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Shyamlal Lachman Vs. Umacharan Ramdulare Tiwari - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 33 of 1959
Judge
Reported inAIR1961MP49
ActsMadhya Pradesh Accommodation Control Act, 1955 - Sections 3, 4 and 17
AppellantShyamlal Lachman
RespondentUmacharan Ramdulare Tiwari
Appellant AdvocateJ.V. Jakatdar, Adv.
Respondent AdvocateR.K. Pandey, Adv.
Cases ReferredBrigadier K.K. Verma v. Union of India
Excerpt:
- - they went on to say that it would be unsafe to go much farther and to give the benefit of the extended definition to an ex-tenant who had even before the commencement of the act become a trespasser or tenant at sufferance. the learned judges in bankelal's case, 1959 mp lj 589 (supra), have not indicated why it would be unsafe to give the benefit of the extended definition of the word 'tenant' un-less it be that the interest of the landlords would suffer. the defendant failed to comply. 23 of 1955 was extended to all regions of madhya pradesh from january 1, 1959, and is now called the madhya pradesh accommodation control act of 1955 (hereinafter called the 1955 act) by virtue of the madhya pradesh extension of laws act no, 23 of 1958. section 4 of the 1955 act prohibits institution.....dixit, c.j. 1. this reference arises out of second appeal no. 33 of 1959. the questions that arise for determination in this reference lie within a very narrow compass. they are: whether in a suit pending on the date of commencement of the madhya pradesh accommodation control act, 1955, a decree for eviction can be passed except on one or more of the grounds mentioned in section 4(2) of the act; whether a decree for eviction obtained before 1st january, 1959 can be executed against a tenant so long as the act is in force except on any of the grounds mentioned in section 4; and whether a person whose tenancy has come to an end before the commencement of the act is a tenant for the purposes of the act and can claim the protection given under the act. as the question whether a person whose.....
Judgment:

Dixit, C.J.

1. This reference arises out of second appeal No. 33 of 1959. The questions that arise for determination in this reference lie within a very narrow compass. They are: whether in a suit pending on the date of commencement of the Madhya Pradesh Accommodation Control Act, 1955, a decree for eviction can be passed except on one or more of the grounds mentioned in Section 4(2) of the Act; whether a decree for eviction obtained before 1st January, 1959 can be executed against a tenant so long as the Act is in force except on any of the grounds mentioned in Section 4; and whether a person whose tenancy has come to an end before the commencement of the Act is a tenant for the purposes of the Act and can claim the protection given under the Act. As the question whether a person whose tenancy has been determined is a tenant within the meaning of the Act, has been decided directly by a Division Bench of this Court in Bankelal v. Sant Sharan, 1959 MP LJ 589, and the correctness of that decision was doubted, this reference was directed to be laid before a Full Bench.

2. So far as the question about the applicability of the Act to pending suits for eviction is concerned, that has been considered by a Division Bench of this Court in Miss Jarbai v. Phiroj-sha, Second Appeal No. 255 of 1957, where it has been held that in all pending suits or appeals for eviction no decree for eviction can be passed except on one or more of the grounds mentioned in Section 4 of the Act and that a decree obtained before 1st January 1959 cannot be executed against the tenant so long as the Act is in force, except on one or more of the grounds stated in Section 4. Nothing more, therefore, need be said on that point.

3. In regard to the other point, in 1959 MP LJ 589 (supra), it has been held that Section 17 cannot be applied, to pending suits inasmuch as a person whose tenancy has come to an end before the commencement of the Act is not a tenant for the purposes of the Act. This question was the subject-matter of the decision in Bhagwandas v. Ram-chandra, Madh B LJ 1954 HCR 616 (FB), where the view was taken that a person continuing in possession after the termination of his tenancy by effluxion of time or by the act of the landlord or by his own act or default, is a tenant within the meaning of the word 'tenant' as defined and within the clear intention of the Legislature which enacted the definition of the word 'tenant' in the Act.

The learned Judges of the Division Bench who decided the case of Bankelal, 1959 MP LJ! 589 (supra), observed that the decision in the case of Madh B LJ 1954 HCR 616 (FB) (supra), was not binding on them. They were not impressed by the reasoning given in that decision. Notwithstanding all what the learned Judges deciding the case of Bankelal, 1959 MP LJ 589 (supra), have said, I do not find myself in agreement with the view they have taken. It is not necessary for me to repeat what I have said in the case of Bhagwandas, Madh B LJ 1954 HCR ?16 (FB) (supra), to support my conclusion that a person whose tenancy has been determined isa tenant within the definition of the word 'tenant' given in the Act and for the purposes of the Act.

4. The question has to be decided with reference to the definition of the word 'tenant' given in the Act and to the provisions of Sections 16) and 17 of the Act. In both these sections the word 'tenant' has been used. In Bankelal's case, 1959 MP LJ 589 (supra), it was recognised that a person whose tenancy had come to an end before the commencement of the Act was not a tenant within the meaning of the Act. It was, however, held that a person whose tenancy had come to an end before the commencement of the Act was not a tenant for the purposes of the-Act.

No reason has been given for this distinction. Support for this proposition was sought to be found in the decision of the Privy Council in Karnani Industrial Bank Ltd. v. Satya Niranjan, AIR 1928 PC 227. But the Privy Council made no such distinction. On the other hand, their Lordships of the Privy Council observed that the material section of the Act before them was intended to give relief to any person who, having been a tenant, came within the period of limitation to assert his claim to recover excessive rent paid, whether at the time he claimed he was actually a tenant Or not.

The learned Judges in Bankelal's case, 1959? MP LJ 589 (supra), distinguished the decision of the Privy Council by saying that the Calcutta Rent Act was made to give protection to an ex-tenant, who but for its operation would have become a trespasser or a tenant by sufferance. They went on to say that it would be unsafe to go much farther and to give the benefit of the extended definition to an ex-tenant who had even before the commencement of the Act become a trespasser or tenant at sufferance.

The present Act is also intended to give benefit to the tenants and if a person whose tenancy has been determined does not come within the definition of the term 'tenant', it is difficult to see for whose benefit the Act of 1955 has been enacted. The learned Judges in Bankelal's case, 1959 MP LJ 589 (supra), have not indicated why it would be unsafe to give the benefit of the extended definition of the word 'tenant' un-less it be that the interest of the landlords would suffer. But if the provisions of Sections 4, 16 and 17 are very clear, then the considerations of hardship and inconvenience either to the tenant or to the landlord cannot be taken into account for putting a narrow construction on the meaning of the word 'tenant'.

5. In Bankelal's case, 1959 MP LJ 589 (supra), the significance of Sections 16 and 17 was altogether overlooked. Section 16 says that no decree for the eviction of a tenant from any accommodation passed before the date of commencement of the Act shall be executed against him so long as the Act is in force except on any of the grounds mentioned in Section 4. Section 17 deals with pending suits for eviction and provides that in all suits for eviction of tenants pending on the date of commencement of the Act no decree for eviction shall be passed excepton one or more of the grounds stated in Section 4. Now a person against whom a decree for eviction has been passed before the commencement of the Act would necessarily be a person whose tenancy has been determined.

A suit for eviction cannot succeed unless it is established that the tenancy has been determined by law. If, therefore, the view that the word 'tenant' does not include a person in whose favour there is no subsisting tenancy on the date of the commencement of the Act, is accepted, then Sections 16 and 17 are rendered altogether nugatory. The narrow construction, therefore, put on the word 'tenant' in Bankelal's case, 1959 MP LJ 589 (supra), cannot be accepted. It may be mentioned that the reasoning given in the order of reference in the case of Bhagwandas, Madh B LJ 1954 HCR 616 (FB) (supra), which the learned Judges who decided the case of Bankelal, 1959 MP LJ 589 (supra), did not regard as sound, was followed by this Court in Ramrao v. Shivgovind, 1958 MPC 210: (AIR 1958 Madh Pra 41).

6. For all these reasons, I adhere to the view expressed in the case of Bhagwandas, Madh B LJ 1954 HCR 616 (FB) (supra), and I hold that a person whose tenancy has been determined but who continues to remain in possession of the tenanted premises without the assent of the landlord after the determination of the tenancy, is a tenant for the purposes of the Act and is entitled to the benefit of Sections 4 and 17 of the M. P. Accommodation Control Act, 1955.

Shiv Dayal, J.

7. This reference arises out of a suit for eviction of a house situated in Raipur (Mahakoshal region) where the C. P. and Berar Letting of Houses and Rent Control Order, 1949, was in force, when the suit was instituted. It appears that the plaintiff's case was that the defendant fell in arrears of rent since March, 1952 and, after obtaining permission of the Rent Controller on 5-2-1954, the plaintiff issued two notices to the defendant on 15-6-1956, and July 10, 3956, demanding arrears of rent and determining the tenancy. The defendant failed to comply. A decree for arrears of rent and damages was also claimed.

The defendant resisted the suit inter alia on the ground that he did not know who the owner of the suit house was, that the house had been let out to him by one Awasthi, a relation of the plaintiff, and since the defendant did not receive any intimation of the order of the Rent Controller the same was not conclusive and final. The trial Judge passed a decree in favour of the plaintiff for ejectment as also for arrears of rent and damages. It was affirmed by the first appellate Court by its judgment and decree dated 2-1-1359. The defendant preferred a second appeal to this Court.

8. In the meantime the Madhya Bharat Accommodation Control Act No. 23 of 1955 was extended to all regions of Madhya Pradesh from January 1, 1959, and is now called the Madhya Pradesh Accommodation Control Act of 1955 (hereinafter called the 1955 Act) by virtue of the Madhya Pradesh Extension of Laws Act No, 23 of 1958. Section 4 of the 1955 Act prohibits institution of a suit for ejectment of a tenant butrelaxes the restraint in certain exceptional circumstances. Even for a pending suit it is provided in Section 17 of the 1955 Act that a decree for eviction shall not be passed except on One or more of the grounds mentioned in Section 4 of that Act,

9. When my learned brother Tare, J. heard this second appeal a question arose whether in, view of Sections 4 and 17 of The 1955 Act a decree under appeal could be upheld, in the memorandum of second appeal the defendant reiterated that the plaintiff was not the landlord and that the Rent Controller's permission did not subsist when the eviction notices were issued by the plaintiff, accepting the appellant as his tenant. It seems that the maintainability of the suit in view of the subsequent legislation was questioned before the learned single Judge.

Whether the defendant was a 'tenant' within the meaning of the Act, his tenancy having been determined long before the 1958 Act appeared, was the question on which he found two conflicting decisions in Madh B LJ 1954 HCR 616 (FB) and 1959 MP LJ 589. Having regard to the importance of the question, the case was referred for constituting a larger Bench 'to consider the applicability of Section 17 of the Madhya Pradesh Accommodation Control Act, 1955 (No. 23 of 1955)'. This Bench was accordingly formed. I would formulate the question for determination in these words:

'Whether the provisions contained in Sections 4 and 17 of the M. P. Accommodation Control Act, No. 23 of 1955 apply to the case of a tenant whose tenancy had been determined before the Accommodation Control Act was extended to the place where the suit accommodation is situate?''

10. The protection afforded in Sections 4 and 17 is to a 'tenant'. In the strict legal sense of the term, a tenant is one whose tenancy subsists. In common parlance, however, a tenant who continues to occupy a tenanted premises in spite of the determination of the lease, is also called a tenant. It is then to be seen whether it was its strict meaning or popular meaning which was intended by the legislature when they used the term 'tenant' in those sections. Section 4 opens thus:

'No suit shall be filed in any Civil Court) against a tenant for his eviction from any accommodation except on one or more of the following grounds..........'

And in Clauses (a) to (n) those exceptional ground are enumerated. There can be no doubt that Section 4 is not an enabling provision in the sense that a tenant can be ejected even without determining the lease. It is primarily a disabling provision, although in the circumstances provided in Clauses (a) to (n) the protection given to the tenant is withdrawn. To put it differently, this section imposes a restriction on the right of the landlord to eject his tenant, over and above those provided in the Transfer of Property Act. The section does not confer any new benefit on the landlord, nor does it enlarge his rights under the Transfer of Property Act.

These exceptional grounds for ejectment do not curb the rights of the tenant under the Transfer of Property Act, nor do they furnish any additional grounds for his eviction. Apart from theright of the tenant to occupy the leased premises as provided in the Transfer of Property Act, Sections 4 and 17 of the 1955 Act give him a further protection against being ejected and furnish to him new grounds of defence. It is only when the lease is determined in one of the modes provided in Section 111 of the T. P. Act that the lessee is bound to put the lessor into possession of the property (Section 108(q) of the T. P. Act).

On this reasoning no suit can be instituted for eviction of a tenant unless the lease is determined. (See Chhotey Lal v. Abdulla Bhai, AIR 11952 Madh B 121). And if, after the determination of the lease, S, 4 does not come into play because the 'tenant' is now an 'ex-tenant', for whose benefit was the section made? Where a landlord, for instance, terminates the lease under Section 111(g) of the T. P. Act, because of default in payment of rent, and then brings a suit for eviction, it cannot be legitimately urged that Clause (a) of Section 4 will not apply just because the lease has been determined.

If the tenant pays rent within one month of the notice of demand, he gets the protection of Section 4(a) in spite of the fact that he was in arrears of rent, and the landlord had elected to exercise his right of forfeiture by a notice determining the lease. To construe otherwise will defeat the very object of the section because then a landlord can always circumvent the provisions of Section 4 by giving a notice to the tenant, determining the lease, before he sues for eviction. If the defendant is told that Section 4 does not apply to him because he is only an 'ex-tenant', but not a tenant', the law will be rendered nugatory.

11. Section 17 further strengthens the interpretation of the word 'tenant' as to include an ex-tenant. It reads thus:

'17. In all suits for eviction of tenants from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 4 of this Act.'

The clear language of Section 17 presupposes that in a suit which was pending on the day when the 11955 Act came into Operation the lease must have been determined BEFORE the commencement of 1he Act, for the suit for eviction must have been brought after determining the lease. If 'tenant' means only a tenant whose tenancy is subsisting, it is difficult to see for whose benefit Section 17 was enacted. Retrospectively (sic) of Section 17 makes it quite plain that its protection cannot; be denied to a tenant whose lease was determined before the commencement of the 1955 Act.

12. If it is argued for a moment that determination of the lease is not necessary to bring a suit under S, 4 and that both Section 4 and Section 17 apply to the case of a tenant whose tenancy has not come to an end or, at the most, they apply to a tenant whose lease is determined after the commencement of the Act, Section 16 of the Act presents an insurmountable difficulty. It provides that:

'No decree for the eviction of a tenant from any accommodation, passed before the date of commencement of this Act shall, in so far as it relates to the eviction of such tenant, be executed against him so long as this Act remains inforce, except on any of the grounds mentioned in Section 4:

Provided that the tenant pays to the landlord the rent payable under the decree.'

Now, it is not possible to hold that a tenant against whom a decree had been passed before the 1955 Act came into force was still a tenant in the strict legal sense on the day of its commencement. He may have continued his possession, but such continuance ceased to be lawful because of, and from the date of, the decree. It will be a contradiction in terms to say that for the application of Section 16 of the 1955 Act a judgment-debtor tenant must be one whose lease subsists or at least subsisted on the day of the commencement of the Act. If then the word 'tenant' in Section 16 necessarily means one whose tenancy was terminated before the appearance of the 1955 Act, I am bound to hold that in Sections 4 and 17 the word 'tenant' does include an ex-tenant.

13. It transpires from the scheme of the Act that the legislature in their anxiety to protect the tenant and prevent his eviction, irrespective of the stage of the litigation, enacted:

(i) Section 4, which prevents institution of a suit after the Act came into force.

(ii) Section 17, which is a bar to the continuance of a suit instituted before the Act came into force but pending on the date of the commencement of the Act; and

(iii) Section 16, which prohibits execution of a decree for eviction passed before the commencement of the Act.

In other words, all the possible stages have been covered by these three sections and a tenant, who, in the words of Lord Coke, entereth by a lawful lease and holdeth over by a wrong cannot be ejected in any case except on one or more of the grounds contained in Clauses (a) to (n) of Section 4. Every possible doubt is thus removed by Section 16. These provisions are not only consonant with but give the fullest effect to the object of the Act as stated in the preamble:

''An Act to provide for the control of letting and rent of residential and non-residential accommodation and for prevention of the eviction of tenants therefrom.'

Now it is an accepted principle of interpretation of statutes that the Court must favour a harmonious construction. In Kesavan Sadasivan v. Kesavan Sivanandan, (S) AIR 1956 Trav-Co 167 (FB), it is observed:

'In enacting a law the Legislature must be taken to have intended that the different sections of the same statute should have their due force and significance. It will not be fair to the Legislature to construe a particular section in such a way as to take away the effect or to be in conflict with an earlier section in the same statute, Both the sections must, if possible, be so construed as to avoid any possible conflict or inconsistency.'

It is held in AIR 1960 All 214:

'An interpretation, which results in anomalies, should be avoided unless the text is susceptible of that interpretation alone. Where the text is clear and the anomalous interpretation is irresistible, the Court has to accept it leaving it tothe Legislature to remove the anomalies, But what may apparently be clear and compelling may not appear to be so on a closer and more careful scrutiny in the light of the 'scheme and context' of the enactment sought to be interpreted.' (Underlining ( here into ' ') by me).

14. It is true that in tie definition of the word 'tenant' in Section 3(f) of the 1955 Act an ex-tenant has not been included in terms. But the definition cannot override express provisions and explicit intent of the sections. Moreover, it is not exhaustive as indicated by the words 'unless there is anything repugnant in the subject or context'. Chakravarti, C. J., observed in S.K. Dutt v. Anglo India Jute Mills Co., Ltd., (S) AIR 1957 Cal 514:

'The qualifying words, namely, 'unless there is something repugnant in the subject or context' occurring usually in a definition clause of an Act embody only a rule of construction which is of general application and does not require to be specifically mentioned in a statute in order to be applied in the construction of definitions provided by it. Thus, even though those words are absent from Section 4-A still their absence in the definitions, given in Section 4-A, Income-tax Act, cannot itself debar the Court from reading a qualification, if the context so requires or even excluding the definition altogether, if in a certain case it is found to be repugnant to the context''.

It is stated in Crawford on Statutory Constructions (1940 Edn.) at pp. 363-364:

'Although the legislative definition may be of great assistance in clearly revealing the legislative meaning, it may also create considerable confusion. The definitive language may itself require construction. Its own language may be ambiguous. It may be clearly contradictory with the language of the statute proper. The statute may indicate that the legislative definition is inaccurate. .It is, therefore, obvious that before the legislative definition can be relied upon, its applicability as well as its reliability should be ascertained. And in this connection, one important situation should be mentioned. In the event that the definition found in the interpretation clause is at variance with the intention of the law-makers as expressed in the plain language of the statute, that intention must prevail over the legislative definition. In other words, the intent of the legislature must control the legislative definition. But the interpretation clause and the statute proper must all be construed together as a part of the same statute. Where this is done, if the definition laid down by the legislature does not conflict with the intent of the legislature, then the former may be given effect. If the two can be harmonised, there can be no objection to allowing the interpretation clause to control the language defined. To give the interpretation clause precedence where the two cannot be harmonised, would operate to make the ancillary portion of the statute superior to the primary portion. The statute's meaning would in all probability be distorted, and the legislative intent defeated.'

15. The word 'tenant' in Section 15(1) of the Calcutta Rent Act, 1920 was construed in 55 Ind App 344: (AIR 1928 PC 227). It was held:

'In order to give any working effect to the Act it is necessary that the words 'landlord and tenant' in Section 15(1) must include, as they often do in ordinary parlance, ex-landlord and ex-tenant.'

And their Lordships observed:

'This section is intended to give relief to any person who, having been a tenant, comes within the period of limitation to assert his claim to recover excessive rent paid, whether at the time he claimed he is actually a tenant or not. If it were otherwise, the exorbitant landlord who had succeeded in obtaining the excessive rent would relieve himself of his liability by determining the tenancy which in case of poor tenants holding on month's tenancy would easily be done.''

In Remon v. City of London Real Property Co, Ltd., 1921-1 KB 49, Scrutton L. J. observed:

'It is true that some of these persons would never previously have been called' 'tenants' by a lawyer. The nearest approach to them is tenant by sufferance .......I think it is clear, Parliament has intended to confirm these people in a statutory tenancy and to speak of their possession as a 'letting'.........I feel that I am straining the language in speaking of a person whose tenancy has expired, and who stays in against 'the active protest of the landlord, as a 'tenant', and of the landlord's relation to him as a 'letting', but such a person appears to be within the clear intention of the legislature.....'

Both the decisions cited above were relied on by Dixit J. (as my Lord then was) in the Order of Reference in the case of Madh B LJ 1954 HCR 616 (FB). The views expressed therein, having been accepted by Chaturvedi J., became the judgment) of the Full Bench. Shinde C. J. reached the same conclusion although on a different reasoning. In the Order of Reference it was laid down:

'A person who has been in possession under a lawful title as a tenant and who continues in possession against the will of the landlord after that title has been determined is a tenant for the purpose of section 4 of the Vidhan (M. B. Accommodation Control Act, 1950). It makes no difference whether the tenancy came to an end by effluxion of time or by act oE the landlord or by act or default of the tenant.'

I find myself in respectful agreement with this dictum. The above view is supported by a Full Bench decision of the Punjab High Court in Shyam Sunder v. Ramdas, AIR 1951 Punj 52 where it is held that the word tenant in section 9(1) of the Delhi and Ajmer Merwara Rent Control Act No. XIX of 1947 is not used in its strict legal sense, but in its popular sense including not only the current tenant but the ex-tenant remaining in occupation and that the definition of the word 'tenant' given in Section 2(d) of the Act does not govern section 9(1) of the Act.

16. In 1959 M. P. LJ 589 it is conceded that a tenant whose tenancy has been determined before the institution of the suit, but after the commencement of the Act is covered by the word 'tenant' in Section 12 of the Madhya Bharat Accommodation Control Act, 1950 (which is the same,verbatim, as Section 17 of the 1955 Act). But the Division Bench was not prepared to extend the protection to such a tenant if his tenancy had been determined before the Act came into force. The reason for the distinction was stated thus:

'On the date on which the ex-tenant becomes a trespasser or tenant by sufferance, there is a law in operation enabling him to continue in possession. The essential requirement is found only when he reaches this stage at any time after commencement Of the law. But if it was determined before its commencement, then at the time of the determination of his tenancy no statute would be operative to enable him to continue in possession, the dissent of the landlord notwithstanding.'

Now, the language of the Act does not make any such distinction. If it is a question of interpretation, such a distinction must be based on the intention of the Legislature to be deduced from the provisions of the Act. It seems vital to me that if a tenant at sufferance against whom a decree has been passed before the Act came into force is extended statutory protection in Section 16 of the 11955 Act, there is no reason why a tenant at sufferance, who became so before the Commencement of the Act but against whom a decree had not been passed should be excluded from the benefit, when section 17 affords him the same protection. A tenant at sufferance against whom a decree had been passed is no better, rather he is worse, than one against whom a suit was still pending on the date of the commencement of the Act.

And on a parity of reasoning, he is still worse than a tenant at sufferance against whom a suit has not been instituted before the commencement of the Act. It cannot be said of a tenant at sufferance against whom a suit was pending on the date of the commencement of the 1955 Act, that there is no statute which would operate to enable him to continue in possession, the dissent of the landlord notwithstanding; Section 17 explicitly affords protection to such a tenant. Who else is protected by the section? There is no question of a tenancy in the strict sense subsisting in such a case on the date of the commencement of the Act; the tenant must have necessarily been a tenant at sufferance before such date.

17. Strictly speaking a tenant is one, who entered as a tenant and in whose favour a subsisting lease exists. If he entered as a tenant but continues to stay in after the lease has come to an end, by efflux of time or otherwise, he is not a tenant in that strict sense of the word; he is known in law as a 'tenant holding over', provided his continuance is with the landlord's consent; otherwise, he is styled as a 'tenant at sufferance'. The term ''statutory tenant' is used for a tenant who is not a tenant in the strict sense, but whom the statute regards as a tenant for its purposes. Now, a tenant whose lease is subsisting and a tenant holding over are amply protected under the Transfer of Property Act. It is only a tenant at sufferance who has been protected by Section 4 of the 1955 Act. On the foregoing analysis the following categories of tenants at sufferance are protected thus:

(1) Whose tenancy came to an end after thecommencement of the Act, by section 4 of the Act, (accepted in Bankelal's case 1959 MP LJ 589);

(2) Whose tenancy came to an end and a decree for eviction had been passed before the commencement of the Act, by Section 16 of the Act;

(3) Whose tenancy came to an end and a suit had been instituted but decree had not been passed before the commencement of the Act, by Section 17 of the Act.

The only class of tenants at sufferance which remains to be considered is that of a tenant whose tenancy was determined but a suit had not been instituted before the commencement of the Act. In the absence of any provision to the contrary it cannot be argued on any rational basis that tenants at sufferance belonging to this class, who are better than the second and third categories, were intended by the framers of the law to be denied the protection of the Act. After all it is by fiction that 'the relation of landlord and tenant is imposed or continued by statute.' (23 Halsbury (Salmond) 409).

It is noteworthy that not only a tenant against whom a decree had been passed prior to the Act is protected by express words of Section 16, but also that the proviso to that section employs the words 'tenant' and 'rent' which can only have the popular meaning but not that strict legal connotation in which they are known in the law of transfer. An Act must be construed according to the intention of those who made it. In the present case that intention is manifest in the scheme and language of the enactment. This leads to the irresistible conclusion that Section 4 was intended to be wide enough to include the case of a tenant whose lease was determined but against whom a suit had not been instituted before the commencement of the Act.

To construe otherwise would put the section out of harmony with the Act as a whole. It is of no relevance how long before the commencement of the Act the tenancy had been determined or the suit had been instituted or the decree had been passed. The only condition is that he should be continuing his possession. A tenant, who does not vacate after his tenancy is determined is nob called a trespasser in the present civil law; that term being now restricted to one who enters without title and stays in without title. I can do no better than to quote here a passage from Mulla's Transfer of Property Act by the Hon'ble Mr. Justice S. E. Das (at page 599):--

'A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It therefore cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has determined, with the consent of the person entitled. The Madras High Court has observed that the fiction has no place after the enactment of the Transfer of Property Act. But the Act, as already observed, is not exhaustive; and the term is useful one to distinguish a possession rightful in its inception but wrongful in its continuance, from a trespass wrongful both in its inception and in its continuance.'

18. Shri Pandey, learned counsel for the landlord, strongly relied on Sudkya Ramji v. Mohd. Issak, AIR 1950 Bom 236. On a careful perusal ot the report I find that the decision is in no way helpful to the landlord in the present case. That was an execution matter and a decree had been passed before the relevant section 17 of the Bombay Act came into force. It was observed:

'If a person is a tenant, then it is obvious that he cannot possibly be evicted by any one. In the present case, the section is sought to be availed of by persons against whom an order and decree in ejectment had been passed. Such an order could not possibly have been passed against the person whose tenancy has not expired with the result that if we accept the contention that the word 'tenant' means a person in whose favour there is in existence a lease which has not expired then the section would be rendered nugatory. In our view, therefore, we would follow the well-established rule that in tenancy legislation, the word 'tenant' is Used sometimes to denote an ex-tenant who is given certain privileges.'

Yet the learned Judges could not give relief to the tenant because a decree had been passed and Section 17 was not retrospective in operation. Well-known principles that every statute must be taken to be prospective and that strong and distinct words are necessary to alter vested rights of either litigant, were applied. However, in that case difference was pointed out in the language of Section 17 and that of Section 5 which had not been extended to the area in which the suit property was situate. Section 5 gave a retrospective operation in express terms and it was observed:

'If it was the intention of the legislature when enacting Section 17 it was obvious that they would have used similar language.''

Now in the Act with which we are dealing retrospective operation is given in clear words of Sections 17 and 16.

19. There is no question of giving any 'double retrospective effect'. In the first place, it cannot be questioned that the Legislature had power to legislate with retrospective effect; secondly, retrospectivity lies in relation to the commencement of the tenancy, irrespective of when and how it is terminated. If the legislature has explicitly protected in Section 16 the continuance of the possession of the judgment-debtor treating as legal possession there can be no objection to the recognition of that privilege in the case of a tenant against whom a decree has not yet been passed, or against whom a suit has not yet been instituted although the tenancy has been determined.

20. I must now mention that the decision ot the Full Bench of the Madhya B-harat High Court in Bhagwandas's case, Madh B LJ 1954 HCR 616 was in a suit governed by the Madhya Bharat Accommodation Control Act No. 15 of 1950. In that Act sections 11 and 12 were exactly in the same words as sections 16 and 17 respectively of the 1955 Act. The Full Bench decision was reported in the year 1954. It was only subsequent to that decision that the M. B, legislature enacted the M. B. Accommodation Control Act, (No. 23 of 1955). The presumption is that the legislaturewas aware of the law that existed and the judicial interpretation which was given to section 12 in particular manner by no less an authority than a Full Bench of the High Court of that State. If Sections 11 and 12 of the 1950 Act were re-enacted and incorporated verbatim in the new M. B. Act of 1955, the presumption is that the legislature implied the word 'tenant' in Section 17 in the same sense and with the same meaning as that word 'tenant', used in Section 12 of the earlier Act, was construed by the High Court, it is observed in Crawford at page 308:

'The construction placed upon a statute by the courts becomes a part of the statute, and hence a part o the law thereby enacted. If the legislature, after ample opportunity to change a construction by the enactment of an amendment, fails to do so, it gives its approval of the construction placed on the enactment by the courts.'

And in Craies on Statute Law (fifth Edn.) at page 161 it is stated:

'If Acts of Parliament use forms of words which have received judicial construction, in the absence of anything in the Acts showing that the Legislature did not mean to use the words in the sense attributed to them, by the Courts, the presumption is that Parliament did so use them.' Cases cited in that connection are Barlow v. Teal, (1885) 15 QBD 403 at p. 405 and Dixon Ltd. v. Caledonion and Glasgow and South Western Ry. Cos., 1880-5 AC 820.

21. Shri Pandey relying on section 6 of the Madhya Pradesh Extension of Laws Act, No. 231 of 1958, urged that the present case must be governed by the law that was in force on the date of the institution of the suit that is to say the C. P. and Berar Letting of Houses and Rent Control Order, 1949. Section 6 provides that the corresponding laws of other regions shall stand repealed and the proviso runs thus:

'Provided that the repeal shall not affect

(a) xx xx xx xx

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed.

(c) xx xx xx xx

(d) xx xx xx xx

To me it appears clear that the section only meansthat simply because of the repeal anything whichwas done under the repealed Act and any right,privilege or obligation acquired, accrued or incurred shall not be affected. The repealing section cannot be read as providing that the provisions of the new Act shall not apply. Granting theargument of Shri Pandey it is to be seen what rightwas acquired by the landlord and what obligationwas incurred by the tenant. The C. P. Rent Control Order 1949 did not create any obligationagainst the tenant. Section 13 only created a barto the giving of notice determining the lease andto the determination of the lease without previouswritten permission of the Collector.

That section further indicated the conditions in which such permission could be granted. In the present case the plaintiff having obtained the permission of the Collector merely became entitled to give the tenant a notice of eviction. That was the only 'right' or 'privilege' that the plaintiff got 'under the repealed Control Order of 1949';nothing more than that. If on the repeal of the above 1949 order also that right or privilege of the landlord survives it is of no value because the 1955 Act requires no such permission. If the landlord, is happy with the permission he got from the Collector, nobody is depriving him of it. It cannot, therefore, be held that in spite of Section 17, a suit can proceed under the old law although there are no grounds under Section 4 of the New Act.

22. For all the reasons mentioned, the question formulated by me at the out-set must be answered in the affirmative.

23. At the hearing Shri Pandey made an endeavour to canvass before us that the plaint did contain certain grounds which fell properly within the purview of the exceptional grounds enumerated in section 4, for instance disclaimer. It was also contended that even if there were no such grounds an opportunity could be given to the plaintiff to amend the plaint. These are questions not to be considered by us in this reference. We leave them open to be urged when the matter is heard by a single Judge.

Golwalkar, J.

24. I have read with care the opinions of the Chief Justice and Shivdayal, J., and I am in entire agreement with the reasons which they have given for their respective opinions with which I concur. I do not, therefore, consider it necessary to state my reasons separately except to quote the views as under, expressed in the case of Brigadier K.K. Verma v. Union of India, AIR 1954 Bom 358, which fortify the views expressed by my brothers:

'But, in our opinion, the position in English law is unnecessary to be considered because, as we shall presently point out, the law in India is essentially different, and even assuming Mr. Desai fs right that under the English law on the facts of this case the tenant became a trespasser, the same position would not arise under the Indian law. Under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical and that possession is protected by statute. Under Section 9 of the Specific Relief Act, a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to Court under Section 9 and claim possession against the true owner.

Therefore, our law makes a clear and sharp distinction between a trespasser and an erstwhile tenant. Whereas the trespasser's possession is never juridical and never protected by law, the possession of an erstwhile tenant is juridical and is protected by law. Therefore, as far as the Indian law is concerned, an erstwhile tenant can never become a trespasser. It may or may not be that in English law in certain circumstances he can become a trespasser and it does seem that the landlord can enter the premises snd deprive the erstwhile tenant of his possession, but in India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment.'

25. In my view also a person whose tenancy has been determined but who continues to remain in possession of a tenanted premises without the consent of the landlord is entitled to the protection under the provisions of Sections 16 and 17 of the M. P. Accommodation Control Act of 1955 whether a decree for his ejectment has been passed or not.

BY COURT:

26. The reference is answered by saying thata person whose tenancy has been determined buttwho continues to remain in possession of the tenanted premises without the assent of the landlordafter the determination of the tenancy is a tenantfor the purposes of the Act and is entitled to thebenefit of Sections 4 and 17 of the M. P. Accommodation Control Act, 1955. The case is sent back tothe learned referring Judge for disposal.


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