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Govinda Menon Vs. Varkey and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKerala High Court
Decided On
Case NumberE.S.A. No. 5 of 1979
Judge
Reported inAIR1985Ker277
ActsKerala Land Reforms Act, 1964 - Sections 13B; Kerala Land Reforms (Amendment) Act, 1969 - Sections 108 and 108(3); Kerala Stay of Eviction Proceedings Act, 1967 - Sections 6 and 6(2);
AppellantGovinda Menon
RespondentVarkey and ors.
Appellant Advocate T.S. Venkateswara Iyer,; P.K. Balasubramonian and; G.K.
Respondent Advocate V.P. Mohankumar and; Rajan Joseph, Advs.
DispositionAppeal dismissed
Cases ReferredDebi Prasad v. Kedar Singh
Excerpt:
civil - amendment - section 13b of kerala land reforms act, 1964, sections 108 and 108 (3) of kerala land reforms (amendment) act, 1969 and sections 6 and 6 (2) of kerala stay of eviction proceedings act, 1967 - essence of section 108 (3) is that if in proceedings pending at time of commencement of act any person claims any benefit conferred by principal act or amended act such pending proceedings to be disposed of as per provisions of amended act - section 108 (3) spells out intention contrary to continuance of petition filed under section 6 - legislative intention which could be gathered from section 108 (3) gives no room to infer that right to continue proceedings under section 6 (2) had been preserved - all indications are that right has been completely destroyed by positive.....bhaskaran, c.j.1. two important questions of law arise in this appeal: (1) if, in proceedings pending on the date of commencement of the kerala land reforms (amendment) act, 1969 (act 35 of 1969) (hereinafter referred to as the amending act), which amended the kerala land reforms act, 1964 (act i of 1964) (hereinafter referred to as the principal act), a tenant dispossessed of his holding in execution of a decree for arrears of rent, had claimed restoration of possession thereof, under sub-section (2) of section 6 of the kerala stay of eviction proceedings act, 1967 (act ix of 1967) (hereinafter referred to as the temporary act), whether the application for that relief is to be pursued under the provisions of that act or under the provisions of the kerala land reforms act, 1964, as.....
Judgment:

Bhaskaran, C.J.

1. Two important questions of law arise in this appeal: (1) If, in proceedings pending on the date of commencement of the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) (hereinafter referred to as the Amending Act), which amended the Kerala Land Reforms Act, 1964 (Act I of 1964) (hereinafter referred to as the Principal Act), a tenant dispossessed of his holding in execution of a decree for arrears of rent, had claimed restoration of possession thereof, under Sub-section (2) of Section 6 of the Kerala Stay of Eviction Proceedings Act, 1967 (Act IX of 1967) (hereinafter referred to as the Temporary Act), whether the application for that relief is to be pursued under the provisions of that Act or under the provisions of the Kerala Land Reforms Act, 1964, as amended by Act 35 of 1969 (hereinafter referred to as the Amended Act); and (2) whether for the purpose of Sub-section (2) of Section 6 of the Temporary Act, a deposit accompanying an application under Section 47 or-under Order XXI Rule 90 C.P.C., not withdrawn by the decree-holder, would satisfy the requirements of deposit of purchase money together with interest in terms of that section of the Temporary Act; and whether deposit of purchase money made for the purpose of Sub-section (2) of Section 6 of the Temporary Act would be sufficient for the purpose of Section 13-B of the Amended Act, if the application is to be continued and disposed of under that Act. It is because of the importance of these questions of law and in view of the apparent conflict between the decisions of this Court in Parameswaran Nambudiri v. Kalyani, 1974 Ker LT 67, A. S. A. No. 19 of 1976 and C: R. P. Nos. 1090 and 1091 of 1972 on the one hand and O. P. No. 3872 of 1970 and C. R. P. No. 261 of 1975 on the other, that the matter has been referred to the Full Bench.

2. The short facts relevant for the purpose of disposal of the appeal could be stated as follows: The appellant in the second appeal is the respondent in E. A. No. 992 of 1967 in O. S. No. 41 of 1962 on the file of the Munsiffs Court, Irinjalakuda, who is respondent No. 1 in A. S. No. 62 of 1975 on the file of the Subordinate Judge's Court, Irinjalakuda. In execution of the decree in O. S. No. 41 of 1962 for arrears of rent, the appellant herein brought to sale the decree scheduled property and purchased it himself. In course of time, the appellant took delivery of the property.

3. Respondents 1 and 8 and the predecessor-in-interest of respondents 2 to 7 herein, made two applications: (1) under Section 47 C.P.C. and (2) under Order XXI Rule 90 C.P.C., E. A. Nos. 321 of 1966 and 166 of 1966 respectively; attacking the court-sale in favour of the appellant herein. The respondents herein deposited a sum of Rs. 1580.32 in Court, which they claimed would satisfy the decree. By order dated 25-7-1966, the executing Court allowing E. A. No. 321/66 and 166/66 set aside the sale. There was a direction that the amount deposited by the respondents herein was to be withdrawn by the appellant herein in satisfaction of the decree. The matter was taken up in appeal by the appellant herein in A. S. Nos. 44 and 46 of 1966 on the file of the Subordinate Judge's Court, Irinjalakuda. Both the appelas were dismissed on 1-8-1966, confirming the orders of the execution Court. The appellant herein filed S. A. Nos. 957 of 1966 and 964 of 1966 against the said decisions. While the said appeals were pending, the Temporary Act was enacted. Section 6 thereof provided for restoration of possession of the properties sold in certain cases on condition that the persons contemplated by that section deposit the purchase money together with interest at the rate of 6% per annum in Court within six months of the commencement of the Act and apply to the Court for an order setting aside the sale. The respondents herein made an application stating inter alia that the amount already deposited by them in connection with their applications, E. A. Nos. 321 of 1966 and 166 of 1966 respectively, under Section 47 and Order XXI Rule 90 C.P.C. would satisfy the requirements. The applicant herein resisted the applications contending inter alia that the applications was not maintainable; that the deposit of purchase money and interest was a condition precedent to the entertaining of the application and that in any event, the deposit made in connection with the applications under Section 47 and Order XXI Rule 90 C.P.C. could not be treated as deposit for the purpose of satisfying the conditions of the provisions of a statute like the Act in question and that the amount in deposit was insufficient for the purpose of the Act. The second appeals filed by the appellant were allowed by this Court by judgment dated 30-10-1969. By order dated 10-4-1975, the executing Court held that there was no deposit as contemplated under Section 6 of the Act, and in that view dismissed the application. The lower appellate Court, however, allowed the appeal filed by respondents 1 to 7 herein and allowed the application under Section 6 of the Act. It is against the decision of the first appellate Court that this appeal has been preferred.

4. Before proceeding to examine the questions of law raised for decision, it would be of some help if we notice the background of the legislative policy behind the enactments and the object sought to be achieved. After the formation of the Kerala State, the major legislative step taken in the direction of land reforms was the enacting of the Kerala Agrarian Relations Act, 1960 (Act 4 of 1961). That Act, however, was declared unconstitutional in its applications to the ryotwari lands of Hosdrug and Kasaraged Taluks by the judgment of the Supreme Court dated 5-12-1961. For this and other reasons, the new enactment, the Kerala Land Reforms Act, 1963 (the Principal Act) was brought into force with effect from 1-4-1964. In the actual working of the statute, certain loopholes having been noticed and certain improvements having been felt necessary, a comprehensive legislation bringing about far-reaching modifications to the provisions of the Principal Act and conferring certain benefits on certain classes of persons was thought about, and that resulted in the enactment of the Amending Act, which came into force on 1-1-1970. In order to give effect to the intention of the Legislature to provide interim relief to tenants, before the Amending Act (Act 35 of 1969) was enacted, the Kerala Stay of Eviction Proceedings Ordinance (Ordinance 4 of 1967) was promulgated by the Governor. That was replaced by the Temporary Act (Act 9/1967), which came into force on 29-7-1967, as per Section 1(3) and that Act was to be in force only till 31-12-1968. The life of the enactment was subsequently extended till 31-12-1969 by Amending Act 5 of 1969. Sub-sec. (4) of Section 1 of the Temporary Act, provides :

'Upon the expiry of this Act, provisions of Section 4 of the Interpretation and General Clauses Act, 1125 (VII pf 1125) shall apply as if this Act had been repealed by an Act of the Kerala State Legislature.'

Section 109 of the Amending Act, provided:

'The Kerala Stay of Eviction Proceedings Act, 1967 (Act 9 of 1967)ishereby repealed.'

5. We may now notice the provisions contained is Section 4 of the Interpretations and General Clauses Act, 1125 :

'Effect of repeal: -- Where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--

(a) to (b) xxxxx

(c) affect any right, privilege, obligations or liability acquired, accrued, or incurred under any enactment so repealed; or

(d) xxxxx

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligations, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.'

6. The main question raised which requires to be decided is, whether it is in accordance with the provisions of the Temporary Act or according to the provisions of the Amended Act, a proceeding under Section 6(2) of the Temporary Act, pending at the commencement of the Amending Act, Is to be disposed'of if any person claims any right, benefit or remedy under the provisions of the Principal Act or the Amended Act, in such proceedings.

7. Sub-secs. (1) and (2) of Section 6 of the Temporary Act, read as follows :

'6. Restoration of possession.-- (1) Notwithstanding anything to the contrary contained in any other law, or in any judgment, decree or order of any Court, where any holding has been sold in execution of any decree for arrears of rent and the tenant dispossessed of the holding after the first day of April, 1964 and before the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1967 (4of 1967), such tenant shall, subject to the provisions of this section, be entitled to restoration of possession of the holding.

(2) Any person entitled to restoration of possession of his holding under Sub-section (1) may, within a period of six months from the commencement of this Act, deposit the purchase money together with interest at the rate of six per cent per annum in the Court and apply to the Court for setting aside the sale and for restoration of possession of his holding.' (rest of the section omitted)

8. In a short judgment, without detailed discussion, one of us (Bhaskaran, J. as he then was) had, in paragraph 3 of the judgment dated 3-11-1972 in O. P. No. 3872 of 1970, observed as follows :

'A difficulty has been pointed out by the learned counsel appearing for the respondent that there was no provision for appeal under Act 9 of 1967. However, in view of the fact that by virtue of the provisions contained in Section 108 of Act 35 of 1969, this has to be treated as a pending matter; and the appropriate authority shall dispose of the matter in terms of the provisions contained in the amended Act.'

Subsequently, Krishnamoorthy Iyer, J., in the order dated 9-1-1973 in C. R. P. Nos. 1090 and 1091 of 1972, without reference to the unreported decision in O. P. No. 3872 of 1970 referred to above, took the view that inasmuch as Section 1(4) of the Temporary Act had provided that upon the expiry of the Temporary Act, the provisions of Section 4 of the Interpretation and General Clauses Act, 1125 (VII of 1125) would apply as if the Temporary Act had then been repealed by an Act of the Kerala Legislature; and the Amending Act contained no intention to the contrary to the continuance of the petitions filed under Section 6 of the Temporary Act, pending at the commencement of the Amending Act, in accordance with the provisions of that Act (the Temporary Act), and therefore such proceedings had to be disposed of in accordance with the provisions of the Temporary Act itself, not in accordance with the provisions of the Amended Act. In support of this conclusion, it was stated that the proviso to Sub-section (1) of Section 13-B of the Amended Act had, in same measure, restricted the right of restoration of possession. The decision of the Supreme Court in Kalawanti Devi v. Income-tax Commr. West Bengal, AIR 1968 SC 162 reading :

'It is true that whether a different intention appears or not must depend on the language and content of Section 297(2).'

also was relied on. The proviso to Sub-section (1) of S, 13-B of the Amended Act, on which reliance was placed, reads :

'Provided that, nothing in this sub-section shall apply in any case where the holding has been sold to a bona fide purchaser for consideration after the date of such dispossession and before the date of publication of the Kerala Land Reforms (Amendment) Bill. 1968, in the Gazette.'

9. The same question cropped up once again in C. R. P. No. 975 of 1973. Eradi J., (as he then was) before whom it came up for hearing, it would appear, was prima facie inclined to agree with the decision in O. P. No. 3872 of 1970 and was of the opinion that the decision in C.R.P. Nos. 1090 and 1091 of 1972 required re-consideration. Accordingly, that matter came up on reference before a Division Bench consisting of Gopalan Nambiyar and George Vadakkel, JJ., and the decision of the Division Bench is reported in 1974 Ker LT 67. The Division Bench affirmed the decision in C. R. P. Nos. 1090 and 1091 of 1972 and dissented from the decision in O. P. No. 3872 of 1970. At this juncture, it is relevant to notice the provisions contained in Sub-sections (1) and (2) of Section 6 of the Temporary Act, which we have already extracted above, the provisions in Sub-sections (2) and (3) of Section 108 of the Amending Act, as it stood before its amendment by Act 25 of 1971, and Sub-sections (1) and (2) of Section 13-B of the Amended Act, which are as follows : --

' 108. Transitory Provisions. --

(1) xxxxx

(2) Any decree passed before the commencement of this section for the dispossession of a person from the land in his possession, pursuant to which dispossession has not been effected, may, on the application of such person, to the Court which passed the decree be re-opened and the matter may be disposed of in accordance with the provisions of the principal Act as amended by this Act.

(3) If in any suit, application, appeal, revision review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any Court, Tribunal, officer or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by this Act, such suit, application, appeal, revision, review, proceedings in execution, or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by this Act.'

Section 13-B (1) and (2) reads as follows :

'13-B. Restoration of the possession of certain holdings sold for arrears of rent --

(1) Notwithstanding anything to the contrary contained in any law, or in any judgment, decree or order of Court, where any holding has been sold in execution of any decree for arrears of rent, and the tenant has been dispossessed of the holding after the 1st day of April, 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, such sale shall stand set aside and such tenant shall be entitled to restoration of possession of the holding, subject to the provisions of this section :

Provided that nothing in this sub-section shall apply in any case where the holding has been sold to a bona fide purchaser for consideration after the date of such dispossession and before the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette. (2) Any person entitled to restoration of possession of his holding under Sub-section (1) may, within a period of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, deposit the purchase money together with interest at the rale of six per cent per annum in the Court and apply to the Court for setting aside the sale and for restoration of possession of his holding.'

It may further be noticed that Section 108(3) of the Amending Act was amended with retrospective effect by Section 22 of Act 25 of 1971. and in the amended form it reads as follows :

'If in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any Court. Tribunal, Officer or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by this Act, such suit, application, appeal, revision, review) proceedings in execution or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by this Act.' Gopalan Nambiar, J., (as he then was), who spoke for the Bench in Parameswaran Nambudiri's case (1974 Ker LT 67), at page 69 of the report has stated as follows :

'Before its amendment by Act 25 of 1971, the section was differently worded. The scope of the pre-amendment section fell to be considered by a Full Bench of this Court in K. P. Mohammed v. Maya Devi. 1971 Ker LT 284 : (AIR 1971 Ker 290). It was pointed out that Clause (3) of Section 108 applies only in respect of any matter, arising under and provided for by the 'Principal Act', which underlined expression, on the express provisions of Section 1 of Act 35 of 1969, meant. Act 1 of 1964. Applying the principle of that decision, there is nothing in Act 1 oi' 1964 which conferred upon a tenant, in circumstances such as what has been disclosed in this case, the right of restoration. Nor is the position improved by the amendment of Section 108(3) introduced since the Full Bench decision; because, there was no application pending at the commencement of the section in which a right or remedy conferred by the provisions of the Principal Act as amended by Act 25 of 1971, was pending adjudication. Therefore, Section 108(3) on which the petitioner's counsel placed reliance io attract Section 13-B cannot avail the petitioner. It follows that we cannot agree with the view taken by Bhaskaran J- in the unreported judgment in O. P. No. 3872 of 1971; nor with the prima facie concurrence with the view expressed by Eradi J., in the order of reference. The unreported judgment of Bhaskaran J., did not discuss the question as to whether an application filed under Act 9 of 1967 and pending before the date of commencement of Act 35 of 1969. is liable to be disposed of in accordance with the provisions of the latter, having regard, in particular to Section 108(3) of the transitory provisions of Act 35 of 1969.' It is evident that what weighed with the Division Bench was the reasoning that there was no application pending at the commencement of the section in which a right or remedy conferred by the provisions of the Principal Act, as amended by Act 25 of 1971, was pending'adjudication. If we may say so, with due respect, there were two mistakes in this assumption: (1) the reference to any benefits, remedy and right conferred by the Principal Act, as amended by Act 25 of 1971, was clearly wrong, as the provisions in Section 108(3) of Acl 35 of 1969, (the Amending Acl) have been amended retrospectively from 1-1-1970 by Section 22 of Act 25 of 1971, and, therefore, the reference to the benefit, remedy and right was really with respect to the Amended Act, not to the Principal Act as amended by Act 25 of 1971, as wrongly assumed by the Division Bench; and (2) the assumption of the Division Bench that for the application of Section 108(3) of the Amending Act, there should have been pending at the commencement of that Act a proceeding in which any benefit, right or remedy conferred on a person under the provisions of the Principal Act or the Amended Act had already been claimed, does not appear to be warranted by the wording of the subsection. The first mistake pointed out above, is seen to have been corrected by a Full Bench, to which both the Judges who rendered the Division Bench decision in Parameswaran Namboodiri's case, 1974 Ker LT 67 were parties. Chandrasekhara Menon, J., who spoke for the Full Bench in the decision in Ammu Brahmani v. Gopalan, 1977 Ker LT 556 : (AIR 1979 Ker 130), referring to the Division Bench decision in Parameswaran Namboodiri's case 1974 Ker LT 67 and stated as follows :

'The Division Bench referring to that decision. 1974 Ker LT 67, rightly said that there was nothing in Act 1 of 1964 which conferred upon a tenant in circumstance such as what had been disclosed in the case, the right of restoration. The Court further added: Nor is the position improved by the amendment of Section 108(3) introduced since the Full Bench decision; because, there was no application pending at the commencement of the section in which a right or remedy conferred by the provisions of the Principal Act as amended by Act 25 of 1971, was pending adjudication. We feel that in assuming that Section 108(3) of Act 35 of 1969 as amended refers to 'a right or remedy conferred by the provisions of the principal Act as amended by Act 25 of 1971', a mistake was committed by the Division Bench. What has to be considered was, whether the right or remedy conferred by the provisions of the principal Act as amended by Act 35 of 1969 was pending adjudication. Section 108(3) as it now stands is a substitution of the previous provision by the amending Act 25 of 1971. Section 108(3) as amended says: 'the principal Act as amended by this Act'. Section 108 being a provision of Act 35 of 1969, the expression could only mean the principal Act as amended by Act 35 of 1969.'

Still later, the same question arose before another Division Bench, which consisted of Gopalan Nambiar C.J., and Balagangadharan Nair, J., and Gopalan Nambiar C.J., who spoke for the Bench, reiterated the stand taken earlier in Parameswaran Namboodiri's case, 1974 Ker LT 67 with the difference that he noticed the mistake that had crept in the assumption that the reference to the Principal Act as amended by the Amending Act in Section 108(3) of the Amending Act was to the Principal Act as amended by Act 25 of 1971, which was pointed out by Chandrasekhara Menon, J., in the Full Bench decision in Ammu Brahmani's case 1977 Ker LT 556 : (AIR 1979 Ker 130). The reasons stated in support of the conclusion reached by the learned Judge on the relevant question of law were the same as what were stated by Krishnamoorthy Iyer, J., in the order in C. R. P. Nos. 1090 and 1091 of 1972.

10. The main question raised and which requires to be decided is whether it is in accordance with the provisions of the Temporary Act or according to the provisions of the Amended Act, proceedings under Section 6(2) of the Temporary Act pending at the commencement of the Amending Act, in which a person claims a benefit, right or remedy under the provisions of the Principal Act or the Amended Act, are to be disposed of.

11. We have already noticed, while peeping into the legislative history behind the Land Reforms Act, that the Temporary Act (9 of 1967) was only a temporary legislative measure to provide interim relief and protection to the tenants, pending comprehensive legislation 'to grant more benefits to tenants and kudikidappukars'. The scheme the Legislature had in mind is indicated from the fact that the death of the Temporary Act and the birth of the Amending Act (Act 35 of 1969) were simultaneous, without allowing any time interval between the two. A plausible argument could have been put forward in favour of the proposition that proceedings under Section 6(2) of the Temporary Act pending at the commencement of the Amending Act, should have been pursued under the Temporary Act itself, but for the combined effect of Section 108(3) of the Amending Act (35 of 1969) and Section 13-B of the Amended Act. The essence of Section 108(3) of the Amending Act is that, if, in proceedings pending at the time of the commencement of that Act, any person claims any benefit, right or remedy conferred by the Principal Act or the Amended Act, such pending proceedings shall be disposed of in accordance with the provisions of the Amended Act, that is to say, in accordance with the provisions in Act 1 of 1964, as amended by Act 35 of 1969. The mandate of Section 108(3) would operate unless the application under Section 6(2) relates to anything other than the benefit, right or remedy conferred by any of the provisions of the Amended Act. In the ease that had fallen for decision in C. R. P. Nos. 1090 and 1091 of 1972, decided by Krishnamoorthy lyer, J., and in Parameswaran Namboodiri's case 1974 Ker LT 67, as also in A. S. A. No. 19 of 1976, decided by Division Benches, the parties had no case that the benefit, right or remedy sought by them under the respective applications under Section 6(2) of the Temporary Act was anything more or other than what was conferred by the provisions of the Amended Act. It is quite clear that Section 108(3) of the Amending Act spells out an intention to the contrary to the continuance of the petitions filed under Section 6 of the Temporary Act under the provisions of that Act. The legislative intention which eould be gathered from Section 108(3) of the Amending Act gives no room to infer that the right to continue the proceedings under Section 6(2) of the Temporary Act had been preserved; on the other hand, all the indications are that that right has been completely destroyed by the positive directions contained in Section 108 of the said Act, and in Section 13-B of the Principal Act. Krishnamoorthy Iyer, J. as well as Gopalan Nambiyar, C.J., have dwelt upon the proviso to Section 13-B(1) of the Principal Act which has already been extracted towards the end of paragraph 7 supra. That a particular category of persons entitled to benefit under Section 6 of the Temporary Act has been specifically excluded from the purview of Section 13-B(1) of the Amended Act by itself would not be a valid defence to allow proceedings pending at the time of the commencement of Act 35 of 1969 (Amending Act) in which any person claims any benefit, right or remedy conferred by the provisions of the Amended Act to be continued in accordance with the provisions of the Temporary Act, despite the injunctions against such continuance contained in Section 108(3) of the Amending Act. May be, a particular category of persons has been excluded from the purview of Section 13-B(1) of the Amended Act; hut it could only mean that no benefit, right or remedy is conferred on that class of pe-rsons by the provisions of the Amended Act. The mandate in Section 108(3) is restricted to persons claiming benefits, rights or remedies conferred by the principal Act or the Amended Act, not to persons on whom no such benefit, right or remedy has been conferred. The scope and purpose of the sub-section appear to have been misunderstood when emphasis is laid on the proviso which excludes certain category of beneficiaries under the Temporary Act from the purview of Section 13-B(1) of the Amended Act, and on the difference noticed between the two provisions, it is concluded that no intention to the contrary to the continuance of the proceedings under the provisions of the Temporary Act itself, had been contained in the provisions of Section 108(3) of the Amending Act. The position is simple: on certain class of persons certain benefits, rights and remedies have been conferred either by the Principal Act or by the Amended Act; Section 108(3) of the Amending Act provides that if any person claims any such benefit, right or remedy in proceedings pending at the commencement of the Amending Act, such proceedings shall be disposed of in accordance with the provisions of the Amended Act. There could be no doubt that the intention of the Legislature has been that such proceedings should be disposed of in accordance with the provisions in the Amended Act. The applicability or otherwise of Section 108(3) of the Amending Act has to be determined with reference to the persons who claimed in the pending proceedings any benefit, right or remedy conferred on them under the Principal Act or the Amended Act, not with reference to persons on whom no such benefit, right or remedy has been conferred by the Principal Act or the Amended Act. From that point of view, it is immaterial whether or not certain categories of beneficiaries under the Temporary Act, have been excluded from the purview of Section 13-B(1) or any other provision in the Principal Act or the Amended Act. The absence of any intention contrary to the continuance of the proceeding under the Temporary Act itself so far as it related to persons on whom certain benefits were conferred by the Temporary Act, but from whom such benefits were taken away by the proviso to Section 13-B(1) of the Amended Act, would not justify our importing into Section 108(3) 'intention to the contrary' so far as it related to a case of those who claimed any benefit, right or remedy conferred on them by the Amended Act in proceedings pending at the commencement of the Amending Act.

12. We are afraid, if we may say so with due respect, both Krishnamoorthy Iyer J. and Gopalan Nambiyar C.J. had omitted to notice the significant fact that to attract the provisions of Section 108(3) of the Amending Act, in terms, it is not even necessary that there should have been pending at the commencement of the Amending Act some proceedings in which a benefit conferred by the Principal Act or the Amended Act had already been claimed. The requirement of the sub-section shall stand fulfilled, if, in any proceeding pending at the commencement of Section 108 of the Amending Act, any person claimed any benefit, right or remedy conferred by any of the provisions of the Principal Act or the Amended Act. In as much as in all cases concerned, including the case on hand, a benefit conferred under Section I3B of the Amended Act has been claimed by the respective dispossessed tenants, there could be no doubt that Section 108(3) squarely applied to the cases; and the express provision in Section 1(4) of the Temporary Act that 'upon the expiry of this Act, the provisions of Section 4 of the Interpretation and General Clauses Act, 1125 M. E. (7 of 1125), shall apply as if this Act had been repealed by an Act of the Kerala State Legislature' would not be a bar to the disposal of the case in accordance with the provisions contained in the Amended Act. This is also in consonance with the spirit and scheme of the enactments. We would do well not to lose sight of the fact that the provisions of Section 108(3) of the Amending Act are intended to take care of the cases not only of those on whom any benefit, right or remedy has been conferred by the Principal Act, but also of those on whom any benefit, right or remedy has been conferred by the Amended Act. Let us not also forget that it is impossible to conceive of proceedings pending at the commencement of the Amending Act in which any benefit, right or remedy conferred by the Amended Act had already been the subject-matter. In this view, we are in respectful agreement with the view expressed by Eradi J., (as he then was) in the Division Bench case in C. R. P. No. 261 of 1975.

13. Now remains the second point of law raised in the appeal: (a) Whether the amount representing the purchase money with interest thereon deposited by the respondents-tenants could be treated as sufficient compliance for an application under Section 6(2) of the Temporary Act; and (b) whether a deposit of purchase money with interest thereon made or deemed to have been made for the purpose of Section 6(2) of the Temporary Act would be sufficient for the continuance of the proceedings under Section 13-B of the Amended Act. In support of both these contentions, reliance is placed by the counsel for the appellant on the decision of the Supreme Court in Shri Vidya Prachar Trust v. Basant Ram, AIR 1969 SC 1273. That was a case in which the respondent before the Supreme Court sought to take advantage of a deposit made before the Senior Sub Judge for the purpose of Section 31 of the East Punjab Relief of Indebtedness Act, 1934, for the purpose of East Punjab Urban Rent Restriction Act, 1949, without making a deposit under Section 13 thereof before the Rent Controller. Allowing the appeal and referring to Section 31 of the Relief of Indebtedness Act, Hidayatullah, C.J., who delivered the judgment stated in paragraph 5, at page 1275, of the report as follows :

'The section, therefore, is intended to operate between debtors and creditors where difficulty in making the payment, either wholly or partly, may arise and the debtor wishes to save himself from interest which is running. The Act is not intended to operate between landlords and tenants; nor is the Court of the Senior Sub Judge created into a clearing house for rent. Although the general words 'any person who owes money' may appear to cover the case of a tenant, we have to look at the Act as a whole and see what kind of a person is intended thereby. The phrase must be read to cover cases of debtors and creditors between whom there is an agreement for payment of interest because the deposit is intended to stop interest from running.'

That this decision cannot be relied on to advance the argument regarding the deposit in the present case, is evident from a subsequent decision in Duli Chand v. Mohan Chand, AIR 1979 SC 1307. That decision distinguished the earlier decision of the Supreme Court in AIR 1969 SC 1273, and held as follows :

'Here, before us, the rent for the months of February, March and April, 1984 was deposited by the tenant to the credit of the landlord in the very Court of the Rent Controller in which the landlord subsequently filed the eviction petition. The deposit lying in the Treasury was in the legal custody and control of the Court of the Rent Controller, and at the first hearing, if not earlier, the landlord was informed that he was entitled to withdraw that deposit. Thus, even if the tenant had obtained the order of the Rent Controller for making the deposit, by referring to Section 31 of the Relief Act, the fact remained that the money was in custodia legis and could be ordered to be paid to the landlord there and then by the Court at the first hearing. It might have been different if the deposit had been made in some other Court.' This was a case in which the Supreme Court held that where the tenant had deposited the arrears of rent to the credit of the landlord by reference to Section 31 of theRelief of Indebtedness Act, 1934, in the very Court of the Rent Controller in which the landlord subsequently filed the petition for eviction, the tenant would be deemed to have complied with the requirement of the proviso to Section 13(2)(1) of the East Punjab Urban Rent Restriction Act, 1949, as the fact remained that the money was in custodia legis and could be ordered to be paid to the landlord there and then by the Court at the first hearing. It is rather strange that the respondents herein thought that for the purpose of an application under Section 47 or one under Order XXI Rule 90 of the Code of Civil Procedure, deposit of purchase money was necessary. Any way, that amount was already there in the very same Court in which subsequent relief under Section 6(2) of the Temporary Act was sought, and applying the principle of custodia legis to which reference is made by the Supreme Court in the decision above cited, it is beyond doubt that the requirements of Section 6(2) of the Temporary Act are satisfied.

14. Lastly, we have to consider the question as to whether the deposit made or deemed to have been made in an application under Section 6(2) of the Temporary Act could be treated as sufficient compliance for the purpose of Sub-section (2) of Section 13-B of the Amended Act. The argument advanced by the counsel for the appellant is that assuming that there was deposit accompanying the restoration application under Section 6(2) of the Temporary Act, that would not be sufficient compliance for the purpose of an application under Section 13B of the Amended Act, as, according to him, in terms of Sub-section (2) of that section, purchase money together with interest at the rate of 6% per annum till the filing of the application under the Amended Act should have been made, and the quantum of interest to be deposited would be more than that was deposited for the purpose of Section 6(2) application under the Temporary Act, before the coming into force of the Amending Act, whereas the application under Section 13-B of the Amended Act was required to be made only within six months from the commencement of the Amending Act. In our opinion, the clue lies in the very contention raised by the counsel himself. For the purpose of applications made after the coming into force of the Amending Act, the purchase money with interest up to the date of the application has to be made. That has to be so only in cases where after the commencement of the Amending Act, an application with reference to Section 13-B of the Amended Act was required to be made. In a case like the one on hand, in which an application was already there at the time of the commencement of the Amending Act, and that is by virtue of the provisions contained in the Amending Act, required to be disposed of in accordance with the provisions of the Amended Act, no fresh application or no fresh deposit is contemplated. For this view we take, we find support in the words of Eradi J. (as he then was) who spoke for the Division Bench in C.R.P. No. 261 of 1975, to which reference has already been made.

15. The counsel for the appellant submitted that the sum of Rs. 1580.32 stated to represent the purchase money ot Rs. 1427.60 and interest thereon fell short by 50 paise, and therefore, the requirement under Section 6(2) of the Temporary Act had not been complied with. The counsel for the appellant placed reliance on the decision of a Division Bench of the Allahabad High Court in Debi Prasad v. Kedar Singh, AIR 1921 All 280 and contended that however small the shortfall was unless the amount was exact, the deposit made could not be treated as sufficient compliance for the purpose of the benefit under Section 6(2) of the Temporary Act. The decision of the Allahabad High Court was in a case where a tender under Section 83 of the Transfer of Property Act was found to be insufficient and therefore it was found that the provisions of Section 84 of the Act with regard to the cessation of interest on the principal money from the date of the tender did not apply. We do not consider it necessary to investigate whether the implications of lender should be the same as that of deposit. Whatever that be inasmuch as the question of the correctness of the deposit made had never been in dispute till now, the appellant could not be allowed to spring a surprise on the respondents by raising that question for the first time in argument. Accordingly, we reject this contention also.

For the foregoing reasons, we dismiss the appeal, however, in the circumstances of the case, without any order as to costs.


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