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Raghu Nath Ray Vs. Nityananda Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 191 of 1953
Judge
Reported inAIR1956Ori175
ActsOrissa House Rent Control Act, 1947 - Sections 5 and 13; Orissa House Rent Control (Amendment) Act, 1951; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 7 - Order 41, Rule 33
AppellantRaghu Nath Ray
RespondentNityananda Sahu and ors.
Respondent AdvocateB. Das and ;N. Kukherji, Advs.
DispositionAppeal dismissed
Cases ReferredFirm Ladu Ram Sagarmal v. Jamuna Prasad
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........where the landlord wanted the house for his personal residence. whether in a particular case the landlord required the house bona fide for his residence, or not, was left to be determined by the collector who was empowered to give a certificate to that effect, before permitting the plaintiff to come to court. as this related to the mode and method in which he could approach the court, it was merely auxiliary to his right to institute a suit and did not touch his vested right as such. i would accordingly hold that the defendant acquired no vested right in the procedure created, by the house rent control act, except the bare protection against eviction in an arbitrary manner. that this is the correct principle has been recognised in numerous decisions of the different courts which i.....
Judgment:

Panigrahi, C.J.

1. This appeal raises a simple point of law which is covered by authority. The appellant was in occupation of a house belonging to the plaintiff, as a tenant paying a monthly rent of Rs. 30/-, The plaintiff obtained an order of exemption, as required under Section 5, Orissa House Rent Control Act, 1947 (Act 5 of 1947), and after serving a notice to quit Instituted a suit for ejectment and compensation.

The suit was dismissed on the ground that in, addition to the exemption order under Section 5 of the Act, an order under Section 13 permitting the plaintiff to sue was required before the plaintiff could institute the suit.

In arriving at this decision the Court relied on a decision of this Court, reported in Krishna Chandra v. Sushila Mitra, 1951 Orissa 105 (AIR V 38) (SB) (A). Admittedly, the plaintiff did not obtain permission to sue, as required under Section 13 of the Act. The plaintiff appealed to the District Judge. The appellate Court held that the provisions of Section 13 did not affect the substantive right of the plaintiff to recover possession of the house and that the requirement of the permission referred to in Section 13 was abrogated by a subsequent amendment to the Orissa House Rent Control Act introduced by Act XI of 1951.

Furthermore the learned Judge held that the provision requiring the permission of the Collector under Section 13 was a rule of procedure and was retrospective in operation. In this view he allowed the appeal of the plaintiff. It is against this decision that the defendant has come up in second appeal.

2. Section 13 of Orissa Act 5 of 1947 says that ho suit or proceeding by a landlord against a tenant for eviction of such a tenant shall be entertained by any Court unless the landlord has been permitted by the Controller by an order in writing to institute such a suit or proceeding, and has produced before such Court proof that such permission has been granted.

The effect of this provision was considered in the Special Bench decision of this Court reported in 1951 Orissa 105 (AIR V 38) (A) (to which reference has been made above). The question was whether the landlord was required to obtain both a certificate under Section 5 and a permission as required under Section 13, or whether the permission as required referred to in Section 13 had reference only to the exemption granted by the Collector under Section 5.

I held, in that case, that when an exemption under s. 5 (a) was obtained no permission under Section 13 was necessary while the majority held the contrary view. In order to get over the difficulty created by the majority view, the Legislature intervened and by Orissa Act XI of 1951 amended Section 13.

Under the new section all that the landlord was required to do was to produce a certified copy of the order of exemption passed by the Controller under the second proviso to Clause (b) of Section 5, to institute a suit or proceeding. The effect of the amendment in 1951, is that the landlord has to obtain an order of exemption under the second proviso to Clause (b) of Section 5, and he need not obtain a further permission from the Collector before cuing.

3. In interpreting a statute the Court has to bear in mind the principle that vested rights should be respected, since it is well settled that the Legislature does not ordinarily interfere with vested rights unless it expressly so declares. No right was conferred on the defendant against ejectment, except that he was given a protection subject to certain conditions. The old Act created a fetter on the liberty of the landlord to evict his tenant and required the permission of the Collector to sue.

The fetter on the liberty of the. landlord was removed by the later amendment. But it can by no means be contended that the tenant thereby acquired vested right in the procedure which could not be taken away by amendment of the Act. The learned District Judge was, therefore, right in his view that the requirement about a certificate was merely one relating to procedure and did not affect any vested right of the defendant on the date of the amendment.

4. Another principle which is equally well-established is that an appeal is but a reearing of the issue between the parties and the adjudication of the rights of the parties by the trial court does not become final until the appeal has been disposed of. The Court of appeal can, therefore, take into account acts and events, coming into existence subsequent to the decree of the trial Court.

The duty of the Court is to administer the law as it exists at the date when the Court is adinistering it. In Lachmeshwar Prasad v. Kesh-war Lal, 1941 FC 5 (AIR V 28) (B) it was held that the appellate Court is competent to take into account legislative changes that took place since the decision was given and its powers are not confined only to see whether the lower courts' decision was correct according to the law as it stood at the time when that decision was given.

A case very much like the present is to be found in the matter of, Tripura Modern Bank, Ltd. 1950 Cal 240 (AIR V 37) (C). Clause (12), Banking Companies Control Ordinance laid down that no Court shall entertain an application lor sanctioning a compromise or an arrangement between a Banking Company and its creditors unless the application made in respect thereof is accompanied by a certificate of the Reserve Bank stating that such compromise or arrangement was not detrimental to the interests of depositors of such company.

Sircar J. refused the application of the petitioner as he had not obtained a certificate from the Reserve Bank of India. During the pendency of the appeal before the High Court the law on the point had undergone a change so as to permit of such applications for compromise being entertained by the Court without any report or certificate from the Reserve Bank of India, but under Section 45 of the Act as amended the Court was precluded from sanctioning a compromise or arrangement between a banking company and its creditors unless the compromise or arrangement was certified by the Reserve Bank.

The High Court held that by this amendment no existing right or obligation was being impaired and that the later statute dealt only with the method and manner of invoking the Court's jurisdiction. Reliance was placed on an observation in Watton v. Watton, (1866) LR 1 P. & D 227 (D), which is worth quoting :

'And although the suitor may have a vested right to a decree, the mode and method in which he has. to approach the Court in order to obtainit, and the time within which that or any other step in the cause is to be taken are merely auxil-liary to that right and may be changed either by the Legislature or by rules and orders of Court without any infringement of the right itself.'

It will be seen that the landlord's right to evict his tenant is governed by the provisions of the Transfer of Property Act and that the protection afforded to the tenant did not affect or alter the substantive right of the plaintiff. Protection against eviction was available to the tenant subject to his paying the rent regularly.

But the tenant was not entitled to any protection in cases where the landlord wanted the house for his personal residence. Whether in a particular case the landlord required the house bona fide for his residence, or not, was left to be determined by the Collector who was empowered to give a certificate to that effect, before permitting the plaintiff to come to Court. As this related to the mode and method in which he could approach the Court, it was merely auxiliary to his right to institute a suit and did not touch his vested right as such.

I would accordingly hold that the defendant acquired no vested right in the procedure created, by the House Rent Control Act, except the bare protection against eviction in an arbitrary manner. That this is the correct principle has been recognised in numerous decisions of the different Courts which I consider it wholly unnecessary to advert to.

I would accordingly agree with the finding of the learned District Judge that the plaintiff was entitled to a decree having regard to the amended provisions in Section 13, Orissa House Rent Control Act, and that the case has been rightly decided by the lower appellate Court.

5. Mr. Das Gupta, however, drew our attention to a decision of the Patna Court in 'Firm Ladu Ram Sagarmal v. Jamuna Prasad', 1939 Pat 239 (AIR V 28) (E). The point raised in that case was whether a suit which was not maintainable by reason of non-compliance with Section 69, Civil P. C. could be entertained at a later stage by reason of subsequent registration; it was held that subsequent registration could not cure the initial defect.

It should be observed that there was no change in the law of procedure between the dates of the decree of the trial court and the appellate judgment. That case is therefore no authority for the contention raised before us.

6. In the result the appeal is dismissed and a decree is granted to the plaintiff as prayed for in his plaint. Mr. Das Gupta however pleaded for some time to be granted to the tenant for vacating the premises. In our opinion the plaintiff will not be unduly prejudiced if we grant the defendant two months Lime to vacate the house. Time is accordingly granted to the defendant to vacate the premises within a period of two months from this day.

If he fails to vacate within this period, the plaintiff shall be entitled to execute his decree for possession and compensation as decreed by the District Judge. The plaintiff shall also have the costs of this litigation throughout.

P.V.B. Rao, J.

7. I agree.


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