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Provas Chandra Poddar Vs. Visyaraju Kasi Viswanatham Raju and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberAppeal No. 2 of 1960
Judge
Reported inAIR1962Ori149
ActsTransfer of Property Act, 1882 - Sections 106; General Clauses Act, 1897 - Sections 3(35); Orissa House Rent Control Act, 1958 - Sections 2(5) and 8
AppellantProvas Chandra Poddar
RespondentVisyaraju Kasi Viswanatham Raju and anr.
Appellant AdvocateG.K. Misra and ;R.N. Misra, Advs.
Respondent AdvocateN.V. Ramadas, Adv.
DispositionAppeal allowed
Cases ReferredPran Krishna v. Jnananda Roy
Excerpt:
.....necessary implication. it is also well settled that even if a statute provides for limited retrospective effect, it should not be so construed as to have greater retrospective operation than its language renders it necessary. in short, if it be accepted, as it must be, that the amended section 10 applies to pending suits, it must well be accepted that it should apply to pending appeals. i have clearly shown that the words 'court' and 'suit' are generally construed to include appellate courts and appeals, and there is nothing in the provisions of the act to show that they are applicable only to proceedings in trial courts......sent by registered post on the 21st january, 1955 and the defendant was called upon to quit the suit house by the midnight of february 28, 1955. the expression 'mouth' for the purpose of section 106 of the transfer of property act means 'calendar month (see section 3(33) of the general clauses act). as this was a monthly tenancy commencing from the 30th of a particular month, the last day of the monthly tenancy would be the 29th of the next month. hence, the notice should have expired on the 29th february, 1955 computing the month from the 30th january, 1955, but as the year 1955 was not a leap-year and there was no date as 29th february in that year, the notice purported to expire by the mid-night of 28th february, 1955.4. in halsbury's laws of england, second edition, volume 17,.....
Judgment:

Narasimham, C.J.

1. This is an appeal under the Orissa High Court Order against the judgment of a single Judge of this Court (Hon'ble Misra, J.) dismissing an appeal filed by the appellant against the concurrent decisions of the two lower courts decreeing the respondents' suit for eviction and recovery of arrears of rents and damages. The respondents are admittedly the landlords of a house situated in Berhampur town and the defendant appellant was his tenant. This suit was brought for ejectment and other consequential reliefs on the ground that a valid notice to quit had been Issued.

2. Two main contentions were raised by the appellant against the suit for ejectment :

i. The notice to quit was not valid; and

ii. In any case, in view of the coming into force of the Orissa House Rent Control Act 1938 (Orissa Act 31 of 1958) the Civil Court had no jurisdiction to pass a decree for eviction.

On both these points the learned Single Judge held against the appellant but granted him leave to appeal to a Division Bench,

3. So far as the validity of the notice to quit is concerned, we are in entire agreement with the view taken by the learned Single Judge. Admittedly the tenancy commenced from the 30th November, 1950. The notice to quit should therefore terminate with the expiry of the month of tenancy. The notice was actually sent by registered post on the 21st January, 1955 and the defendant was called upon to quit the suit house by the midnight of February 28, 1955. The expression 'mouth' for the purpose of Section 106 of the Transfer of Property Act means 'calendar month (see Section 3(33) of the General Clauses Act). As this was a monthly tenancy commencing from the 30th of a particular month, the last day of the monthly tenancy would be the 29th of the next month. Hence, the notice should have expired on the 29th February, 1955 computing the month from the 30th January, 1955, but as the year 1955 was not a leap-year and there was no date as 29th February in that year, the notice purported to expire by the mid-night of 28th February, 1955.

4. In Halsbury's Laws of England, Second Edition, Volume 17, Paragraph 176--the principle applicable to the case of this type has been laid down thus :

'when the period prescribed is a calendar month running from any arbitrary date and not coinciding with any particular month in the calendar the period cannot exceed in length the dumber of days in the month in which it starts; and when the second of the two months in which the period falls is a month containing fewer days than those contained in the first month, the number of days in that period may be less than that of those in the first month.'

In note 'M' at the foot of the same page it is further stated that 'the period of month which begins on the 28th or any later day in January must, in the ordinary year terminate on February 28'. See also the decisions cited in note 'N' in the same page. Hence, in agreement with the learned single Judge J would hold that the notice to quit was a valid notice.

5. The second question, however presents considerable difficulty. The suit was brought on 13th May 1955 when there was no statute dealing with control of house rents, the previous House Rent Control Act of 1950 (Orissa Act 51 of 1951) having expired by then. The trial Court's decree was passed on the 1st October 1955, and the first appellate Court's judgment was delivered on the 12th November 1957. A second appeal was filed in due course and during the pendency of that appeal before the High Court the Orissa House Rent Control Act 1958 (Orissa Act 31 of 1958--hereinafter referred to as the Act) came into force in Berhampur Town on, the 1st January, 1959.

6. The general scheme of the Act is to fake away the jurisdiction of the Civil Court to entertain suits by landlords for evicting tenants, and to confer that jurisdiction exclusively on the House Rent Controller (see Sections 6 and 7). The order for eviction passed by the House Rent Controller (subject to appeal provided in the Act) is however executable by the Civil Court as a decree (see Section 13). The various grounds on which a tenant may be evicted by the Controller, have been specified in Section 7 of the Act, but it is unnecessary to refer to them here. The expression 'tenant' has been defined in the Act as follows : (See Section 2 (5))

'Tenant means any person by whom or on whose behalf rent is payable for any house and includes every person who from time to time derives title under a tenant, or a person continuing in possession after the termination of his tenancy Otherwise than under the provisions of this. Act and shall include any person against whom a suit for ejectment is pending in a court of competent jurisdiction; but not a person against whom a decree or order for eviction has been made by such a court'

If the appellant could show that he is a 'tenant'' according to the definition given above, then the present litigation between the parties will fail and they should be referred to the House Rent Controller for necessary action under Section 7. The learned single Judge of this Court seems to have taken the view that the aforesaid definition of the expression 'tenant'' though given a limited retrospective effect in respect of suits for eviction actually pending in the trial court on or after the date of commencement of the Act, should not be given further retrospective effect so as to apply also to first appeals or second appeals against decrees for eviction which may have been pending on the date the Act came into force. This depends on a construction of the words 'shall include a person against whom a suit for ejectment is pending in a court of competent jurisdiction but not a person against whom a decree or order for eviction has been made by such a court.' If the words 'suit' and 'court' occurring above are to be construed in such a way as to limit them to suits in trial courts only, the appellant's contention must necessarily fail. But it was urged on his behalf that ordinarily, in the absence of special circumstances a suit has always been construed to include an appeal and the decree of the trialcourt does not attain finality until the expiry of the period fixed for filing an appeal or else (where such an appeal has been filed) until the disposal of such appeal. Mr. G. K. Misra for the appellant therefore contended that the definition of the expression 'tenant' in the Act should be so construed as to be applicable to persons against whom the litigation for ejectment may have been pending not only in the trial court but also in the Court of first appeal or second appeal, at the time of the coming into force of the Act.

7. It is well settled that retrospective construction of a statute should not be made if it will affect vested rights, unless such a construction follows either from the express words of the statute or by necessary implication. It is also well settled that even if a statute provides for limited retrospective effect, it should not be so construed as to have greater retrospective operation than its language renders it necessary. To quote Maxwell (Tenth Edition, page 214):

'Even in construing a section which is to acertain extent retrospective, this maxim ought to,be borne in mind as applicable whenever the line is reached at which words of the section ceaseto be plain. For, it is Jo be observed that the retrospective effect of a statute may be partial in its operation.'

Here there is no doubt that partial retrospective effect was given to the Act by the extended definition of the expression 'tenant' as to make it applicable to suits for ejectment instituted prior to the coming into force of the Act which may be pending on the date of commencement of the Act. There is no rule that such a retrospective provision must be inserted in the commencement clause or at the end of a statute. It is very often a matter of choice with the draftsman to decide where to place the retrospective clause or in which form it should be drafted. Here the draftsmanhas placed, it in the definition clause by giving a wide definition, to the expression 'tenant'. Hence we must point out, with great respect, that the observation of a single Judge in Alekh Sahu v. Narayan Singh, 25 Cut LT 240, to the effect that the Act has no retrospective operation is not correct.

The Act expressly confers limited retrospective effect and the question to decide is the extentto which such retrospective effect should be givenand that depends on the construction to be givento the expression 'tenant' occurring in the definition clause. In construing that clause it. shouldbe borne in mind that the Act is primarily meantto give relief to tenants in these days of acutehousing shortage when there is a tendency on thepart of the landlords to charge exorbitant rentsfrom tenats or otherwise to take steps for unreasonable eviction of tenants--taking advantage ofthe provisions of the Transfer of property Act.It was with this end in view that a scheme forcontrolling house rents was first initiated in Orissaas early as 1942 by making an appropriate Orderunder the Defence Rules. Subsequently the OrissaHouse Rent Control Ordinance of 1946 and theOrissa House Bent Control of 1947 Were passedand the latter Act was replaced by the OrissaHouse Rent Control Act of 1950. The Act of1950 expired and after an interval of some yearsthe Orissa Legislature passed the Act of 1958.It is thus clear that the Legislature consideredthat some statutory control regarding fixation ofhouse rents and protection of tenants from unreasonable eviction by landlord, was necessaryunder existing conditions and that the general lawof landlord and tenant laid down in Chapter V ofthe Transfer of Property Act should not be allowed to operate in all its rigour; The statute isthus a beneficial measure intended for the protection of tenants and should be given a beneficialconstruction so as to suppress the mischief andadvance the remedy. To quote 'Maxwell' again;(see page 68, 19th Edn.): ;

'Even where the usual meaning of the language falls short of she whole object of the Legislature, a more extended meaning may be attributed to the words ''if they are finally susceptible of it.' The construction must not of course be strained to include cases plainly omitted from the natural meaning of the words.'

8. It is beyond dispute that where an appeal is filed against the judgment and decree of a lower Court that decree does not attain finality for the purpose of invoking the principle of res judicata until the appeal is disposed of. See Annamalai v. Thornhill, AIR 1931 PC 263. As pointed out in Gurraju v. Venkateswara Row, AIR 1917 Mad 597, an appeal is only a continuation of the original proceeding, the decree passed by the appellate Court being the decree in the suit itself. The same principle was reiterated in a very recent decision of the Patna High Court reported in Jamuna v. Chandradip, MR 1961 Pat 178. I may quote the following observations at pp. 187-188.

'A decree is final if it finally disposes of the rights of the parties. But when an appeal ispending from that decree it is not final for the rights of the parties were still under appeal. The finality must be the finality in reason to the suit ............ The term 'suit' includes the appellatestage thereof. The suit therefore will be deemed to be pending until the appeal is finally disposed of and a final order passed upon the appeal ............... When an appeal is preferred from adecree of the court of first instance the suit is continued, in the court of appeal and re-heard either in whole or in part according as the whole suit is litigated again in the court of appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that he one confirming, varying or reversing the decree of the court of first instance.' Doubtless the mere filing of an appeal does not render the decree of the lower court inexecutable unless an express order of stay is issued by the appellate Court, as provided in Order 41, Rule 5, C. P. C. But the necessity for the insertion of such a provision arose because otherwise, the lower court's decree may not be executable during the pendency of the appeal even if no stay order is issued by the appellate Court.

9. Moreover whenever the Legislature wanted to exclude appeal from the ordinary meaning of the expression suit they said so in clear terms in the statute itself. Thus, in Section 2 (1) of the Limitation Act it is expressly stated that 'suit' does not include an appeal. Again, Section 50 of the Bombay Rents (Hotels and Lodging Houses Rates) Control Act, 1947 which came up for construction before the Supreme Court in Chandrasinh v. Surjit Lal, AIR 1951 SC 199, expressly excluded 'appeals' and execution proceedings from the scope of that Act. Here however, the Legislature has not expressly excluded appeals from the definition of the expression 'tenant'.

10. There seems therefore no special reason why the doctrine of beneficial construction should not be applied and the word 'suit' should not be construed to include an appeal also. It was urged however that the words in the latter portion of the definition clause but not a person against whom a decree or order for eviction, has been made by such a Court' impliedly excluded such a wide construction of the word 'suit''. But unless the words 'decree or order' are construed in the Wider sense indicated above so as to include an order or decree which has attained finality either on the expiry of the period prescribed for filing of appeals or after the disposal of the appeals, if any, the two portions of the definition clause cannot be construed harmoniously. A narrow construction of the definition clause will lead to the following anomalies. Suppose an ex parte decree for eviction of a tenant has been passed by the Civil Court' prior to the commencement of the Act. Can that decree be held to be 'decree' within the meaning of the definition clause? If after the corning into force of the Act, the tenant gets the ex parte decree set aside tinder Order 9, Rule 13, Civil Procedure Code, and the entire suit is remanded to the trial court for re-hearing, such a suit must be held to be 'pending' for the purpose of the aforesaid definition. Hence, the- expression 'decree' must be construed as referring only to a decree Which has attained some sort of finality.

Again suppose a decree for ejectment is passed by the trial court prior to the corning into force of the Act and an appeal against that decree, is pending on the date of commencement of the Act. The appellate Court may, while tearing the appeal, set aside the judgment and decree of the trial courts and remand the suit for rehearing by the trial Court. It will be anomalous to say that the suit then pending before the trial court after remand is not a pending suit within the meaning of the definition clause. Thus, as long as there is a possibility that a superior court may remand the suit for re-shearing by the trial court and thereby keep the suit itself pending, it will be anomalous to hold, as a matter of construction, that merely on the filing of an appeal a suit ceases to be a pending suit. In the Full Bench decision of this Court reported in 14 Cut LT 57: (AIR 1949 Orissa 37) (FB), Siba Prasad v. Mst. Nurabati this anomaly was pointed out as one of the reasons for construing the words 'suit' and 'court' occurring in Section 10 of the Orissa Money Lenders Act as including appeals and appellate Courts. I may quote the following observation (at p. 60 (of Cut LT): (at p. 40 of AIR)).

'One is that when an appellate Court disposes of an appeal he either upholds or modifies or upsets the decree of the suit. By doing so he in substance passes a decree in the suit. Take the instance of an appeal say S. A. 18 of 1941. Suppose the suit had been dismissed by both the courts below as barred by time and this Court in Second appeal set aside that finding and remitted the case back to the trial Court for consideration on merits. The trial Court, at the re-hearing, shall not be competent to pass a decree in derogation of the provisions of the amended Section 10. Because according to Section 16(i) the amendment would apply to pending suits. It would be anomalous, or rather absurd, to hold that if, instead of remanding it, this Court proceeds to dispose of the suit it would not pass, the same decree as the trial court would at re-hearing. In short, if it be accepted, as it must be, that the amended Section 10 applies to pending suits, it must well be accepted that it should apply to pending appeals. Appeals are filed in suits and hence are nothing but a continuation of suits. Whether the subject-matter of the litigation is awaiting adjudication in a suit or in an appeal filed, in a suit, the lis is for all purposes of law and fact considered to be pending.'

These anomalies can be removed only if we give a beneficial construction without doing violence to the language. Such construction is also in consonance with the general principle that 'suit' would include 'appeals' also unless the contrary intention is expressly declared in the statute itself or follows as a necessary inference considering the general scheme of the statute and the subject and the context in which the expression 'tenant' is used. Once the legislature has declared its intention to confer the benefits of the Act even on thosetenants against whom suits for eviction had been filed prior to the commencement of the Act, there seems no special reason why those benefits should be denied to those classes of tenants against whom judgments were delivered by the trial Court but whose appeals were pending on the date on which the Act came into force. It is true that the Legislature had full discretion to exclude persons of this type from the benefits of this Act, but in that case they would have expressed their intention in clear, language as they did in some other statutes.

11. I may also, in this connection, refer to a recent decision of the Supreme Court reported in AIR 1960 SC 307, Nachiappa v. Subramaniam where, while construing the words 'Court'' and 'suit' occurring in Section 21 of the Indian Arbitration Act their Lordships held that 'court' includes appellate Courts and suit includes appeals. The conflict of decision of the various High Courts was noticed by their Lordships and the judgment shows that the matter is not free from difficulty. But they held that the general rule that an appeal is only a continuation of the suit should be followed and that there was no special reason why Section 21 of the Arbitration Act should be given a narrow construction so as to exclude appeals. Their Lordships further pointed out (in paragraph 36) that in adopting this liberal construction the long standing practice of the Indian Courts which prevailed prior to the passing of the Arbitration Act of 1940, may be looked into.

12. It will therefore be useful to examine the relevant provisions of the previous laws dealing with house rent control in Orissa with a view to ascertain whether they were applicable not only to suits pending in the original courts but also to appeals pending in appellate courts On the dates when those laws came into force. The earliest law on house rent control in Orissa was the Orissa House Rent Control Order 1942 made under the Rule 81 (2)(bb) of the Defence of India Rules. In paragraph 4 of the Order it was laid down that

'notwithstanding anything contained in agreement or law to the contrary where a tenant is, en the date of commencement of this Order in possession of any house on a tenancy from month to month he shall not be liable to be ejected except for non-payment of rent or breach of the conditions of the tenancy'.

The second proviso to that paragraph conferred power on the Controller to grant exemption to a landlord from the provisions of the aforesaid paragraph. Hence unless an exemption certificate was obtained from the Controller no landlord could evict a tenant who was in actual possession of a house on the date of commencement of the order 'notwithstanding anything contained in any agreement Or law to the contrary'. Section 3 of the Defence of India Act 1939, stated that any order made under the Defence of India Rules 'shall have effect notwithstanding anything inconsistent therewith contained in any enactment (other than this Act) or in any instrument having effect by virtue of any enactment (other than this Act)''. Thus paragraph 4 of the aforesaid Order was given an over-riding effect over other laws or instruments dealing with the subject. Hence even if an appeal against a decree for ejectment of a tenant was actually pending on, the date of commencement of the Order, the appellate Court was bound by paragraph 4 and could not confirm the decree for; ejectment unless the necessary exemption certificate was obtained from the Controller.

It is thus clear that the House Rent Control Order of 1942 was expressly made applicable not only to pending suits but also to pending appeals. Any suit instituted alter the commencement of the Order was bound to conform to its provisions, and a suit for ejectment would not lie except after obtaining the necessary exemption certificate from, the Controller. When the Orissa House Rent Control Order expired with the expiry of the Defence of India Act the Governor of Orissa promulgated the Orissa House Rent Control Ordinance in 194(6. There also there was a provision on similar lines (see Section 5). Section 13 of the Ordinance prohibited a court from entertaining any suit or proceeding by a landlord against a tenant for eviction unless an exemption certificate was obtained. This Ordinance was subsequently replaced by the Orissa House Rent Control Act 1947 which also contained similar provisions in Sections 5 and 13. The slight improvement made in this Act was the addition of the words 'whether in execution of a decree or otherwise' in Clause (e) of Section 5, thus making it clear that even where the appellate Court confirms the decree for eviction and execution is filed, then bar of Section 5 would operate. This Act also was subsequently replaced by the House Rent Control Act of 1950 where also the provisions were of a similar nature.

Thus from 1942 uptill 1950 there could possibly he no question of the appellate Court excluding a tenant from the benefits of these laws merely because a decree for his eviction had been passed prior to the commencement of these laws by the original Court. The benefits of these control laws were conferred on tenants in respect of all pending. proceedings whether they were in the original stage or appellate stage or in the stage of execution. It is true that after the expiry of the 1950 Act there was some interval before the Act of 1958 was passed. It is also true that the Act made a departure from the old enactments by taking away the jurisdiction of the Civil Court to pass any decree for eviction and conferring that power exclusively on the Controller, leaving it to the Civil Court only to execute the order of eviction passed by him. But in other respects there was no material difference between the old laws and the Act except with regard to the definition of the expression 'tenant' as explained by me already. Here the draftsman adopted the somewhat unusual device of giving an extended definition of the word 'tenant' so as to give limited retrospective effect to the Act instead of conveying the same idea in a separate section. In view of the observations of the Supreme Court in AIR 1960 SC 307 and the general rule that a 'suit' also includes 'appeals' there seems no justification for taking the view that the Legislature made a violent change and intended to exclude from the benefits of the Act those classes of tenants whose only misfortune was that decrees for eviction had been passed prior to the commencement of the Act by the original court and the litigation was pending on appeal.

12a. Mr. Ramdas for the respondent cited a Calcutta decision reported in AIR 1941 Cal 452, Janur Mia v. Abdul Ghaffur Mia (which was followed in AIR 1942 Cal 47, Pran Krishna v. Jnananda Roy where it was held that the benefits of the Bengal Non-Agricultural Tenancy (Temporary Provision) Act 1940 were not applicable to those tenants against whom decrees, for eviction were pending on appeal on the date of commencement of that Act, But though one of the learned Judges (Biswas, J.) was of that view the other Judge (Mukherji, J.) was not prepared to go so far as to say that an appeal arising out of a suit for ejectment of a tenant was not hit by the provisions of the aforesaid Act. In the judgment of Biswas, J. the anomalies resulting from the adoption of such a narrow construction have not been noticed. Moreover the observations of the Supreme Court in AIR 1960 SC 307 should be preferred to those of Biswas, J. in AIR 1941 Cal 452, especially when the other judge (Mukherji, J.) was not prepared to go so far as to exclude 'appeals' from the scope of the expression 'suit'.

13. The question ultimately depends on whether the language of the definition clause in the Act is fairly susceptible of the wider constructionsuggested by the appellant and whether it involves any undue strain on the language. I have clearly shown that the words 'Court' and 'suit' are generally construed to include appellate courts and appeals, and there is nothing in the provisions of the Act to show that they are applicable only to proceedings in trial courts. The Act being the beneficial measure intended primarily for the protection of tenants should be construed in the wider sense indicated above.

14. Mr. Ramdas also drew our attention to the provisions of Ordinance II of 1961 by which a new section (Section 6-A) was added to the Act granting the temporary relief of stay of execution of decrees to those tenants who had filed appeals or revision petitions or review petitions against such decree passed against them by the Civil Court. It was urged that this ordinance impliedly accepts the narrow construction of the expression 'tenant' as held by the learned single Judge. But I do not think that the provisions of the Ordinance can be looked into, as an aid in construing the expression 'tenant' in the Act. Itmay be that the Ordinance was passed because of the judgment delivered by the learned Judge which is now under appeal before us. I would therefore ignore the provisions of the Ordinance.

15. The question as to whether the definition would apply where a revision petition or a petition for review, against the decree for eviction, is pending on the date of commencement of the Act, doesnot arise for decision here and is left open. A revision petition or review petition may not stand on the same footing as an appeal, but we would prefer not to express any opinion on this question without fuller arguments.

16. For the aforesaid reasons the appeal is allowed, the judgment of the learned Single Judge is set aside, and it is declared that the appellant is a 'tenant' within the meaning of the Act. The suit for eviction is therefore, barred by Section 8 of the Act.

17. The judgment and decree of the lower Court are set aside and the suit is dismissed. But each party will bear his own cost throughout.

R.K. Das, J.

18. I agree.


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