1. This is a Letters Patent Appeal against the decision of the learned Single Judge (G. P. Singh, J.) in Second Appeal No. 1015 of 1973 arising out of a suit for ejectment, arrears of rent and mesne profits.
2. This case has evoked considerable interest since senior Advocates of this Court are arrayed on either side. The plaintiff-appellant is the wife of Shri A. R. Choubey, a senior Advocate of this Court, while the defendant Shri R. K. Pandey is also an equally senior Advocate of this Court, In order to avoid bitterness and to promote good relations between the two, the learned Single Judge made a sincere effort to settle the dispute amicably; but his efforts bore no fruit. This Bench too made a suggestion in this connection; but it gained no ground.
3. The material facts of this case, which give rise to this appeal, are as follows :
4. The defendant has been occupying the house in suit bearing No. 1716, Napier Town, Jabalpur, as a tenant since 1959 on a monthly rent of Rs. 156. The plaintiff purchased the said house on 14-6-1972 and, after determining the tenancy of the defendant by a quit notice, instituted the suit, out of which this appeal arises, on 18-1-1973 for ejectment, arrears of rent and mesne profits. Ejectment was claimed on the grounds specified in Clauses (a), (b) and (i) of Sub-section (1) of Section 12 of the Madhya Pra-desh Accommodation Control Act, 1961 (hereinafter referred to as 'the Act'). The trial Court decreed the suit for ejectment on the grounds specified in Clauses (b) and (i) of Sub-section (1) of Section 12 of the Act. The claim for arrears of rent from 1st February, 1972 to 13th June, 1972 was dismissed and as rent due from 14th June, 1972 was duly deposited in Court uSider Section 13 (1) of the Act, the plaintiff was held to be not entitled to seek eviction on the ground specified in Clause (a). In appeal, the first appellate Court affirmed the decree for ejectment only on the ground mentioned in Clause (b). It negatived the claim on the ground under Clause (i) but allowed the cross-objection and decreed the arrears of rent from 1st February, 1972 to 13th June, 1973.
5. In second appeal, the learned Single Judge held that the plaintiff had failed to make out any ground under Sub-section (1) of Section 12 of the Act and, therefore, the claim for ejectment was dismissed. The decree for the arrears of rent passed by the first appellate Court was, however, affirmed. Against this decision of the learned Single judge, the plaintiff has preferred this appeal under Clause (10) of the Letters Patent after obtaining leave from him.
6. The respondent Shri R. K. Pandey has filed a cross-objection under Rule 22 of Order 41, Code of Civil Procedure (hereinafter referred to as 'the Code'), praying that the plaintiff's claim be dismissed in toto.
7. We propose to deal with the cross-objection first because it concerns some of the basic issues which it would be proper to decide before dealing with the appeal itself. A preliminary objection has been raised by Shri R. S. Dabir, learned counsel for the appellant, that the cross-objection is not tenable, since it is in the nature of a cross-appeal and, therefore, cannot be entertained without the leave of the learned Single Judge as required by Clause 10 of the Letters Patent.
8. From the language of Clause 10 of the Letters Patent it is clear that an appeal against the decision of a Single Judge of this Court in second appeal is maintainable only where he certifies the case as a fit one for appeal. The question, however, is whether, where -an appeal has been filed by one party with the leave of the Judge under the said clause, the other party is entitled as of right to file a cross-objection under Rule 22 of Order 41 of the Code without obtaining such leave.
9. Shri R. P. Tiwari, learned counsel for the respondent relied on the decision of this Court in Ghasnin v. Kaushalya, 1961 MPLJ 733 in support of his contention that the cross-objection can be entertained. In that case it was held that the provisions of the Code are applicable to a Letters Patent Appeal and, therefore, a cross-objection under Rule 22 of Order 41 of the Code can be entertained in such appeal. Shri Dabir, however, urged that the said case is distinguishable because it appears from paragraph 1 of the judgment therein that the cross-objection was in the nature of a cross-appeal for which leave of the Single Judge had been obtained.
10. There can be no doubt that Order 41 is applicable to Letters Patent Appeals and there is no difference between the procedure in Letters Patent appeals and ordinary appeals, so far as the Code is concerned. In Mst. Sabitri Thakurain v. Savi, AIR 1921 PC 80 theirLordships held that there was no reason why there should be any general difference between the procedure of the High Court in matters coming under the Letters Patent and its procedure in other matters. Relying on this decision it was held by the Lahore High Court in Khazanchi Shah v. Niaz Ali, AIR 1940 Lah 438 that Order 41 of the Code is applicable to Letters Patent Appeals and as such a cross-objection can be entertained in a Letters Patent Appeal.
11. Appeals under the Letters Patent are of two kinds : (1) appeals as of right and (2) appeals by the leave of the Judge concerned. Appeals from the decisions of a Single Judge in original matters or in first appeals lie as of right to this Court under Clause 10 of the Letters Patent. There is absolutely no room for doubt that a cross-objection can be entertained in such appeals under Rule 22 of Order 41 of the Code. But in the case of appeals, which can be entertained only with the leave of the Judge concerned, it has to be considered whether a cross-objection can be entertained without the leave of the Judge. It would be here pertinent to mention that the Lahore case referred to above related to a Letters Patent Appeal against the decision of a Single Judge in first appeal which could be filed as of right. Shri Dabir relied on a decision of the Calcutta High Court in Brojendra Chandra Sarma v. Prosunna Kumar Dhar, AIR 1920 Cal 776. In that case it was held that Rule 22 of Order 41 is not applicable to an appeal under Clause 15 of the Letters Patent of that Court. This decision, however, cannot be treated as good law in view of the decision of the Privy Council in AIR 1921 PC 80 (supra).
12. Shri Dabir further relied on two decisions of the Allahabad High Court viz. Mt. Daroupadi Debi v. S. K. Dutt, AIR 1957 All 48 and Sukhanand v. Baikunth Hath, AIR 1962 All 509. In the Latter case a Division Bench of the Allahabad High Court, relying on its earlier decision, held that the right to file a cross-objection was not available in respect of a Letters Patent Appeal. With great respect we are unable to agree with this vjew. In our view a cross-objection would be tenable where the respondent has obtained the leave of the Judge to file an appeal under Clause 10 of the Letters Patent.
13. The Code does not provide for an appeal to the High Court from the decision of Single Judge of that Court. The right to prefer such an appeal is conferred by the Letters Patent and, therefore, the extent and scope of that right must be determined from the provisions thereof. The right to prefer anappeal must be distinguished from the procedure to be followed where such an appeal is competent. Although the procedure is regulated by the Code, the competence of an appeal under the Letters Patent has to be determined exclusively with reference to its provision. This takes us to the question of cross-objection. A cross-objection is in the nature of a cross-appeal. Under the English Law, a cross-objection is treated as a cross-appeal and the party filing a cross-objection has to give notice of motion of such cross-appeal if he intends on the hearing of the appeal to contend that the decision of the Court below should be varied in his favour; vide paragraph 789, at p. 327, Halsbury's Laws of England, Third Edition, Vol. 9.
14. It would be here pertinent to refer to the provisions of Sub-rule (1) of Rule 22 of Order 41 of the Code, which is reproduced below for facility of reference :
'Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.'
15. The aforesaid provision can be divided into two parts : The first part provides that the respondent, even though he may not have appealed from any part of the decree, may support the decree on any of the grounds decided against him in the Court below. The second part provides that the respondent may take any cross-objection to the decree which he could have taken by way of appeal within the period specified therein. So far as the right conferred by the first part is concerned, it is an absolute right to support the decree on any of the grounds decided against the respondent. For this purpose it is not necessary for him to file any cross-objection. The question of filing a cross-objection arises only where the respondent wants to have the decree varied in his favour; but a cross-objection can be entertained only where the respondent could have taken such objection to the decree by way of appeal. It is thus clear under Sub-rule (1) of Rule 22 of Order 41 of the Code that a cross-objection can be entertained only where the respondent has a right of appeal against the decree. The right of the respondent to support the decree in his favour on any of thegrounds decided against him stands on a different footing. It is a procedural right which accrues to him by virtue of Rule 22 of Order 41 of the Code.
16. We have already observed that Rule 22 of Order 41 of the Code is applicable to Letters Patent Appeals under Clause 10 of the Letters Patent and, therefore, in such appeals the respondent is entitled to support the decree on any of the grounds decided against him. But, before entertaining a cross-objection, the respondent must be able to show that he was entitled to take such objection by way of appeal. In other words, a cross-objection can be entertained where a cross-appeal would be competent.
17. From the language of Clause 10 of the Letters Patent it is clear that an appeal by either party against the decision of a Single Judge in Second Appeal is not competent unless he obtains leave from him for preferring such an appeal. The right of a Judge to grant leave or not is absolute and cannot be questioned. It is open to him to grant leave without any restrictions or with such restrictions as he thinks fit.
18. In Madanlal Chhotelal v. Ramprakash Ghasiram, AIR 1963 Madh Pra 329 it was held that it is always open to a Single Judge granting leave for filing appeal under Clause 10 of the Letters Patent to restrict the leave to a particular point; and if leave is so restricted, the appellant in the Letters Patent appeal cannot be permitted to urge any other point. A similar view was expressed in Nagar Palika, Sabalgarh v. Laxminarayan, 1968 MPLJ 808. Where a decree is partly in favour of one party and partly in favour of the other party grant of leave to one cannot be construed as grant of leave to the other party as well. It is thus clear that where a party wants to prefer an appeal against any part of the decree against him, he must obtain leave of the Single Judge; and where he fails to do so, he cannot claim the right to prefer such appeal by way of cross-objection merely because the other party has preferred an appeal after obtaining the necessary leave.
19. In 1961 MPLJ 733 (supra) relied upon by Shri R. P. Tiwari it appears that both the parties had obtained leave of the Single Judge to file appeals and, therefore, the cross-appeal could be entertained as a cross-objection under Rule 22 of Order 41 of the Code. Where the respondent has a right of appeal but does not choose to exercise it in the first instance, he may reserve his right to do so by way of a cross-objection where an appeal has been filed by the other party; but that is another matter. Where a party has no right to file an appeal against thedecree, Rule 22 of Order 41 of the Code does not confer on him the right to file a cross-objection in respect at such decree.
20. We, therefore, hold that since the respondent did not obtain leave of the learned Single Judge to file an eppeal against that part of the decree which was against him, he is not entitled to question that part of the decree by way of a cross-objection under Rule 22 of Order 41 of the Code as he had no right to file a cross-appeal in respect of such matter.
21. The cross-objection, therefore, fails and is hereby dismissed. We now proceed to deal with the appeal.
22. Even though we have held that the cross-objection cannot be entertained, this does not, however, preclude the respondent from supporting the decree on the grounds decided against him in view of Rule 22 of Order 41 of the Code. We shall, therefore, first deal with such grounds.
23. The trial Court and the first appellate Court had held that the defendant was a tenant of .Thakur Indrajitsingh and not of his father Thakur Chhatarsingh. The contention of the respondent is that the house in suit belonged to Thakur Chhatarsingh and that the defendant was the tenant of Thakur Chhatarsingh and not of his son Thakur Indrajit-singh. It is not disputed that plaintiff purchased the house in suit on 14-6-1972 by a registered sale-deed of that date from Thakur Indrajitsingh; but it is contended that Indrajitsingh was only a benamidar for Thakur Chhatarsingh, The trial Court and the First Appellate Court held that the house belonged to Thakur Indrajitsingh, the defendant-respondent was his tenant and Thakur Indrajitsingh was not a benamidar for Thakur Chhatarsingh. These findings, though affirmed by the learned Single Judge, are challenged before us.
24. It is significant that there was no written lease or agreement of tenancy between the defendant and his landlord. The counterfoils of the rent receipts issued to the defendant were, however, produced vide Exs. P-8 and P-9 and it is clear from them that though rent was often collected by Thakur Chhatarsingh and sometimes by Smt. Geeta wife of Indrajitsingh and Vinod grandson of Chhatarsingh, rent receipts were invariably issued on behalf of Indrajitsingh showing him as the Landlord. This clearly indicates that Thakur Indrajitsingh was the landlord and not Thakur Chhatarsingh. We further find that soon after the sale of the house, Indrajitsingh informed the defendant by notice (Ex. P-6) that he had transferred the house in favour ofthe plaintiff and, therefore, the latter had become the landlord. The defendant never disputed what was stated in this letter by sending any reply that Thakur Chhatarsingh was his landlord and not Thakur Indrajitsingh. There is thus a volume of evidence on the basis of which the first two Courts came to the conclusion that the defendant was the tenant of Thakur Indrajitsingh, This is essentially a finding of fact and could not be disputed in second appeal, unless it could be shown that it was vitiated by any error of law. The finding was affirmed by the learned Singh Judge; and there is absolutely no justification for coming to a different conclusion thereon.
25. As for the contention of the defendant that Indrajitsingh was merely a benamidar for his father Thakur Chhatarsingh, the learned Single Judge pointed out that from the recitals in the sale-deed Ex. P-5 it is not possible to infer that Indrajitsingh was a mere benamidar. Excepting a bare oral statement of the defendant, which was disbelieved by the first two Courts, there is no evidence whatsoever that Indrajitsingh was merely a benamidar. Apart from this, the question whether a transaction was a be-nemi transaction is a question of fact and the Courts of fact having held against the defendant on this point, the finding could not be challenged in second appeal. We have, therefore, no hesitation in upholding the finding of the learned Single Judge that it has not been proved that Indrajitsingh was merely a benamidar for his father Chhatarsingh.
26. Shri Dabir further pointed out that even If it were held that Indrajitsingh was a benamidar, it would make no difference because he could pass title to the purchaser. In support of his contention he relied on two decisions of the Nagpur High Court: Mst. Saria v. Murlidhar, 13 Nag LR 197 = (AIR 1917 Nag 205) and Narainrao v. Hanumantram, 26 Nag LR 277 = (AIR 1930 Nag 273). It was held in these cases that a benamidar can by transfer pass a good title to property to the transferee. In Sree Meena-kshi Mills Ltd. v. Income-tax Commr., AIR 1957 SC 49 their Lordships, while dealing with benami transactions, held that where a benami transaction signified a transaction which is real, as for example, when A sells property to B but the sale deed mentions X as the purchaser, the transfer is an operative transfer resulting in the vesting of title in the transferee. We need not, however, go into this question any further because we agree with the finding of the learned Single Judge that it has not been proved that the vendor Indrajitsingh was a mere benamidar.
27. We now proceed to deal with the grounds on which eviction has been claimed by the plaintiff. The most important ground is the one falling under Clause (b) of Sub-section (1) of Section 12 of the Act. The said clause is reproduced below for facility of reference:
'That the tenant has, whether before or after the commencement of this Act, unlawfully sub-let, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise.'
The first two Courts have held that the plaintiff was entitled to seek eviction on this ground; but the learned Single Judge took a contrary view. He affirmed the finding of the first two Courts that the defendant had parted with the possession of the suit house in favour of his brother; but in his view the plaintiff could not succeed on this ground unless it could be shown that the parting with the possession was unlawful because, in his opinion, the word 'unlawfully' used in the aforesaid clause qualifies all the three types of act of the tenant mentioned therein. The learned Judge held that it was not proved that parting with the possession was unlawful and, therefore, the plaintiff could not succeed on this ground.
28. Before us the finding of the learned Single Judge that the defendant had parted with the possession of the premises in suit in favour of his brother was challenged as incorrect. Shri R. P. Tiwari for the respondent, contended that the strictly legal concept of possession was not kept in view while arriving at the said finding and, therefore, he urged us to reconsider the matter in the light of the evidence on record.
29. The concept of possession in law is not a simple one and anyone interested in an academic discussion of the question may refer to the analysis of possession at pages 523 to 529 of Jurisprudence by Paton. Third Edition. Ordinarily, possession implies the co-existence of two important factors : (1) animus, that is an intention to hold and enjoy property; and (2) corpus, that is, physical control over the property.
30. In the instant case, the facts, which have been brought out in the evidence, are that Shri B. K. Pandey, brother of the defendant, who is also an Advocate, is at present occupying the house. Shri R. K. Pandey purchased another house in 1965 or 1966 for a consideration of Rs. 45,000 and got it remodelled to make it suitable for his needs. Shri R. K. Pandey admitted that it is a bigger house than the house in suit and it fully meets his residential as well as office requirements. We may here quote his own version in paragraph 73 of his deposition :
^^esjk [kkuk] ihuk] jguk] lksuk] bR;kfn esjs u,edku esa gksrk gSA tc eSa oknxzLr edku esa vk;k rks esjh nQ~rj dh rFkk jgus dhnksuksa] t:jrsa iwjh gks xbZA**
31. It is, therefore, clear that the defendant Shri R. K. Pandey is no longer using the house in suit for residential purposes since he shifted to his new house and this position was not disputed before us. The main contention of the defendant, however, is that the house in suit is still in his occupation for office purposes. His plea in this connection as stated in paragraph 1 (m) of the written statement is as under:
'The defendant and his brother Shri B. K. Pandey are practising jointly. They have two joint offices for the profession--one in the suit house where old clients of the defendant still come. Shri B. K. Pandey is residing on the first floor of the suit house; whereas the ground floor is mainly used for office purposes.'
Amplifying this plea in paragraph 71 of his deposition Shri R. K. Pandey stated that he occasionally visits the old office which is located in the suit house to trace out old references although Shri B. K. Pandey regularly sits in the office and some of his books are also lying in the office.
32. From the aforesaid evidence it is clear that the defendant Shri R. K. Pandey, when he shifted to his new house, did not retain any control over the residential portion of the house in suit; nor had he intention to use it in future. Thus both the animus and corpus, so far as the residential portion of house is concerned, were absent and the defendant must be deemed to have parted with possession thereof.
33. As regards the portion of the house used for office purposes, it is an admitted position that the defendant has his independent office in his new house and there is nothing to suggest that he intends to use the office portion of the house in suit in future as his own office. His interest in the office portion of the house in suit is extremely limited and in view of the fact that Shri B. K. Pandey is his younger brother and is being helped and supported by him in the profession, his casual visits to the office can hardly amount to possession of the portion in which it is located. It was, therefore, rightly held by the Courts below that Shri R. K. Pandey had parted with possession of the house in suit and this finding was also affirmed by the learned Single Judge vide paragraph 8 of his judgment.
34. It has been urged on behalf of the defendant-respondent that therecan be no parting with possession if there is anything in the nature of a concurrent user and in this connection reliance was placed on the English decision in Stening v. Abrahams, (1931) 1 Ch 470. It was held in that case that if there is anything in the nature of a right to concurrent user there is no parting with possession. An occasional use for a limited purpose can hardly amount to concurrent user, particularly when the object of the user is just to help a struggling brother.
35. On behalf of the defendant, reliance was also placed on the decision of the Delhi High Court in Hazarilal v. Giani Ram, 1972 Ren CJ 41. In that case while construing Section 14(1), proviso (b) of the Delhi Rent Control Act, 1958, it was held that the mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of time would not amount to parting with possession so long as, during his absence, the tenant has a right to return to the premises and be in possession thereof. It was further held that the divestment or abandonment of the light to possession is necessary in order to invoke the clause of parting with possession. It is, no doubt true that absence of physical possession does not necessarily amount to parting with possession. Parting with possession implies abandonment of possession and this may be either express or implied by the conduct of the tenant himself.
36. We may here consider the case of a guest or licensee of the tenant. A licensee or a guest may be inducted into the accommodation in two ways : either as a concurrent or limited user of the accommodation without there being any parting with the possession by the tenant, or as an exclusive user for indefinite period coupled with parting with the possession by the tenant. In cases of the former type, Clause (b) of Sub-section (1) of Section 12 of the Act would not be attracted because there is no parting with possession; but in cases of the latter type, the position would be different.
37. It appears to us from the evidence on record that the defendant had clearly parted with the possession of the accommodation in suit in favour of his brother Shri B. K. Pandey. Even if it be assumed that in view of the casual and limited user by Shri R. K. Pandey of the office located in the house in suit there was no parting with possession of the portion of the accommodation used for office purposes, there can be no doubt that there has been parting with possession at least so far as the residential part of the house is concerned.
38. It may here be pointed out that under Clause (b) of Sub-section (1)of Section 12 of the Act it is not necessary that the parting with possession must be in respect of the whole of the accommodation; it may even be of a part of the accommodation.
39. In the instant case, although the pleadings are not very clear, the Additional District Judge came to the conclusion that the house in suit was let out for residential as well as non-residential purposes. From the evidence of Shri R. K. Pandey it would appear that the ground floor was used for office purposes and the first floor was used for residential purposes. As we have already pointed out, it is clear from the testimony of Shri R. K. Pandey himself that since he has shifted to his new house, he is not at all, in any way, using the house in suit for residential purposes nor has he any intention of so using it even in future. It is thus clear that he has wholly withdrawn himself from the residential portion of the house and as such parted with possession of the residential portion of the house in suit,
40. We, therefore, hold that there has been parting with possession by Shri R. K. Pandey at least in respect of the residential portion of the house in suit within the meaning of Clause (b) of Sub-section (1) of Section 12 of the Act.
41. The learned Single Judge, however, held that since it has not been proved that the parting with possession was unlawful, the plaintiff-appellant is not entitled to claim eviction of the defendant on the ground specified in Clause (b) of Sub-section (1) of Section 12 of the Act. After referring to the provisions of Sections 12, 14 and 43 of the Act, the learned Judge observed as under in paragraph 10 of the judgment:
'A reading of these provisions will show that Section 14 (1) only prohibits sub-letting and transferring or assigning by the tenant of his rights in the tenancy without the previous written consent of the Landlord. The section does not prohibit mere parting with possession even if it be without the written consent of the landlord. Although unlawful parting with possession is made a ground under Section 12 (1) (b) in addition to sub-letting and assignment, the draftsman forgot to include the act of parting with possession while drafting Section 14 (1). Further, the language of Section 43 (3) wrongly assumes that Section 12 (1) (b) itself prohibits sub-letting, assignment and parting with possession of the whole or any part of the accommodation. The prohibition is really contained in Section 14 (1) and acts in contravention of that provision should have been made punishable under Section 43 (3) and not acts in a contravention of Section 12 (1) (b). Thus, the position is that the Legislature very likely intended to prohibit parting with possession by the tenant of the whole or any part of the accommodation like acts of sub-letting and assignment, but the drafting errors have deprived the legislature of expressing that intention. This lacuna cannot be filled in by construction. The result, therefore is that although the defendant has parted with possession of the whole of the suit house in favour of Shri B. K. Pandey this parting with possession is not in contravention of any law and is not unlawful.'
42. If we carefully examine the language of Section 12 (1) (b), Section 14 and Section 43 (3) of the Act, it would appear that on account of certain drafting errors the legislative intent has not been properly expressed. From Clause (b) of Sub-section (1) of Section 12 it is clear that unlawful parting with possession has also been made a ground for eviction. It was, therefore, necessary to specify in the Act in what cases parting with possession shall be deemed to be unlawful. So far as parting with possession in the case of sub-letting or assignment is concerned, the necessary provision is contained in Sub-section (1) of Section 14 of the Act. The said sub-section prohibits sub-letting as well as transfer or assignment of rights in the tenancy without the consent of the landlord. It was necessary for the draftsman to add a Clause (c) to the said sub-section in respect of otherwise parting with possession in the following terms :
'or otherwise part with possession of the whole or any part of the accommodation held by him as a tenant.'
This omission is unfortunate and has given rise to the difficulty in construing the aforesaid provisions.
43. We may now turn to Section 43 (3) which reads as under :
'If any tenant sub-lets, assigns or otherwise parts with the possession of the whole or part of any accommodation in contravention of the provisions of Clause (b) of Sub-section (1) of Section 12, he shall be punishable with fine which may extend to one thousand rupees.'
As rightly pointed out by the learned Single Judge, the aforesaid sub-section wrongly assumes that Section 12 (1) (b) itself prohibits sub-letting, assignment and parting with possession. The prohibition is really contained in Section 14; but it is restricted to sub-letting and transfer or assignment of rights in the tenancy. It does not expressly cover parting with possession in any other manner.
44. From Clause (b) of Sub-section (1) of Section 12 it is clear that apart from unlawful sub-letting and assignment, parting with possession otherwiseis also a ground for eviction provided it is unlawful. It is, however, difficult to make out when parting with possession not under a sub-lease or assignment may be adjudged to be unlawful within the meaning of the aforesaid clause. The learned Single Judge realised this difficulty as would appear from the observations in paragraph 10 of his judgment He, however, did not consider it necessary to resolve it. Unless this difficulty is resolved: it would not be possible to give effect to the provision relating to parting with possession in Clause (b) of Sub-section (1) of Section 1:2 and the said provision may be rendered nugatory.
45. Similarly, if we construe Sub-section (3) of Section 43 in isolation, as it stands, it would also be rendered completely nugatory because Clause (b) of Sub-section (1) of Section 12 does not prohibit sub-letting, assignment or otherwise parting with possession and, therefore, there can be no question of contravention thereof.
46. Even though the legislative intent has not been properly expressed on account of the drafting errors referred to above, it requires anxious consideration whether we are compelled to take the view adopted by the learned Single Judge.
47. It is no doubt, true that, as a rule, a Court of law is not authorised to supply a casus omissus or to alter the language of a statute for the purpose of supplying a meaning if the language used in the statute is not capable of one; but where the meaning and purpose of the statute ere clear, the Court need not feel helpless in giving effect to them merely because there is an error or omission here or there. We may here quote the following observations of Tindal, C. J. in Everett v. Wells, (1841) 2 M & G 269 at p. 277 :
'It is our duty neither to add to nor take from a statute, unless we see good grounds for thinking that the legislature intended something which it has failed precisely to express.'
48. It is also a cardinal principle of interpretation of statutes that a statute should not be so construed as to render, as far as possible, any part of it redundant or nugatory.
49. In Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh, AIR 1953 SC 394 their Lordships made the following observations regarding construction -of statutes which are pertinent :
'It is incumbent on the Court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application.'
50. In J. K. C. S. & W. Mills v. State of U. P., AIR 1961 SC 1170 their Lordships made the following pertinent observations regarding construction o statutes :
'In the interpretation of statutes the Courts always presume that the legislature inserted every pan thereof for a purpose and the legislative intention is that every part of the statute should have effect,'
51. In Maxwell on 'The Interpretation of Statutes'. Twelfth Edition, at p. 43, the following rule of construction of statutes has been referred to as the golden rule :
'It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnancy, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.'
52. In the light of the aforesaid principles, we propose to consider whether it is possible to construe the provisions of Clause (b) of Sub-section (1) of Section 12 and Sub-section (3) of Section 43 of the Act in a manner so that no part thereof is rendered surplus or nugatory.
53. It would, in this connection, be pertinent to take into account the scheme and object of the Act. The Act has been enacted for the protection of tenants; but this protection is of a personal character and for a limited purpose. It was not intended to extend the benefit of the Act to tenants who abandoned possession of the accommodation or parted with possession to sub-lessees or assignees or otherwise without the consent of the landlord.
54. From the language of Clause (b) of Sub-section (1) of Section 12 of the Act it is clear that parting with possession by a tenant in any manner other than sub-letting or assignment also furnishes a ground for eviction where it is unlawful. Sub-section (3) of Section 43 makes it punishable for the tenant to sub-let, assign or otherwise part with possession of the whole or part of any accommodation in contravention of the provisions of Clause (b) of Sub-section (1) of Section 12 of the Act. It is, no doubt, true that Section 12 does not prohibit sub-letting, assignment or otherwise parting with possession; but it uses the word 'unlawful' and it must be read with Section 14 so far as sub-letting and assignment are concerned. Section 14 makes a sub-lease or assignment unlawful whereit is without the consent of the landlord. Thus, in the context of sub-lease or assignment, the expression 'in contravention of the provisions of Clause (b) of Sub-section (1) of Section 12' occurring in Sub-section (3) of Section 43 must be read as meaning 'without the consent of the landlord; and if this expression is to be construed in this manner in relation to subletting and assignment, it would be proper to assign the same meaning to it in relation to 'otherwise parting with possession'. It would, therefore, appear that Sub-section (3) of Section 43 makes it punishable for a tenant to sub-let, assign or otherwise part with possession of the whole or any part of the accommodation without the consent of the landlord From the language of this sub-section it is clear that it treats all the three acts of the tenant, viz., sub-letting, assignment, and otherwise parting with possession, alike. Therefore, on a proper construction thereof, when read with Clause (b) of Sub-section (1) of Section 12 and Section 14, it would appear that all these three acts are unlawful when committed without the previous consent in writing of the landlord.
55. In this case, it is clear that Shri R. K. Pandey parted with possession without the previous consent in writing of the landlord. We, therefore, hold that the parting with possession was unlawful within the meaning of Clause (b) of Sub-section (1) of Section 12 of the Act and as such the defendant is liable to be evicted on this ground.
56. We may here briefly refer to the arguments advanced by Shri R. S. Dabir in this connection. He urged that the word 'otherwise' occurring immediately before the expression 'parted with possession' should be construed liberally in its widest sense so as to include all types of 'parting with possession' whether lawful or unlawful and, therefore, it is not necessary for this Court to go into the question whether parting with possession was lawful or unlawful. In support of this contention he relied on the decision in Smt. Lila Vati Bai v. State of Bombay, AIR 1957 SC 521 and the observations of this Court in paragraph 9 of the judgment in Shikherchand v. Mst. Bari Bai, 1974 MPLJ 126 = (AIR 1974 Madh Pra 75). We are, however, not impressed by this contention. It appears to us from the language of Clause (b) Sub-section (1) of Section 12 that even if the word 'otherwise' is widely construed, it would merely cover all other cases of parting with possession which are not under a sub-lease or assignment The question whether the parting with possession in a particular case is unlawful or not must be determined independently.
57. The plaintiff-appellant also claimed eviction on ground specified in Clause (a) of Sub-section (1) of Section 12 of the Act, The material facts in this connection are that the plaintiff-appellant had purchased the house in suit by a registered sale-deed dated 14-6-72. On the date of the sale the defendant was in arrears of rent from 1-2-1972 and the vendor assigned the entire arrears of rent also to the plaintiff by the said sale-deed. The plaintiff served the defendant with a notice to pay the arrears dated 11-7-1972 which was served on or before 14-7-1972. Thereafter, she served another notice dated 9-8-1972. This was served on the defendant personally on 14-8-1972. Arrears of rent were claimed in this notice as well. In spite of the said notices, the defendant neither paid nor tendered the whole or even part of the arrears of rent till December, 1972. It appears that the defendant, after service of the summons of the suit on him, deposited all arrears of rent due from 14th June, 1972 but did not deposit the rent due from 1st to 13th June, 1972. The point for consideration, therefore, is whether, in these circumstances, the defendant can be said to have complied with Section 13 (1) of the Act.
58. In N. K. Kame v. Biharilal. 1968 MPLJ 276 it was held by a Division Bench of this Court that under Section 13 (1) of the Act the tenant is not required to deposit arrears of rent due to the vendor and assigned to the vendee. In view of this decision, it was frankly conceded by the learned counsel for the plaintiff-appellant that the defendant was not obliged to deposit the arrears of rent due in respect of the period upto 31st of May, 1972; but he urged that the position in respect of rent for the period from 1st June to 13th June was different and there appears to be much force in this contention. As rightly observed by the learned Single Judge in paragraph 12 of his judgment, the rent for the month of June 1972 was payable by the defendant on the 1st day of July 1972. The transfer took place on 14th June 1972 and, therefore, the defendant was liable to pay the rent for the whole of the month of June 1972 to the plaintiff.
59. Under Section 8 of the Transfer of Property Act, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property including the rent and profits thereof accruing after the transfer. It is thus clear that under this section the plaintiff was entitled to recover the rent for the entire month of June 1972 which fell due on the 1st day of July 1972, even in the absence of any assignment of arrears. Noexpress transfer of this right was necessary. Section 36 of the Transfer of Property Act provides for apportionment between the transferor and the transferee of periodical payments in the nature of rents, annuities, pensions, dividends etc. This provision is also subject to a contract or local usage to the contrary. Thus it would appear that in the absence of a contract to the contrary the vendor would have been entitled to rent for the period upto the 13th June, while the plaintiff would be entitled to rent from the 14th June till the end of the month. What is, however, pertinent to note is that this section is applicable only as between the transferor and the transferee. It does not affect the liability of the tenant which must be determined independent of it. Since the rent for the entire month of June fell due on the 1st of July, the tenant was liable to pay the rent for the whole month to the plaintiff even though the vendor may be entitled to claim apportionment under Section 36 of the Transfer of Property Act from the plaintiff.
60. Rent for the month of June, 1972 being payable on 1st of July, could not be split up treating the rent for the period from 1st of June to 13th June as arrears due to the vendor and the rent for the period from 14th June, 1972 to 30th June, 1972 as arrears due to the plaintiff. Rent for the entire month must be treated as arrears due to the plaintiff within the meaning of Clause (a) of Sub-section (1) of Section 12 of the Act and the defendant was bound to deposit the same under Sub-section (1) of Section 13 of the Act, He having failed to do so, it must be held that he failed to comply with the requirements of Sub-section (1) of Section 13 of the Act and is as such not entitled to the benefit of Sub-section (3) of Section 12 or Sub-section (5) of Section 13 of the Act The defendant is, therefore, liable to be evicted on the ground specified in Clause (a) of Sub-section (1) of Section 12 of the Act.
61. As regards the grounds specified in Clause (i) of Sub-section (1) of Section 12 of the Act, the learned Single Judge has held agreeing with the first Appellate Court that the said clause has no application because the house was let out for residential as well as non-residential purposes. In support of his conclusion the learned Judge relied on the decisions of the Supreme Court in Dr. Gopaldas Verma v. Dr. S. K. Bharadwai, AIR 1963 SC 337 and S. Kartar Singh v. Chamanlal, AIR 1969 SC 13S8. The view taken by the learned Judge appears to be correct and was in fact not challenged before us,
62. Since we have held that the defendant is liable to be evicted on the grounds specified in Clauses (a) and (b) of Sub-section (1) of Section 12 of the Act, this appeal must be allowed.
63. The appeal is, therefore, hereby allowed and the cross-objection is dismissed. The decree of the first appellate Court is hereby fully restored including the decree for ejectment. In view of the partial success of the parties in this Court, it is hereby directed that the parties shall bear their own costs of this appeal and the cross-objection. The costs in the first two Courts shall be as directed by the first Appellate Court.