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Sharafat Ullah Khan Vs. Raja Udairaj Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 168 of 1951, 321 of 1953 and Special Appeal No. 1 of 1956
Judge
Reported inAIR1959All416
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3; Uttar Pradesh (Temporary) Control or Rent of Eviction (Amendment) Act, 1954 - Sections 14 and 15
AppellantSharafat Ullah Khan
RespondentRaja Udairaj Singh
Appellant AdvocateNiamatullah, ;Mohd. Hakimuddin, ;Mohd. Halimuddin and ;Inayatullah, Advs.
Respondent AdvocateB.K. Dhaon, Adv.
Excerpt:
tenancy - eviction suit - sections 3,14 and 15 of the u.p. (temporary) control of rent and eviction act, 1947 - ordinarily landlord entitled to evict his tenant according to contract of tenancy or provision of law - eviction suit filed by landlord is vested right - suit filed before the amendment act, 1954 - does not effect the maintainability of the suit. - - no suit shall, without the permission of the district magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds :(a) that the tenant has wilfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from the landlord; temporary control of rent and..........of procedure or was it a substantive right. they held that:--'the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.the right of appeal is not a mere matter of procedure but is a substantive right.' their lordships further laid down that: --'the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision.....
Judgment:

J.K. Tandon, J.

1. These are three appeals in which a common question of law as to the effect of the U. P. (Temporary) Control of Rent and Eviction (Amendment) Act, 1954, arises. Appeals Nos. 168 of 51 and 821 of 53 have been referred to a Division Bench by a learned Single Judge of this Court, as an important question of law, about which there was some conflict also was raised. In Special Appeal No. 1 of 56 also the same question is involved. All the three appeals have accordingly been heard together. In order to appreciate the points in controversy the following short history of the U. P. Control of Rent and Eviction Act, 1947 may be necessary. This Act was first enacted in 1947 and was by virtue of Sub-section (3) of Section 1 thereof given effect to on and from the 1st day of October, 1946. Section 3 of the Act placed restriction on the right of a landlord to file a suit for eviction of a tenant from any accommodation in these terms:

'No suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds : --

(a) that the tenant has wilfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from the landlord;

(b) .........'

The above provision continued in that form in the Act until 30th September, 1954 when it was amended by the U. P. Temporary Control of Rent and Eviction (Amendment) Act, 1954. In its amended form Clause (a) read as follows : --

'(a) That the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand.'

The amending Act of 1954 further provided in Sub-section (2) of Section 1 that it shall come into force with effect from 30th September, 1954. An express provision was thus made in this Act of 1954 that it shall come into force with effect from 30th September, 1954.

2. From a comparison of the old and the new version of Clause (a) referred to above it would appear that originally the provision in it was in respect of 'any arrear of rent' as distinguished from the new provision, according to which the arrear had to be for more than three months. The rest of the provisions remained more or less the same at least in this respect that the liability of the tenant continued to rest on his failure to pay the arrears within one month of the service upon him of the notice of demand.

3. The three suits of which the three appeals have arisen were admittedly instituted prior to 1st October, 1954, when the amending Act of 1954 came into force. In the case of Second Appeal No. 168 of 51 the suit was commenced in 1949 and there was at the time of the institution of the suit an arrear of rent due from the tenant for three months only, that is, from 1st January, 1949 to 31st March, 1949. Besides the arrears amounting to Rs. 225/-, the plaintiff also claimed Rs. 75/- as compensation for use and occupation of the accommodation during the month of April, 1949.

4. In the case of Second Appeal No. 321 of 53 two months' rent was in arrear at the time of the institution. Besides the allegation by the landlord also was that the defendant had caused damage to the accommodation for which he claimed a sum of Rs. 200/-. This suit was commenced in 1951.

5. In the case of Special Appeal No. 1 of 56 the defendant occupied the accommodation in suit at a rent of Rs. 6/- per mensem and he was in arrears of rent from 1st May, 1951 to 31st July, 1951, that is, for three months when a notice was served upon him demanding the same. This suit, too, was instituted in 1951.

6. In the last mentioned case the trial court dismissed the suit for ejectment but upheld the claim for arrears of rent. It, however, allowed deduction for alleged repairs done to the house by the tenant. On appeal the learned Civil Judge repelled the tenant's claim to deduct the amount of costs of repairs claimed from the arrears of rent. He, however, held that three was no wilful default in the payment of rent. On that finding he refused to give a decree for ejectment. On appeal a learned Single Judge (C. B. Agarwala J.) disagreed with the learned Civil Judge on the ground that there was no wilful default in the payment of rent but he refused to give a decree for ejectment on the ground that since the institution of the suit the Amending Act of 1954 had come into force and according to the amended Clause (a) existence of three months' arrears was necessary which was not the position in the case. Accordingly he held that a decree for ejectment could be granted.

7. In the other two cases a decree for ejectment has been granted by the court below on the finding that the defendant-appellants were in arrears of rent at the time of the institution of the suit. It might have been noticed earlier also that the arrears of rent in these two cases also were not for a period of more than three months. The question, therefore, arose in them too how far the right of the plaintiff landlord was affected by the Amending Act of 1954. The defendants-tenants claimed that since the arrears were not for a period of more than three months, the above amendment in 1954 in Clause (a) rendered the claim for ejectment liable to be rejected. In the suit to which appeal No. 321 of 53 relates the two courts below also held the defendant liable to eviction on the ground that he damaged the accommodation.

8. From the above description of facts in the three cases the common question of law arising in them is how far the amendment of Clause (a) of Section 3 of the Act made in 1954 affected the maintainability of suits for eviction filed prior to the amendment, if at the time they were instituted the necessary condition then required by Clause (a) was fulfilled.

9. Before the above question is considered it would be worthwhile to refer to the fact that the U. P. Control of Rent and Eviction Act was enacted to control the letting and rent of residential accommodation and to prevent the eviction of the tenants therefrom. Like similar provisions relating to letting and rent of residential accommodation, Section 3 of the Act has placed a restriction on the right of a landlord to pursue his remedy of eviction by a suit without the permission of the District Magistrate, except on one or more of the grounds mentioned in Clauses (a) to (g) of Sub-section (1) of that Section.

The rights and liabilities of landlords and tenants therefore continued to be governed in matters other than those which had been provided for in the above Act by the provisions of the Transfer of Property Act, or other law applicable to them. Since the purpose of the U. P. (Temporary) Control of Rent and Eviction Act is to control for a temporary period the eviction of tenants from any accommodation, Section 3 has simply placed certain restrictions on the powers of the landlord, otherwise possessed by him in that respect, not to file a suit for eviction except with the permission of the District Magistrate envisaged by it.

The power to evict a tenant has not been abrogated thereby, but a restriction or impediment has been imposed or created on the exercise of that power which in terms of the section can, except in the cases referred to in Clauses (a) to (g), be exercised with the permission of the District Magistrate. A landlord is under the ordinary law, entitled to evict his tenant in accordance with the contract of tenancy or the provisions of the Transfer of Property Act. That right belongs to him apart from the provisions of the XL P. Control of Rent and Eviction Act, 1947.

That right of his, however has been controlled by Section 3 of the Act. A suit for eviction by a landlord is a legal pursuit of this remedy available to him under the ordinary law. The right of suit is thus a vested right which belongs to him. But as a result of Section 3 certain restrictions have been imposed on the exercise of that right.

10. The learned counsel appearing for the tenant has suggested that while the right to evict a tenant may be said to be a vested right belonging to the landlord but a suit to enforce that right is not a vested right. He would describe it as a matter of procedure only, and the idea underlying this contention is that any change in the law taking place subsequently is retrospective where the provision which has been changed is procedural in nature. In this way he has asked us to hold that the Amending Act of 1954 by which Clause (a) of Sub-section (1) of Section 3 was amended was retrospective.

11. The right of suit to enforce some other right belonging to a party is not a matter of procedure. It is indeed a very valuable and substantial right without the presence of which what may be called the other right of a person will be rendered of no use or purpose. Without the remedy to enforce the right, the right itself becomes, if that expression may be used, truncated. The right of suit which is the legal pursuit of the remedy is in the circumstances itself a vested right.

12. In Carikapati Veeraya v. N. Subbiah Choudhry, (S) AIR 1957 SC 540 the question arose before their Lordships of the Supreme Court whether the right of appeal was a mere matter of procedure or was it a substantive right. They held that:--

'The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

The right of appeal is not a mere matter of procedure but is a substantive right.'

Their Lordships further laid down that: --

'The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.'

13. This case was concerned with the right of appeal but the question involved was with regard to the 'legal pursuit of the remedy' which included both a suit and an appeal from the order passed in the suit. The right involved is the right to obtain the remedy which is obtainable by a suit etc. The right of suit is thus a vested right and not a matter of procedure as the learned Counsel has contended.

14. One other fact which will be of use in judging the controversy is that in every one of the three cases the suits had already been instituted long before the Amending Act 1954 was enacted. Section 3 of the parent Act placed no restriction on the right of suit for eviction where the tenant wilfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from him. By instituting the above suits on the ground that the tenants had wilfully failed to make payment of the arrears despite the notice given to them, the plaintiffs exercised that right of theirs. On the date these suits were instituted they were properly instituted suits and their maintainability could not be assailed on the ground that permission of the District Magistrate had not been obtained. The plaintiffs had the right on those date to have the suits instituted by them and to be heard on merits etc.

15. The effect of the Amending Act of 1954 has now to be considered. Did it have the effect to amend retrospectively the provision in Clause (a) of Section 3 (1) so as to require even in cases already instituted, the new condition contained in that Clause to be fulfilled. As was pointed out earlier too Sub-section (2) of Section 1 of that Act made provision for its coming into force with effect from 30th September, 1954. There is no separate provision in Section 4 either of that Act, by which Clause (a) aforesaid was amended, to show that retrospective effect had been given to that particular amendment. Therefore, according to the express language of the enactment, this Act had no retrospective application. It came into force with effect from 30th September, 1954 and it must for that reason alone not be deemed to have retrospective effect.

16. This question came up for consideration in the case of Ram Saran v. Lala Bir Sen, 1958 All WR (HC) 62. That was a case in which the effect of the amendment in Clause (a) aforesaid was considered and the learned Judge held that the amendment in Clause (a) was not retrospective in effect and did not govern suits instituted validly under the law in force when they were filed but which could not have been instituted validly under the amended provision. We entirely agree with the above view about the amendment in Clause (a) of Section 3 (1) of the U. P. Control of Rent and Eviction Act, 1954 held by the learned single Judge.

17. Reliance was placed on behalf of the respondents on the case of Raja Ram v. Madho Prasad, 1954 All LJ 195 : (AIR 1954 All 592) decided by a Division Bench. The U. P. Control of Rent and Eviction Act, 1947, as originally enacted, exempted from its operation buildings which were not complete on the first day of July, 1946. By the Amending Act of 1948 (U. P. Act XLIV of 1948) even buildings completed after the 1st of July, 1946, were brought within its purview. The question arose whether the Amending Act of 1948 was retrospective or prospective. The suit itself out of which the said appeal came to this Court, was instituted prior to the coming into force of the Amending Act, 1948, and related to an accommodation which was not complete on the 1st day of July, 1946. The learned Judges held that the Act of 1948 applied not only to future suits but also to pending proceedings. In other words, they held that even in the case of suits, appeals though commenced prior to the coming into force of the Act 1948 but still pending, Section 3 of the Act was attracted. They relied on five cases of this Court and ultimately came to this conclusion :

'In the case before us, though it is true that the amendment was not retrospective, the whole scheme of the Act being such that it not only affected future suits but also pending proceedings and decrees already passed, it must be held that the amendment which came into effect during the pendency of the suit in the trial court had to be taken into consideration.'

The above observation was made in view of Sections 3, 14 and 15 of the Act of 1947 which were held to cover all types of cases whether pending or not.

18. In the first place we consider that the facts of the above case were materially different than here. By the amending Act of 1948 properties which were till then not covered by the provisions of the Act of 1947 were included in it and the question before the learned Judges was whether the inclusion of these other properties attracted the other provisions of the Act with reference to them. In the instant case no new property has been included but a change has been effected by the Act of 1954 in Section 3 (1) (a) and the simple question is whether this change in Clause (a) has to be given retrospective application so as to affect even pending suits which were instituted prior to 1954.

19. It is settled law that normally a legislative enactment will not affect vested rights of parties unless the enactment has so expressly said or the legislative intention is otherwise borne out by it. The Legislature has power to make a retrospective provision and if it does so there will be nothing wrong about it on the ground that it will affect vested rights or pending causes. But the enactment must show this intention either expressly or by necessary intendments. In the absence of anything in the enactment concerned to show that it is to nave retrospective effect it will not be open to give it that intention or to alter 'the law applicable to a claim in litigation at the time when the Act was passed.'

20. There is nothing in the Act of 1954 which can support the conclusion that it was to have retrospective operation. The commencement clause, to which we referred earlier has instead provided that it shall come into force from the 30th September, 1954. There is thus the express provision against any retrospective operation, Prospective operation alone has been given to it with effect from the 30th September, 1954. We are unable to find any other provision also in the Act, of 1954 to give retrospective operation to the amendment made in Clause (a) of Section 3 of the main Act, to which the learned Judges referred in Raja Ram's case, 1954 All LJ 195 : (AIR 1954 All 592) (supra), is clearly prospective according to its language. Sections 14 and 15 of the Act may in a sense be said to be retrospective but actually speaking they too are not fully so.

Section 14 provides that no decree for the eviction of a tenant from any accommodation passed before the date of the commencement of the Act of 1947 shall be executed in so far as it related to the eviction of such tenant during the continuance of the Act except on any of the grounds mentioned in Section 3. Likewise Section 15 has provided that in suits for eviction of a tenant from any accommodation pending at the said commencement a decree for eviction shall not be passed except on one or more of grounds mentioned in Section 3. In both cases the restriction placed on the execution of a decree or the making of a decree for eviction has been circumscribed by the grounds found in Section 3.

To this extent, therefore, they do affect pending causes or decrees already passed. It must not, however, be overlooked that Section 14 expressly relates to decrees passed before the commencement of the Act of 1947 and likewise Section 15 to suits pending at the said commencement. The Act of 1947 commenced either on the 1st of July, 1946 from which date it was given effect to or when it was published in the Gazette. From whatever date its commencement is counted, none of the three suits here were suits pending at the said commencement.

21. Following the rule, therefore, that an enactment is not to have retrospective operation, unless it is so provider, Sections 14 and 15 have given retrospective operation to the Act of 1947 to a limited extent only, namely, to decrees passed before its commencement and to suits pending on the date of its commencement. These sections cannot be warrant for the proposition that a suit filed after the commencement will also be governed or in any way affected by them. With great respect to the learned Judges in the above Division Bench case we are unable to hold that Sections 3, 14 and 15 of the Act of 1947 have the effect of conferring retrospective operation to the amending Act also.

22. We may at this very stage point out thatin Special Appeal No. 1 of 1956 the attention ofthe learned single Judge apparently failed to beinvited to the provision in Section 15 which clearly confined the operation of that section to suits whichwere pending at the commencement of the Act of1947. This section did not apply to suits instituted subsequently. This section is applicable to thosecases only which were pending at the commencement of the Act of 1947 and in those cases a decree for eviction cannot be made except on oneor more of grounds mentioned in Section 3. But it hasno application to cases, as the one before us,which were filed long after. In their case effectto the amended Clause (a) of Sub-section (1) of Section 3 canbe given in one circumstance only, viz, that theamendment itself has been given retrospective operation.

23. We may also point out that in order to read the intention of the Legislature as to whether the Act of 1954 was to have retrospective operation or prospective only, the intention has to be read and construed from the provisions of the Act of 1954 itself. It is that enactment which should ordinarily determine the true intention of the Legislature. The provisions of Section 14, or for the matter of that, Section 15 also which exist in a different enactment cannot in our opinion be validly imported in reading the legislative intention in the case of the Act of 1954. So far as this Act is concerned instead of giving any retrospective effect to it, the express provision made in it is that it shall come into force with effect from the 30th of September, 1954.

24. For the above reasons we are unable to hold that the amendment in Clause (a) of Sub-Section (1) of Section 3 by the Act of 1954 was retrospective in operation or required pending suits to be decided in accordance therewith. In this connection we may further point out that the rights of suit is a vested right. That right had also been exercised. No question therefore, remained about impairing that right, more so when there was no provision in the Act of 1954 so laying down.

25. In the result, therefore, we are of theopinion that all the three suits out of which thepresent appeals have arisen deserved to be decreed.We accordingly allow Special Appeal No. 1 of1956 and set aside the judgment and decree of thelearned single judge and order the suit for eviction to be decreed with costs throughout. Theother two appeals Nos. 168 of 1951 and 321 of1953 are dismissed with costs.


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