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Firm, Ratanchand Darbarilal, Satna and ors. Vs. Rajendra Kumar Khoobchand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 867 of 1968
Judge
Reported inAIR1970MP1; 1969MPLJ672
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12, 13, 13(1) and 13(2)
AppellantFirm, Ratanchand Darbarilal, Satna and ors.
RespondentRajendra Kumar Khoobchand and ors.
Appellant AdvocateB.L. Seth, Adv.
Respondent AdvocateK.N. Agarwal, Adv.
Cases Referred and Ram Sarup v. Munshi
Excerpt:
.....sub-section (2) for the same subject-matter, which is described as 'suit or proceeding' in the opening portions of sub-sections (1) and (2) which clearly shows that the word proceeding is used to mean an appeal......tenant to deposit in court or pay the landlord arrears of rent and to continue to deposit or pay rent month by month by 15th of each succeeding month, the obligation to deposit or pay the rent continues till the disposal of all appeals arising from the suit. it is no doubt true that on general principles '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'; garika pati v. subbiah choudhary, air 1957 sc 540 at p. 553. it is also true that as an appeal 'is intended to interfere in the cause, it is a part of it and in connection with some matters and some statutes it is said that an appeal is a continuation of the suit'; dayawati v. inderjit, air.....
Judgment:

Singh J.

1. The questions of law referred to the Full Bench are:

'(1) Where the landlord's suit under Section 12 of the M. P. Accommodation Control Act, 1961, is dismissed and he prefers an appeal, is such appeal governed by Section 13 of the Act?

(2) Where a decree for ejectment is passed against the tenant on any of the grounds referred to in Section 12 of the Act, and the tenant prefers an appeal from that decree, is such appeal governed by Section 13 of the Act?'

2. The Madhya Pradesh Accommodation Control Act, 1961, which repealed and replaced the Madhya Pradesh Accommodation Control Act, 1955, according to its long title is 'an Act to provide forthe regulation and control of letting and rent of accommodation and the eviction of the tenants therefrom,' Restriction on eviction of tenants is imposed by Section 12 which enacts that notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction except on one or more of the grounds mentioned in Clauses (a) to (b) of Sub-section (1), Then follows Section 13, which has given rise to this reference. The section is worded as follows:

'Section 13. When tenant can Ret benefit of protection against eviction. -- (1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate,

(2) If in any suit or proceeding referred to in Sub-section (1), there is anv dispute as to the amount of rent payable by the tenant, the Court shall fix a reasonable provisional rent in relation to the accommodation to be deposited or paid in accordance with the provisions of Sub-section (1) till the decision of the suit or appeal.

(3) If, in any proceeding referred to in Sub-section (1), there is any dispute as to the person to whom the rent is payable the Court may direct the tenant to deposit with the Court the amount payable by him under Sub-section (1) or Sub-section (2), and in such a case, no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same.

(4) If the Court is satisfied that any dispute referred to in Sub-section (3) has been raised by a tenant for reasons which are false or frivolous, the Court may order the defence against eviction to be struck out and proceed with the hearing of the suit.

(5) If a tenant makes deposit or payment as required by Sub-section (1) or Sub-section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the Court may allowsuch cost as it may deem fit to the landlord,

(6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit.'

3. Three constructions of this section were suggested at the bar:

(A) An appeal being a continuation of the suit, it must be taken to be included within the word 'suit' in Sub-section (1) and the tenant is bound to continue to deposit rent till the disposal of all appeals arising in a suit instituted by the landlord on any of the grounds referred to in Section 12 irrespective of whether the appeal is by the landlord or by the tenant;

(B) An appeal is neither a 'suit' nor 'proceeding' and is not at all included within Sub-section (1) and a tenant is not bound to deposit any rent in appeal whether the appeal be by the landlord or by the tenant; and

(C) An appeal is a 'proceeding' and falls within that word as it occurs in Sub-sections (1) and (2) and if an appeal is by the landlord for obtaining a decree on any of the grounds referred to in Section 12, the provisions of Section 13 are attracted and the tenant is required to make deposit of rent as provided in Sub-sections (1) and (2). But an appeal by a tenant although a proceeding is not ''a proceeding instituted by the landlord' and does not fall within Sub-section (1) and therefore, the tenant is not required to deposit rent in such appeal which falls outside the purview of Section 13.

4. The first construction is supported on the reasoning that an appeal is a continuation of the suit and when Section 13(1) requires the tenant to deposit in Court or pay the landlord arrears of rent and to continue to deposit or pay rent month by month by 15th of each succeeding month, the obligation to deposit or pay the rent continues till the disposal of all appeals arising from the suit. It is no doubt true that on general principles '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'; Garika Pati v. Subbiah Choudhary, AIR 1957 SC 540 at p. 553. It is also true that as an appeal 'is intended to interfere in the cause, it is a part of it and in connection with some matters and some statutes it is said that an appeal is a continuation of the suit'; Dayawati v. Inderjit, AIR 1966 SC 1423 at p. 1427. It does not, however, follow that in every statute whenever the word 'suit' is used, appeals arising from suit must be included within it. To find out the real content of the word 'suit' andfor that matter any word when used in a statute the setting and the context in which the word is used must be taken Into account. There are three reasons why appeal cannot be held to be included within the word 'suit' as it occurs in Sub-sections (1) and (2) of Section 13. First, the language used in the opening words of Sub-sections (1) and (2) is 'suit or proceeding'.

Now it is difficult to comprehend any proceeding instituted on the grounds mentioned in Section 12 other than a suit and an appeal by a landlord. If an appeal by a landlord be also included within the word 'suit', the word 'proceeding' occurring in Sub-sections (1) and (2) would become superfluous. Secondly the language used in the concluding portion of Sub-section (2) is 'suit or appeal' which goes to show that the intention of the draftsman was to describe appeal separately and not to use the word 'suit' as inclusive of appeal. Thirdly, if an appeal, being a continuation of the suit, is included within the word 'suit' in Sub-section (1) then even after a landlord's suit is dismissed and before he actually files an appeal, the tenant must continue to go on depositing rent on the 15th of each month. That is to say, a tenant must, in all cases, assume that an appeal would be filed against mm although, in fact, the landlord may not afterwards file any appeal. Unless, the tenant proceeds on this assumption, he cannot comply with the requirement of Sub-section (1) of continuing to deposit month by month on the 15th of each succeeding month a sum equivalent to the rent. Such a result is so unreasonable that by itself it goes to show that the legislature could not have intended to include appeal within the word 'suit'. In our opinion, there are manv difficulties in the way of accepting the first construction, which has to be rejected.

5. The second construction suggested at the bar seeks its support on the ground that under Section 5 of the repealed Act, express provision was made authorising the appellate Court, on an appeal being preferred, to order the tenant to deposit rent from the date of filing of appeal till the decision of appeal, and if the legislature intended to apply Section 13 of the present Act to appeals, it would have similarly used express language embracing appeals within Sub-section (1). It is also pointed out that Sub-section (6) of Section 13, which authorises the Court in case of failure of the tenant to deposit or pay rent as required by the section, to strike off the defence against eviction and to proceed with the hearing of the suit, goes to show that the entire subject-matter of Section 13 is limited to the hearing of the suit and does not apply to appeals. Reference to the language of a repealedAct as an aid to construction of a later Act cannot ordinarily be made unless the words used in the later Act do not by themselves give out their meaning clearly. Moreover, it is not correct to say that Section 13 of the present Act does nowhere expressly refer to appeals. Sub-section (2) of Section 13, which provides for fixation of a reasonable provisional rent in case of dispute, clearly says that the rent so fixed shall be 'deposited or paid in accordance with provisions of Sub-section (1) till the decision of the suit or appeal.' The express use of the word 'appeal' in Sub-section (2) clearly contemplates that appeals are also within Sub-section (1) and at least in some appeals the tenant would be bound to deposit or pay rent as required bv Sub-section (1).

The construction suggested that Section 13(1) does not deal with any appeal at all will result into making the word 'proceeding' as it occurs in the opening words of Sub-sections (1) and (2) and also the word 'appeal' in the concluding portion of Sub-section (2) wholly redundant and devoid of any meaning. Sub-section (6) in our opinion, does not create any difficulty in holding that appeals are also included within Sub-sections (1) and (2). The language used in Sub-section (6) 'that the Court shall proceed with the hearing of the suit' can apply to appeals, for appeal in its true sense is a rehearing of the suit; Lachmeshwar Prasad Shukul v. Keshwarlal, AIR 1941 FC 5 at p. 13 and Ram Sarup v. Munshi, AIR 1963 SC 553, p. 563. The Appellate Court while hearing an appeal can also be said to be hearing the suit. In face of express mention of appeal in Sub-section (2), it is difficult to accept the extreme contention that no appeals are included within Section 13.

6. The third construction suggested at the bar, which adopts a middle course, appears to us to be the most acceptable. By including 'appeal' within the word 'proceeding' as it occurs in the opening portions of Sub-sections (1) and (2), the word 'proceeding' is given a meaning which is consistent with use of the words 'suit or appeal' in the concluding portion of Sub-section (2). It must be noticed that the opening words in the Sub-sections (1) and (2) make a reference to 'suit or proceeding'. The same subject-matter, however, in the concluding portion of Sub-section (2) is referred to as 'suit or appeal'. This clearly goes to show that the word 'proceeding' in the opening portions of Sub-sections (1) and (2) was used by the draftsman to signify appeal. It is true that the word 'instituted' and the words 'writ of summons' as used in Sub-section (1) are not very appropriate to appeals. According to the terminology employed in the Code ofCivil Procedure a suit is 'instituted' and an appeal is 'preferred', and a 'summons' is issued in a suit and a 'notice' is issued in an appeal. But the words 'instituted' and 'writ of summons' used in Sub-section (1) fit in with the word 'proceeding' and if an appeal be included within the word 'proceeding', it cannot be excluded merely because of the use of the words 'instituted' and 'writ of summons'. In a loose sense even an appeal may be said to be instituted and notice of appeal may be described as writ of summons. What is more important is that by construing the word 'proceeding' to signify appeal, we are able to give meaning to the word 'proceeding' as it occurs in Sub-sections (1) and (2) and further, we are also able to give effect to the use of the word 'appeal' in the concluding portion of Sub-section (2).

Thus, on this construction, the entire language used in this section is made operative and effective. The word 'proceeding' in a general sense means 'the form and manner of conducting judicial business before a Court or judicial officer;' (Black's Law Dictionary p. 1368). A suit, appeal or second appeal can all be described as proceedings. Indeed, in Sub-section (3) of Section 13 the word 'proceeding' alone is used and it must, according to its context, mean 'any suit or proceeding' referred to in Sub-section (1). Thus, in Sub-section (3) the word 'proceeding' embraces even a suit. But in the context of Sub-sections (1) and (2), where suit is separately mentioned, the word proceeding can only mean an appeal. To put it briefly, the words 'suit or proceeding' as they occur in the opening portions of Sub-sections (1) and (2), must be construed to mean 'suit or appeal' which are the words used in the concluding portion of Sub-section (2). On this construction, which we find to be most acceptable when an appeal or second appeal is preferred by the landlord against the dismissal of his suit, Sub-section (1) will become operative and the tenant within one month of the service of the notice of appeal or within such further time, as the appellate Court may allow, will have to deposit all arrears of rent and thereafter will have to continue to deposit or pay month by month on the 15th of each succeeding month rent till the decision of the appeal.

An appeal by a tenant will not be included in Sub-section (1), for it cannot be described as a proceeding being instituted by the landlord. Similarly, such appeal will also not fall under Sub-section (2), for that sub-section is also limited to a suit or proceeding referred to in Sub-section (1) and so are the other sub-sections. A tenant has occasion to appeal when asuit for eviction filed against him is decreed. Now in such appeal, the question of payment of rent for a period after the decree, does not really arise until the tenant obtains a stay of execution of the decree. If the tenant does not apply for stay, the landlord can execute the decree and obtain possession and he will not be interested in rent If and when a tenant applies for stay of execution and the Court is inclined to grant his prayer, it can impose terms and direct the tenant to deposit or pay all arrears of rent and to continue to deposit or pay rent month by month till the disposal of the appeal. This power can be exercised under Order 41, Rule 5 read with Section 151 of the Code of Civil Procedure. Imposition of such terms is a very common practice of the Courts in this State whenever stay of execution of an ejectment decree against a tenant is granted. The Legislature must have been aware of this practice and therefore, no provision was made for payment or deposit of rent during the pendency of an appeal preferred by a tenant against whom a decree for eviction is passed.

On the other hand, if we include an appeal by a tenant within the language of Section 13, the tenant will have to deposit rent in appeal whether he applies for stay of execution or not and whether he is actually evicted or not. This again is an unreasonable result, which could not have been intended by the legislature. In our opinion, the third construction suggested at the bar is the proper construction of Section 13. To say the least, the section is drafted in a slovenly manner. The problem of construction, which this Full Bench has to face, could have been easily avoided if instead of using the words ''suit or proceeding' in the opening portions of Sub-sections (1) and (2) the words 'suit or appeal' were used. However, the careless drafting has not made the section so ambiguous that its meaning cannot be gathered. As we have already pointed out, the key to the solution is in the use of the words 'suit or appeal' in the concluding portion of Sub-section (2) for the same subject-matter, which is described as 'suit or proceeding' in the opening portions of Sub-sections (1) and (2) which clearly shows that the word proceeding is used to mean an appeal.

7. For the aforesaid reasons, we answer question No. (1) in the affirmative and question No. (2) in the negative.


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