Rent Act were not extended to the area in which the suit premises were situated. By Notification No. BRA. 1861/28178-E dated the 5th of June 1962 issued by the Government of Maharashtra, in exercise of the powers conferred by sub-section (2) of section 6 of the Rent Act was extended to some villages including the villages in which the suit premises are situated, with effect from the date of the notification and that Part was to apply to premises let for residence, business, trade or storage. Thus Part II having been extended to these villages during the pendency of the appeals, a question was raised on behalf of the tenants, who were the appellants before the learned Assistant Judge Kolaba, that the appeals must be decided on the basis that the suits were governed by the provisions of Part II of the Rent Act. This contention raised on behalf of the tenants found favour with the learned Assistant Judge and he held that the plaintiffs-landlords were not entitled to get possession of the suit premises merely on the ground of determination of their respective leases by a valid notice to quit. He was of the view that the landlords had been unable to make out any ground on which the decrees for eviction against the provisions of the Rent Act. It is the correctness or otherwise of this view of the learned Assistant Judge that has come for consideration in these revision applications.

(3) Before dealing with the contentions raised by the learned advocates for the landlords that the Rent Act did not apply to these suits, as Part II was extended by the State Government by the notification of the 5th of June 1962 after the decrees for ejectment had been passed by the trial Court and during the pendency of the appeals, it would be convenient to refer to some of provisions of the Rent Act which are relevant for deciding the question which arises in these revision applications. The Rent Act has been brought on the statute book to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. Section 3 of the Rent Act provides that it shall come into operation on such date as the State Government may, by notification in the Official Gazette, appoint in this behalf and that it shall remain in force up to and inclusive of the 31st day of March 1968 and shall then expire. It is common ground that a notification under Section 3 was issued by the State Government and the date appointed for the Act to come into operation was the 13th February 1948. The Rent Act is in four parts. Part I provides for matters of preliminary nature, such as, the extent, commencement and duration of the Act and exemptions, etc. Part II, which is by far the most material part of the Act, deals with residential and other premises. Part III provides for hotels and lodging houses and Part IV contains miscellaneous provisions. We are not directly concerned in the present revision applications with Part III. Section 2 of the Act is as follows:-

'2. (1) Parts I and IV of this Act shall extend to the Bombay area of the State of Maharashtra.

(2) Parts II and III shall extend respectively to the areas specified in Schedules I and II to this Act and shall continue to extend to any such area notwithstanding that the area ceases to be of the description therein specified.

(3) The State Government may, by notification in the Official Gazette, extend to any other area any or all of the provisions of Part II or Part III or of both.

(4) The State Government may, at any time by like notification, direct that any or all the provisions of Part II or Part III or of both, as the case may be, shall cease to extend to such area and on such date as may be specified in the notification; and on that date the said provisions shall cease to be in force in such area.'

It is clear from this section that Parts I and IV of the Act will extend to the Bombay area of the State of Maharashtra forthwith on the Act coming into force. Similarly, in respect of areas specified in Schedule I and Schedule II of the Act, Parts II and III shall extend simultaneously with the coming into operation of the Act and shall continue so to extend to those areas notwithstanding that the area ceases to be of the description therein specified. With regard to areas which are not specified in Schedules I and II, the State Government has the power to extend the provisions of Part II or Part III or both, by a notification in the Official Gazette and the State Government has also been given the power by a like notification to direct that any or all the provisions of Part II or Part III or both shall cease to extend to such area. Section 50, which is in Part IV is material and, to the extent relevant, is as follows:-

'50. The Bombay Rent Restriction Act, 1939, and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, are hereby repealed:

Provided that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply . . . . . . . . . which are pending in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act or shall be continued in such Courts, as the case may be, and all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings. Nothing in this proviso shall apply to execution proceedings and appeals arising out of decrees or orders passed before the coming into operation of this Act and such execution proceedings and appeal shall be decided and disposed of as if this Act had not been passed: The landlords placed reliance on these provisions of Section 50 in support of their contention that the appeals were pending when the notification extending Parts II and III of the Act was issued by the State Government and the appeals were, therefore, saved from the application of Parts II and III of the Act. The contention was that admittedly the decrees evicting the tenants had been made by the trial Court before the notification extending Parts II and II was issued and in fact the notification was issued after the appeals had been filed. Mr. Patil for the petitioner in Civil Revision Application NO. 1122 of 1963 placed reliance particularly on the exception to the first proviso and contended that, with reference to the areas in which the suits premises are situate, Parts II and III had not come into operation before the decrees w ere passed and against which appeals had been filed by the tenants, and the appeals had, therefore, to be disposed of as if the Act was not in operation and Part II was not applicable to the suit premises. Prima facie it would appear that the appeals filed by the tenant s before the Assistant Judge, Kolaba, were appeals contemplated to be excluded by the second proviso and Mr. Patil's contention would then seem to have force. But the question is not so simple and easy to decide as it appears to be in the first instance. It would, therefore, be necessary to examine carefully the various arguments advanced by Mr. Patil in support of this contention.

(4) The first contention of Mr. Patil is that Section 50 is a repealing section and the main section only repeals the two enactments referred to therein, which were in force at the time of the repeal. In this submission the provisions to the main Section 50 only qualified what the main section enacts. In other words, according to Mr. Patil, the proviso must be read as a proviso only to the substantive enactment and must be taken as making out only and exception to the repeal. The argument in effect is that suits and proceedings between landlords and the tenants relating to the fixing of rent or recovery of possession were pending under the Bombay Rent Restriction Act, 1939, and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 thereinafter referred to as 'the 1939 Act' and 'the 1944 Act' respectively at the time of the repeal and it was only those suits which were sought to be brought under the Rent Act, as otherwise they would have proceeded under the law which was in force at the time when those suits were instituted. He pointed out Section 7 of the Bombay General Clauses Act and contended that that section would have applied and the suits under the 1939 Act and the 1944 Act would have continued but for the saving of those suits by the first proviso to Section 50. This argument would have had some substantive if the proviso only qualified or created an exception to the enactment which is contained in the main Section 50. If the proviso, however, is not merely one which qualifies or makes an exception to the main enactment but contains a substantive rule of law, it cannot be interpreted to limit its scope only to the main section. On the face of it, the proviso refers to all pending suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply and also provides that these pending suits shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under the Rent Act. The substantive rule of law in the proviso is that after the transfer of the suits and proceedings all the provisions of the Rent Act and the rules made thereunder shall apply to such suits and proceedings. At the time when the repeal had effect there were suits and proceedings pending in Courts between landlords and tenants relating to the recovery of fixing of rent or possession of any premises, which were not under the 1939 Act or the 1944 Act, and all such suits and proceedings were, in the terms of the proviso, sought to be transferred and were to be governed by the provisions of the Rent Act and the rules made thereunder. It is not necessary to dilate in any greater detail on this contention. In Shankarlal v. Pandharinath, : AIR1951Bom385 , a Division Bench of this Court held that the main provisions of Section 50 of the Rent Act, which is merely a repealing section, do not fetter or limit or control the explicit or specific provisions contained in the proviso to the section, and the proviso cannot be legitimately read as confined only to those cases which fell within the purview of the repealed Acts, namely, the 1939 Act and the 1944 Act.

(5) Mr. Patil, however, relied on a judgment of the Supreme Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra, : [1962]2SCR159 and contended that the very same question was canvassed and the Supreme Court left this question open after stating that the arguments advanced before their Lordships were interesting and must could be said on both the sides. Having carefully seen the observations in this judgment, it does not appeal to me that as the nature and scope of the proviso the question was left open by their Lordships. The following are the relevant observations of the Supreme Court (p. 410 of Bom LR) = (at p. 1600 of AIR):-

'The law with regard to provisos is well-settled and well-understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. But , provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses, in which cases they will not be construed as controlled by the section. The proviso which has been added to Section 50 of the Act deals with the effect of repeal. The substantive part of the section repealed two Acts, Which were in force in the State of Bombay. If nothing more had been said, Section 7 of the Bombay General Clauses Act would have applied, and all pending suits and proceedings would have continued under the old law as if the repealing Act had not been passed. The effect of the proviso was to take the matter out of Section 7 of the Bombay General Clauses Act and to provide for a special saving . . . ........... The proviso here saves pending suits and proceedings, and further enacts that suits and proceedings, and further enacts that suits and proceedings then pending are to be transferred to the Courts designated in the Act and are to continue under the Act and any or all the provisions of the Act are to apply them'.

This puts the matter beyond doubt and the first proviso to Section 50 cannot therefore, be regarded as merely qualifying or making an exception to the main enactment, Section 50, but it does contain substantive provisions relating to the law which would be applicable to suits transferred thereunder. The contention, therefore, that only suits under the 1939 Act and the 1944 Act were sought to be brought within the ambit of the proviso cannot be accepted.

(6) It was then contended that even assuming that the proviso was treated as substantive law, the question still remains as to which are the pending suits which come within the scope of the proviso. Mr. Patil says that only those suits which were pending at the time when Section 50 was enacted are referred to in the proviso. He says that , apart from suits under the 1939 Act and the 1944 Act, there were other suits between landlords and tenants relating to the recovery of rent or possession of premises and all these suits were to be transferred under the proviso and were to be dealt with under the Rent Act. The argument proceeds that the proviso applies to suits which were then pending but it would not apply to suits which would be pending at a future date when Part II, for example, would be extended to some areas by the State Government in exercise of their powers under sub-section (3) of Section 2 of the Rent Act. Now, Mr. Patil is right that this question also was argued before the Supreme Court in Shah Bhojraj's case, : [1962]2SCR159 , referred to above, but was not decided. An argument was advanced on behalf of the landlords that even if the proviso was treated as substantive law, it must be taken to apply only to suits and proceedings pending at the time of the repeal, and on the other hand, the contention on behalf of the tenants was that the effect of the proviso was much wider and it applied to such cases as would come within the words of the proviso whenever Part II is extended to new cases. This contention was expressly left open by the Supreme Court and was not decided. In support of this contention, an interesting argument was advanced by Mr. Patil that on the language of Section 50 itself the proviso could not be said to apply to suits which may be pending when Part II or Part III of the Act would be extended by the State Government in exercise of their powers under sub-section (3) of Section 2 of the Act. He says that the language of the proviso refers to suits and proceedings to which 'all the provisions of Part II apply'. He points out that the reference in the proviso is to suits 'which are pending in any Court'. This proviso, so far as these expressions are concerned, has been on the statute book from the beginning and Mr. Patil says that the Legislature referred only to the present tense. According to him, it referred to suits to which Part II applied at that time. Under sub-section (2) of Section 2 of the Rent Act, Parts II and III extend simultaneously with the Act coming into force to the areas specified in Schedules I and II. According to this submission, these were areas to which Part II applied in the beginning when the Act came into operation and if any suits or proceedings in respect of such suits were then pending, they were sought to be covered by the proviso. As a logical consequence of this argument, Mr. Patil says that the appeals referred to in the exception to the first proviso , refer to these pending suits and not to appeals which would be pending when Part II of the Act was extended later on so as to apply to certain other areas. In substance the argument is that the suits and proceedings included in the proviso were those really pending at the time and not to those which would be pending potentially' at a future date. The matter, however, is not res integra. A similar question was considered by a Division Bench of this Court in Mahalinga Bandappa v. Venkatesh : AIR1957Bom201 , Mr. Justice Vyas, who delivered the judgment of the Division Bench, observed that under Section 50 of the Rent Act the suits which were pending at the date on which the provisions of Part II of the Act were applied to the suit premises would be governed by the Act, though at the date upon which the suits were filed the provisions of Part II were not applied to the suit premises. The judgment shows that Part II was made applicable to the suit premises in that case at a later date and Mr. Justice Vyas held that the suits which were pending at the date of the issue of such notification were covered by the proviso. In view of this judgment of a Division Bench of this Court, any other consideration on this question is not open to me.

(7) The next argument is that even if suits pending at the time when Part II was extended by the State Government to an area may come within the scope of the proviso to Section 50, the extension to the proviso expressly takes out of its purview appeals arising out of decrees or orders passed before the coming into operation of the Act and that those appeals have to be decided and disposed of as if the Rent Act had not been passed. The contention is that the Act can be said to have come into operation in respect of the area in which the suit premises are situated only when the State Government by notification under Section 3 extended Part II to that area. Parts I and IV contain preliminary and miscellaneous provisions and Mr. Patil's contention is that it is Part II which affords protection to the tenant and makes provisions in respect of various matters regarding residential and other premises. Minus Part II, says Mr. Patil, the other Parts are of no consequence for residential and other premises and the Act can be said to have come into operation only when Part II was extended to an area. The decrees for ejectment in the present cases were passed before Part II was extended to the area. Even the appeals had been filed before Part II was extended to the area and Mr. Patil says that under the exception to the first proviso these appeals were excluded from the application of the Act and had to be decided and disposed of as if the Act had not been passed. The learned Assistant Judge held that the expression 'decrees or orders passed before the coming into operation of this Act' in the exception to the first proviso was not the same as 'decrees or orders passed before Part II was applicable'. He took the view that suits, which were pending at the time when Part II was extended by a notification under Section 3 to the area, came within the scope of the proviso, and the appeals, even though they were against the decrees or orders made before Part II was extended to the area, were not excluded by the exception to the proviso. Mr. Patil submits that this view of the learned Judge is erroneous. His contention is that the intention of the exception to the first proviso was to exclude appeals so that the appeals could proceed on the basis of the same law which applied before the decree or doer in the suit was made and the mere intervention, at a subsequent date after the decree or order, of a notification extending Part II to the area would not affect the appeal at all. In other words, the coming into operation of the Act, according to Mr. Patil, is synonymous with the application of Part II of the Act and whenever a decree or order is made before the application of Part Ii, any appeal against such decree or order would come within the exception to the first proviso to Section 50. After the Act was brought into operation on the 13th of February 1948, it has undergone amendments by Bombay Act III of 1949. As Section 50 originally stood, execution proceedings and appeals were expressly excepted from the proceedings referred to in the proviso. By Act III of 1949 the words 'other than execution proceedings and appeals' were deleted from the first proviso and the exception to the first proviso was inserted. The fact that before this amendment of Act III of 1949 the execution proceedings and appeals were expressly excepted would show that but for that exception proceedings would have included execution proceedings and appeals. The exception, however, introduced the exclusion of appeals expressly provided for in the exception itself. In Bhagwant Rambhau v. Ramchandra, : AIR1953Bom129 , Mr. Justice Gajendragadkar, as he then was, who delivered the judgment of a Division Bench of this Court, observed as follows:

'Besides, it has to be remembered that the original proviso to Section 50 as well as the subsequent amendment have expressly laid down that the provisions in the proviso would not apply to appeals and execution proceedings. This would be necessary only if the expression 'suits and proceedings' would ordinarily have included appeals and execution proceedings, if this expression had not included appeals and execution proceedings it would have been superfluous to lay down that the provisions of the proviso would not apply to appeals and execution proceedings. Therefore the words 'suits and proceedings' must be deemed to include appeals and execution proceedings, and in that sense the new proviso must be held to apply to decrees passed in appeals as much as to the decrees passed in the suits'.

The learned Judge was, in the case before him, concerned with the interpretation of Section 13 of Bombay Act III of 1949 and in that connection the Court had to construe the import of the expression 'suits and proceedings' in the proviso to Section 50. It would, therefore, appear to be beyond doubt that but for the exclusion made in the first proviso to Section 50, all appeals were included in the expression 'suits and proceedings' in the first proviso. That is why by Bombay Act III of 1949, although the expression 'other than execution proceedings and appeals' was deleted, a specific provision was introduced by way of an exception to the first proviso excluding execution proceedings and appeals arising out of decrees or orders passed before the coming into operation of this Act. Since the appeals referred to in the exception are excluded from the scope of the proviso by way of an exception, the exception will have to be strictly construed and such appeals or execution proceedings as would be included in the main proviso cannot be taken out from it, unless the language of the exception warrants such exclusion. The expression 'decrees or orders passed before the coming into operation of this Act' would have to be interpreted in this light, and as to what the expression 'before the coming into operation of this Act' means will have to be ascertained on an examination of the scheme of the Act.

(8) Sub-s. (1) of S. 3, which is material, is as follows: 'This Act shall come into operation on such date as the State Government may, by notification in the Official Gazette, appoint in this behalf'. Section 2 provides for the extent of the various Parts of the Act. As soon as the Act is brought into operation, by a notification under Section 3 by the State Government , Parts I and IV shall extend to the Bombay area of the State of Maharashtra. Similarly, Parts II and III shall simultaneously extend to the areas specified in Schedules I and II respectively. It is, therefore, logical that the simultaneous applicability of Parts I and IV to the Bombay area of the State of Maharashtra as well as of Parts II and III to the areas specified in Schedules I and II respectively can take place only if the State Government brings the Act into operation by appointing a date for that purpose. With regard to the other areas, only Parts II and III of the Act have to be extended by a notification under Section 3 by the State Government. The State Government can even withdraw some areas from the applicability of Parts II and III, after once those Parts have been extended, by a subsequent notification, under sub-section (4) of Section 2. It seems to me that, looking at this scheme of Sections 2 and 3 read together, the bringing into operation of the Act must precede the extention of its various Parts to the areas concerned as specified in Section 2. It would not be correct to say that the Act is not in operation till Parts II and III are not extended by the State Government to the other areas under sub-section (3) of Section 2. Mr. Patil contends that Parts II and III, being the most vital in respect of residential and other premises, a mere notification by the State Government under Section 3 has no meaning and the ?Act, must, therefore, be said to have been brought into operation when these Parts are extended to these areas. It must be remembered that the State Government has to exercise its powers to extend these Parts to other areas under sub-section (3) of Section 2 of the Act and the State Government itself would not derive these powers unless the Act is in operation. The State Government may exercise these powers given to it, but this it can do only when the Act has been brought into operation. It appears to me, therefore, that the extension of these Parts to areas specified in Schedules I and II or to the other areas by notification in the Official Gazette issued by the State Government must follow and not precede the bringing into operation of the Act by the State Government under Section 3. The language of the exception to the first proviso to Section 50 itself lends support to this interpretation of the expression. Execution proceedings and appeals arising out of decrees or orders passed before the coming into operation of the Act are excepted and are required to be decided and disposed of 'as if this Act had not been passed'. If the contention made on behalf of the petitioners is accepted, the expressions 'passed before the coming into operation of this Act' and 'as if this Act had not been passed' would have to be read as 'passed before Part II extended' and ' as if Part II had not been applied'. From the scheme of the Act the intention was to make the provisions of the Act applicable to all pending proceedings which included appeals also. The general exclusion of execution proceedings and appeals, as it existed prior to the deletion of these words from the proviso by Act III of 1949, was accompanied by the introduction of the exception on the first proviso. On a plain reading of the exception to the first proviso, it appears to me that the Legislature did not want to exclude anything other than what it expressly stated, in clear words, in the exception to the first proviso. And the intention which can be gathered from the language of the exception is unambiguous, inasmuch as it excepts only execution proceedings and appeals, arising out of decrees or orders, passed before the coming into operation of the Act and no others. Decrees which had already been passed before the Act had come into operation were not affected by the proviso. Similarly, the object of the proviso also is to exclude those appeals arising out of decrees or orders passed before the coming into operation of the Act. All subsequent proceedings, including appeals, were sought to be brought within the scope of the provisions of the Act. In any case, that is the only intention which can be gathered from the plain and clear language employed in the exception to the first proviso to Section 50. It is, therefore, difficult to accede to Mr. Patil's contention that appeals arising out of decrees or orders passed after the Act came into operation were also included in the exception to the first proviso. The view taken by the learned Assistant Judge, therefore, that the present decrees against which the appeals were pending before him, not having been passed before the 13th of February 1948, on which date the Act came into operation, were not covered by the exception to the first proviso to Section 50 is correct. Under the circumstances, it must b held that the appeals were governed by the provisions of the Rent Act and the rules made thereunder.

(9) I may mention that my attention was invited to a judgment of Mr. Justice Naik in Second Appeal No. 738 of 1964 decided on the 14th of December 1965 (Bom). It is true that Mr. Justice Naik was dealing with a case which was on facts identical with the facts in the present revision applications. On a careful perusal of the judgment it appears that the learned Judge was called upon to consider whether appeals also were included in the scope of the first proviso to Section 50 of the Rent Act, as appeals were a continuation of the suits. What was contended before him was that if a suit had come within the scope of the first proviso on the ground that it was pending when Part II of the Act applied to the area, the appeal, being a continuation of that suit, must also be taken to have been included within the scope of the first proviso. He held that normally an appeal would be regarded as a continuation of the suit, but there was nothing which prevented the Legislature from making an exception to this normal rule and by the exception to the first proviso the Legislature had made such an exception in respect of appeals. It does not seem that the attention of the learned Judge was drawn to the contention that the exception to the first proviso applied only to appeals against decrees or orders passed before the coming into operation of the Act, i.e. before the State Government exercised its powers of bringing the Act into operation under Section 3(1) of the Act. The date appointed in this case for bringing the Act into operation was the 13th of February 1948 and the argument that the Act must be said to have come into operation only on that date and not on the date on which Part II was extended to the area by a notification under sub-section (3) of Section 2 was not advanced before him and was, therefore, not considered by Mr. Justice Naik . as to the view taken by Mr. Justice Naik that the Legislature can provide for an exception to the normal rule that an appeal is a continuation of a suit, I respectfully agree. The only question is as to what exactly is the scope of the exception actually made by the Legislature in the exception to the first proviso. That question did not fall for Mr. Justice Naik's consideration in this case.

(10) I may mention that in Civil Revision Application No. 793 of 1963, the suit in which the decree for ejectment was made against the tenant by the trial Court was on the ground of non-payment of rent and the tenancy was terminated by a notice to quit. The same was the position in the suit out of which Civil Revn. Application No. 870 of 1963 has arisen. It was not contended on behalf of the petitioners in these revision applications that in view of the fact that Part II was made applicable to the area during the pendency of the appeals prejudice was caused to the petitioners and that the learned Assistant Judge should have remanded these matters to the trial Court for disposal in accordance with law. I think that the learned advocates had no scope for such a contention on the facts out of which the revision applications had arisen. In the suit out of which Civil Revision Application No. 1122 of 1963 arises. It appears that in the notice to quit, which was given by the petitioner-landlord, he had stated that he wanted the suit premises for his own use. In the appeal which was filed by the tenant before the learned Assistant Judge also it was contended that in the event of the Court taking the view that Part II of the Rent Act applied to the appeal, the decree for ejectment should be confirmed on the ground that the landlord required the suit premises for his own use. Mr. Patil, therefore, contended that the learned appellate Judge should have remanded the matter back to the trial Court for disposal in accordance with law and, therefore, I should set aside the order of the learned Assistant Judge and send this matter back to the trial Court for disposal in the light of the provisions of the Rent Act. Now, if I had been satisfied that any real prejudice was caused to the tenant, I would have considered this contention made by Mr. Patil. An issue was framed in the trial Court as to whether the premises were reasonably and bona fide required by the plaintiff for his own use and occupation and, if so, to whom greater hardship would be caused if the decree was passed. In view of the fact that the trial Court had taken the view that the suit was not governed by the Rent Act, be considered this issue in the alternative and held that the plaintiff had failed to prove that the premises were reasonably and bona fide required by him for his own use and occupation. He also held that greater hardship would be caused to the landlord than to the tenant if a decree were passed against the tenant. The learned Assistant Judge was also called upon to consider whether on the evidence led in the suit the decree for ejectment on the ground that the landlord required the suit premises for his own use and occupation should not be confirmed. The learned Assistant Judge has observed that the finding of the learned trial Judge as to the requirement of the plaintiff was in fact not challenged before him in appeal. Under the circumstances, no prejudice seems to have been caused to the petitioner-landlord even in Civil Revision Application No. 1122 of 1963, as both the Courts had considered this question of fact and had come to the conclusion that the landlord had not proved his bona fide requirement of the suit premises.

(11) In view of this, the orders made by the learned Assistant Judge in the appeals before him will have to be confirmed and the rules in these three revision applications will have to be discharged. Under the circumstances of the cases, there will be no order as to costs.

(12) Rules discharged.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //