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Smt. Kishan Pyari Vs. Smt. Shanti Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 501 of 1976
Judge
Reported inAIR1978Raj9; 1977()WLN1
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 14(2) and 14(3); Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976
AppellantSmt. Kishan Pyari
RespondentSmt. Shanti Devi
Appellant Advocate P.C. Mathur and; M.L. Johri, Advs.
Respondent Advocate M.L. Kalla and; Narendra Vyas, Advs.
DispositionRevision dismissed
Cases ReferredPrabhashanker v. Rukmani
Excerpt:
.....court refused to draw this inference by considering the implication that if the provision was held retrospective, inevitably all pending actions in which landlords may have applied for possession of their buildings let out to the tenants under the provisions of section 13 (3) (a) (iii) as it stood before the amendment would automatically fail because they would not satisfy the tests imposed by the amended provision. 15. it is also instructive to note that by the amendment act no, 14/76 a new sub-section (2) has been added in section 14 of act which reads that no decree for eviction on the grounds set forth in clause (h) of sub-section (1) of section 13 shall be passed if the court is satisfied that. in that context it is not understood why when the legislature was deliberately using..........court refused to draw this inference by considering the implication that if the provision was held retrospective, 'inevitably all pending actions in which landlords may have applied for possession of their buildings let out to the tenants under the provisions of section 13 (3) (a) (iii) as it stood before the amendment would automatically fail because they would not satisfy the tests imposed by the amended provision. if such a drastic consequence was really intended by the legislature it would certainly have made appropriate provisions in express terms in that behalf.'14. it consequently held that the amendment cannot apply to proceedings which were pending either before the controller or before the appellate authority at the time when the amendment was made. in bulidan singh v......
Judgment:
ORDER

Rajindar Sachar, J.

1. Whether an amendment made by incorporating Sub-section (3) in Section 14 of Raiasthan Premises (Control of Rent and Eviction) Act hereinafter to be called 'the Act', by means of Ordinance 26 of 1975 as replaced by Amendment Act 14 of 1976 will apply to suits for eviction which had been filed before the coming into force of the said amendment is the question that calls for decision in the present revision petition.

2. Section 13 (1) (h) of the Act provides that no court shall pass any decree, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant unless it is satisfied that the premises are required reasonably and bona fide by the landlord for the purposes mentioned therein. This provision applies equally to premises let out for residential as well as commercial or business purposes.

3. On 30-3-72 the premises in dispute were let out to the petitioner-tenant. On 7-2-75 the respondent-landlord filed a suit under Section 13 (1) (h) of the Act on the allegation that he required the premises for his own personal bona fide use. It is common ground that the premises were let out for commercial and business purposes. During the pendency of the suit the Act was amended by Act No. 14/76 and Sub-clause (3) was added in Section 14 of the Act which is as under :--

'14 (3) Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in cl. (h) of Sub-section (1) of Section 13 before the expiry of five years from the date the premises were let out to the tenant.'

4. As admittedly the letting out of the premises in dispute was within a period of 5 years from the filing of the suit the petitioner raised an objection before the trial court that the suit was not maintainable because of the amendment made by the Act No. 14/76. The plea has been negatived by the trial court by its order of 14-8-76 by which it has held that there is no bar to the maintenance of the suit as the amendment is not applicable to pending suit. Aggrieved against that the petitioner ha* filed this revision to this court.

5. The suit has still to be decided en merits. The petitioner-tenant is not accepting the allegation that the respondent-landlord requires the premises bona fide for his personal use. In view of the fact that the suit is still pending, normally I might have been disinclined to entertain the revision petition as, according to me, it is doubtful whether a revision would lie at the. interlocutory stage. But 1 am told that a number of similar petitions have already been admitted in this Court. Not only that, I am given to understand by the counsel for the parties that identical objections are being raised in the lower courts in a number of pending suits. In that view of the matter as this point raises undoubtedly a matter of interpretation and could have relevancy to a large number of pending matters, I thought it fit to hear arguments on merits so that the decision as to the effect of Section 14 (3) of the Act could be given by this Court.

6. The controversy lies in a very narrow compass. The petitioner tenant's case is that even if a suit had been filed earlier to the incorporation of Section 14 (3) the suit cannot continue as 5 years period admittedly has not expired from the date of the letting of the premises. The counsel for the respondent however maintains that the said amendment is prospective and will only apply to the suits which are filed after the amendment was brought into force i, e, from the commencement of the Ordinance No. 26 of 1975 (which came into force on 29-9-75) and which Ordinance was later on replaced by the Amendment Act No, 14/76. It is well settled that though the legislature is undoubtedly competent to take away vested rights by means of retrospective legislation, yet unless a clear and unambiguous Intention is indicated by the legislature by adopting suitable express words in that behalf, no provision of a statute should be given retrospective operation if by such operation vested rights are likely to be affected. Retrospective operation of a statutory provision can be Inferred even in cases where such retrospective operation appears to be clearly implicit in the provision construed Tn the context where it occurs. See Rafiquennessa v Lal Bahadur Chetri (ATR 1964 SC 1511). In that case the effect of amendment in Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 came up for consideration. Section 5 (1) provided that notwithstanding anything in any contract or in any law for the time being in force-- (a) where under the terms of a contract entered into between a landlord and his tenant whether befora or after the commencement of this Act, a tenant is entitled to build, and pursuance of such terms actually within the period of five years date of such contract, a permane ture on the land of the tenancy for dential or business purposes, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent. The Supreme Court held this provision to be retrospec-tive because the provision clearly indi-cated that the legislature wanted the beneficent provisions enacted by it to take within their protection not only leases executed after the Act came into force, but also leases executed prior to the operation of the Act. The Supreme Court in support of its finding that this provision was retrospective noted that Section 5 (1) of the Act provides that the tenant shall not be evicted by the landlord from the tenancy and observed that if the legislature had intended that this protection should operate prospectively, it would have been easy to say that 'the tenant shall not be sued in eject-ment; such an expression would have indicated that the protection is afforded to suits brought after the Act came into force and that might have introduced the element of prospective operation; instead what is prohibited by Section 5 (1) (a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by Section 5 (1) (a) though they may have been initially instituted before the Act came into force. It is important to note that the Supreme Court made a distinction between the words 'tenant shall not be ejected' by holding them to indicate retrospective operation and the words 'tenant shall not be sued in ejectment' to mean prospective operation.

7. In Mohanlal v. Sawai Man Singhji (AIR 1962 SC 73) the Supreme Court was interpreting the effect of Section 86 of Code of Civil Procedure which was made applicable to former Rulers of Indian States by virtue of Section 87B of C.P.C. Section 86(1) provided that no ruler of a foreign State may be sued in any court except with the consent of the Central Government. In that case a suit had been filed earlier to the enactment of Section 87B, C.P.C. and the question was whether a suit which had been filed earlier against without sanction of Central could be continued after the coming into force of the said provi-sion, in that context the court observed that the ward 'sued' means not only the filing of a suit but also pursuit through courts and person is sued also when the suit remains pending against him and the words 'may sue' include not only the initiation of a suit but its continuation also. In that context it held that prohibition after the enactment of Section 87B, C.P.C. affects not only a suit instituted after its enactment but one which though instituted before its enactment is pending and becomes incompetent agaimt the ex-ruler. It is to be noted that that case went on the wording of 'may sue' and also in the special context of necessity of prior sanction from the Central Government being necessary to file the suit.

8. In Chandrasingh Manibhai v. Sur-jit Lal (AIR 1951 SC 199) the Court was interpreting Section 12 (2) of Bombay Act No. 57 of 1947 which provided that (at p. 200) :--

'No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106, T. P. Act, 1832.'

9. The Supreme Court in interpreting that provision observed (at p. 201):

'Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force. It cannot apply to suits which were already pending when the Act was put on the statute book.'

10. This position was reiterated in S. B. K. Oil Mills v. Subhash Chandra AIR 1961 SC 1596. Mr. Mathur had however sought to rely on the observations of the court in this case by which it had held Section 12(1) of Bombay Act 57 of 1947 to be retrospective. I do not think Mr. Mathur can derive any assistance from that case. It is to be seen that the Court itself highlighted the distinction between S.12 (1) and Section 12 (2) by pointing out that Section 12 (1) says that a landlord shall not be entitled to recovery of possession and therefore it means that no decree can be passed granting possession to the landlord if the tenant fulfils the conditions mentioned in Section 12 (1). It is to be noted that the Supreme Court relied on the differences in phraseelogy by pointing out that Section 12 (1) enacts that a landlord shall not be entitled to the recovery of possession and not (sic) shall be instituted by the landlord to re-cover possession', and held the former expression to denote retrospective operation and the latter expression to de-note prospective operation.

11. Mr. Mathur made a refere B. Banerjee v. Anita Pan (AIR 1975 1146). In that case the amendment brought by Section 13 (3A) came up for con--sideration and it was held by a majority that it was retrospective in operation. It has however to be seen that this clause was given a retrospective effect specifically by Section 13 of the Amendment Act by providing that it shall apply to suits including appeals which are pending at the commencement of the Act. The question was whether the retrospective operation was ultra vires the Articles 14 and 19 and the majority of the Court rejected this plea. This case has no applicability.

12. Mr. Calla, the counsel for the respondent referred to Kasibai v. Mahadu (AIR 1965 SC 703). In that case Civil Procedure Code was made applicable in the State of Hyderabad from 1-4-1951. A suit had earlier been filed in the State of Hyderabad under the Hydearbad Code in which a second appeal lay even on facts. The question before the Supreme Court was whether after 1-4-51 when the Civil Procedure Code had been made applicable in Hyderabad State, the second appeal will be governed by the Hyderabad Code of Civil Procedure or by the Civil Procedure Code. The Supreme Court held that as the suit had been filed earlier to the coming into force of Section 100, C.P.C. the power of the High Court in dealing with such second appeal would have to be seen with reference to the Hyderabad Civil Procedure Code and the restriction could only apply to cases instituted after 1-4-51.

13. In Moti Ram v. Suraj Bhan (AIR 1960 SC 655) an application for ejectment was filed on 28-8-56 on the basis of unamended Section 13 (3) (a) (Hi) of East Punjab Rent Act, which provided for recovery of possession of building by landlord if he required it for reconstruction, Before however a written statement could be filed the Act was amended in September, 1956. By the amendment this provision was substantially modified and provided that in the case of any building if he requires it to carry(sic) building work at the instance of Government or local authority, (sic) It was common case that if the amended provision applied to the suit the landlord would not be entitled to obtain any order of ejectment. The Supreme Court observed that the Amending Act does not make the relevant provision re-trospective in terms and it saw no reason to accept the suggestion that the retrospective operation can be spelled out as a matter of necessary implication. The Supreme Court refused to draw this inference by considering the implication that if the provision was held retrospective, 'Inevitably all pending actions in which landlords may have applied for possession of their buildings let out to the tenants under the provisions of Section 13 (3) (a) (iii) as it stood before the amendment would automatically fail because they would not satisfy the tests imposed by the amended provision. If such a drastic consequence was really intended by the Legislature it would certainly have made appropriate provisions in express terms in that behalf.'

14. It consequently held that the amendment cannot apply to proceedings which were pending either before the Controller or before the appellate authority at the time when the amendment was made. In Bulidan Singh v. Pitar Em-menual (1969 WLN 472) (Raj) a suit had been filed for compensation against the defendant for having caused the death of the deceased by his negligent driving. The suit had been filed in the civil court, During the tendency of the suit State Government under Section 110 of the Motor Vehicles Act constituted a tribunal; Section 110-F of the Motor Vehicles Act provided that where any tribunal has been constituted no civil court shall have jurisdiction to entertain any question re-lating to any claim or compensation. A question was raised whether in view of Section 110-F pending proceedings before the civil court could be continued. Tyagi, J. (as his Lordship then was) held that as the suit was instituted earlier to the constitution of the Tribunal the civil courts were competent to continue with that suit. His Lordship said that Section 110-F which says that no civil court shall have jurisdiction to entertain any question relating to claim for compensation did not mean that no civil court shall have jurisdiction to maintain or continue with the suit and that it only means that no civil court shall have jurisdiction to entertain a suit in its inception. Section 1 of tha Gaming Act 1922 which provides that no action for recovery of money under Section 2 of the Act shall be entertained in any Court was not held to be retrospective in regard to action which had commenced before passing of the Act-- See Bcadling v. Goll ((1922.) 39 TLR 128). Similarly the Court of Appeal in (1909) 1 KB 310 in interpreting Section 4 of the Trade Disputes Act 1906 which enacted that 'an action of Tort against the Trade Union shall not be entertained in any Court' held that it did not prevent a Court from disposing of an action begun before the passing of the Act. One of the meanings given to the word 'lie' in Webster's 3rd International Dictionary is sustainable or admissible. This obviously means that it has to be seen at the time when the suit was instituted.

15. It is also instructive to note that by the Amendment Act No, 14/76 a new Sub-section (2) has been added in Section 14 of Act which reads that no decree for eviction on the grounds set forth in Clause (h) of Sub-section (1) of Section 13 shall be passed if the court is satisfied that.....'

16. This Sub-section (2) of Section 14 has been held to have retrospective operation in Prabhashanker v. Rukmani (AIR 1976 Raj 17). But it is of significance that in Sub-section (3) brought in by the amendment, similar words have not been used and instead it has been provided that 'no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant'. Obviously the different phraseology seems to negative the contention of Mr. Mathur that even though there is no express provision making Sub-section (3) of Section 14 retrospective it must be read as having retrospective operation by necessary implication. No doubt it is true that the Act is a piece of beneficial legislation for the benefit of the tenants. But one can only read a retrospective operation by necessary implication if intention of the legislation leaves no manner of doubt that though it had not stated so expressly the context leaves no doubt that the legislature was wanting the said provision to be made retrospective. In that context it is not understood why when the legislature was deliberately using the words 'no decree for eviction shall be passed' in Sub-section (2) of Section 14, it did not choose to use the same expression and language In Sub-section (3), but instead deliberately used an expression like no suit for eviction 'shall lie' against a tenant which strongly points to prospective operation. It is important to remember that both Sub-sections (2) and (3) of Section 14 of the Act are dealing with eventualities of landlord wanting the eviction against a tenant on the grounds set forth in Clause (h) of Sub-section (1) of Section 13 of the Act. The difference in language clearly indicates that the legislature under Sub-section (3) of Section 14 was intending to bar the filing of a suit subsequent to the date of the amendment and was not contemplating that a suit which had already been filed would be affected by the amendment. To accept the argument of Mr. Mathur, counsel for the petitioner, that the words 'no suit shall lie' should be given retrospective operation would mean reading it as 'no decree shall be passed'. This would clearly not be permissible, one must accept that the legislature has advisedly used different phraseology in Sub-section (2) and Sub-section (3) of Section 14 of the Act and that they mean different things. This is one more reason why Sub-section (3) of Section 14 of the Act cannot be held to be retrospective.

17. I would therefore hold that Section 14 (3) of the Act as amended by the Amendment Ordinance, 1975 and replaced by the Amendment Act No. 14 of 1976 is prospective in operation and cannot apply to suits which had already been filed before the coming into force of Ordinance 26/75. In that view no fault can be found with the decision by the trial Court and I would therefore dismiss the revision petition.

18. The result is that revision petir tion fails, but as the point has arisen for the first time there will be no order as to costs.


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