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Kishan Lal Vs. Fakrudin - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 46 of 1950
Judge
Reported inAIR1952Raj93
ActsUnited State of Rajasthan Building (Lease and Rent Control) Ordinance, 1948 - Sections 7; Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 30
AppellantKishan Lal
RespondentFakrudin
Appellant Advocate Thanchand, Adv.
Respondent Advocate Chandmal, Adv.
DispositionAppeal dismissed
Excerpt:
.....of buildings in the neighbourhood, or (v) that the tenant has ceased to occupy the building for a continuous period of four mont (b) the controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the controller and if the controller is not so satisfied, he shall make an order rejecting the application:.....was promulgated by h. h. the raj pramukh of the former rajasthan known as the united states of rajasthan buildings (lease and rent control) ordinance, 1948 (no. xxii (22) of 1948), on 26th of july, 1948. the defendant relied on the provisions of the aforesaid ordinance for a further contention that the suit was not maintainable. the learned munsif found that the defendant was a tenant of the plaintiff but did not decide the other issues on a view that section 7 of the ordinance applied to the case and that the special rules and procedure prescribed in that section had not been complied with and the suit was, therefore, incompetent. he accordingly dismissed the suit with costs.4. on appeal, the learned district judge of chittor took the view that the ordinance came into force on the.....
Judgment:

Bapna, J.

1. This is the defendant's second appeal in a suit for ejectment against an order of remand.

2. The respondent Fakrudin sued the defendant-appellant in the Court of the Munsif, Chhoti Sadri for ejectment from a shop alleged to have been leased to the appellant by the respondent on Chait Sud 11 S. 2000. He also claimed Rs. 142/8/- as damages for use and occupation till the date of suit. The suit was instituted on the 31st of December, 1944. The defendant raised several pleas including (1) that the plaintiff was not the owner of the shop in dispute, (2) that the rent note had been got executed by the plaintiff by fraud and (3) that he was not liable to ejectment so long as he was ready and willing to pay the rent.

3. During the pendency of the suit, an Ordinance was promulgated by H. H. the Raj Pramukh of the former Rajasthan known as The United States of Rajasthan Buildings (Lease and Rent Control) Ordinance, 1948 (No. XXII (22) of 1948), on 26th of July, 1948. The defendant relied on the provisions of the aforesaid Ordinance for a further contention that the suit was not maintainable. The learned Munsif found that the defendant was a tenant of the plaintiff but did not decide the other issues on a view that Section 7 of the Ordinance applied to the case and that the special rules and procedure prescribed in that section had not been complied with and the suit was, therefore, incompetent. He accordingly dismissed the suit with costs.

4. On appeal, the learned District Judge of Chittor took the view that the Ordinance came into force on the 30th of July, 1948, and it did not affect the present suit which had been instituted on the 30th of December, 1944. The decision on the preliminary point was reversed and the case was remanded for decision on merits. The defendant has appealed against this order of remand under the provisions of Order 43, Rule 1 of the Civil P. C.

5. As the controversy hangs round the interpretation of Section 7, it would be useful to state its provisions. Section 7 of the Ordinance reads as follows:

'7 (1) Notwithstanding anything contained Eviction of tenants. in any contract, no Eviction of tenants. Court shall pass any decree or order in favour of a landlord whether in execution of a decree or otherwise and whether before or after the termination of the tenancy, evicting any tenant except in accordance with the provi-sions of this section:

Provided that nothing contained in this section shall apply to a tenant whose landlord is the Government of the United States of Rajasthan.

Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.

(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied:

(i) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, or

(ii) that the tenant has after the commencement of this Ordinance without the written consent of the landlord-

(a) transferred his right under the lease or sub-let the entire building or any portion thereof, or

(b) used the building for a purpose other than that for which it was leased, or

(iii) that the tenant has committed such acts of waste as are likely to impair materially the value or utility of the building, or

(iv) that the tenant has been guilty of such acts and conduct which are a nuisance to the occupiers of buildings in the neighbourhood, or

(v) that the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause, the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied he shall make an order rejecting the application.

(3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession

(i) in the case of a residential building ifhe required it for his own occupationand if he is not occupying a residential building of his own in the city,town or village concerned;

(ii) in the case of a non-residential building, if he is not occupying for purposes of a business which he is carryingon, a non-residential building in thecity, town or village concerned whichis his own or to the possession ofwhich he is entitled;

Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant the landlord shall not be entitled to apply under this sub-section before the expiry of such period:

Provided further that where a landlord has obtained possession of a building under this clause, he shall not be entitled to apply again under this clause-

(i) in case he has obtained possession of a residential building, for possession of another residential building of his own;

(ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own;

(b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application: Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate.'

6. The rest of the provisions of this section are not relevant in this case.

7. It is argued by learned counsel for theappellant that the provisions of Sub-section (1) areimperative and tantamount to a direction thatthe Court will refuse a prayer for ejectmentin pending suits or execution applications, andthe only mode in which ejection can be obtained is by following the procedure mentionedin Sub-sections (2) and (3) of Section 7,

8. The learned counsel for the respondent contended that the former Rajasthan Ordinance No. XXII of 1948 was enacted long after the suit had been filed and cannot have any retrospective effect. It was argued that it was a fundamental rule of interpretation that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction. In the Ordinance it is not specifically laid down that it will apply to pending suits and the procedure mentioned in Sub-sections (2) and (3) of Section 7 could only be availed of by landlords seeking to evict the tenant after the promulgation of the Ordinance. It was further contended that during the pendency of this second appeal, fresh legislation had been undertaken; the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950) was brought into force from 23rd of December 1950, and Section 30 thereof repealed the Rajasthan Buildings (Lease and Rent Control) Ordinance, 1948.

9. It was further argued by learned counsel for the respondent that under the Rajasthan. Premises (Control of Rent and Eviction) Act 1950, the restrictions as to eviction were only to be applicable in certain towns and cities of Rajasthan as were notified in the Gazette. These places had also been notified in the Gazette of 23rd December, 1950, but Chhoti Sadri had been left out. It is contended that the suit should now be decided on the merit unhampered by the previous restrictions laid down by the Rajasthan Buildings (Lease and Rent Control) Ordinance, 1948.

10. With respect to the last argument, it may be stated at once that while Section 30 of the Rajasthan Act XVII of 1950 repeals the Ordinance No. XXII of 1948 of the former Rajasthan there is a proviso to that section viz.,

'that anything done or action taken under the laws hereby repealed shall, until varied or superseded under the Act, continue and be deemed to have been done or taken as the case may be, under or in pursuance of this Act, as if it were then in force.'

Act No. XVII of 1950 also contains certain restrictions against eviction in Sections 13 & 14 of the Act. The action taken by the Munsiff in dismissing the suit was ostensibly under Section 7 of the Rajasthan Buildings (Lease and Rent Control) Ordinance, 1948, and if the action taken was correct, it would be saved under the proviso to Section 30 of the Act.

11. The crucial question, therefore, is whether the order of the Munsiff was correct and in accordance with the provisions of Ordinance No. XXII of 1948.

12. In order to find out whether the Ordinance XXII was retrospective in its effect, its language will have to be carefully considered. The preamble of the Ordinance shows that the intention of the legislature was to regulate the letting of residential and non-residential buildings and to control the rent for such buildings and to prevent unreasonable eviction of tenants therefrom in the United State of Rajasthan and Section 7 indicates that the Court is not to pass any decree in pending suits or to order eviction even in pending execution cases except in accordance with the provisions of the section. It is clear from the language used that the Ordinance was applicable not only to actions to be brought after the Ordinance but to actions which had already been brought and pending or even if they had been decreed.

13. The learned counsel for the appellant argued that the procedure to be followed by landlords seeking eviction had been provided in Sub-sections (2) and (3) of Section 7, which empowered the Controller to deal with such matters and, therefore, the jurisdiction of the civil Court had been taken away except in cases referred to in proviso 2 of Sub-section (1). It was contended that the only remedy which the plaintiffs or decree-holders in pending suits or execution applications could have was to withdraw their cases from the civil Courts and apply to the Controller in accordance with Sub-sections (2) and (3) or to the proviso to Sub-section (1) of Section 7 of the Ordinance.

14. The learned counsel assumes that the jurisdiction of the civil Courts is barred. But there is no section or provision in the Act which says so. On the other hand, Sub-section (1) of Section 7 only prohibits the Court from passing any decree or order of eviction except in accordance with the provisions of Section 7. The language seems to indicate that the legislature did not oust the jurisdiction of the civil Courts but made it subject 'to certain provisions mentioned in the section. It is settled Jaw that a statute is not to be construed so as to have a greater retrospective effect than its language renders necessary. The language used in the section does not take away the jurisdiction of the civil Courts altogether as al-ready stated. It is now to be seen whether and how far it can be exercised in accordance with the provisions of Section 7, as laid down in Sub-section (1).

15. The contention of the learned counsel for the appellant is that the words 'provisions of this Section' should mean the entire procedure laid down in the Section. But if the entire procedure is to be followed, it has to be pursued before a Controller according to Sub-sections (2) and (3) of Section 7 and the authority of the civil Court to direct eviction in accordance with the provisions of the Section becomes meaningless. It was argued that the jurisdiction of the civil Court was restricted to the cases referred to in proviso to Sub-section (1) after the plaintiffs had secured a certificate from the Controller. But obtaining of the decree alone will not help the landlord if no order of eviction can be made in execution of the decree which again is not authorised to be done in the said proviso to Sub-section (1).

16. In my opinion, the words 'provisions of this Section' in Sub-section (1) have to be libe-rally construed. The word 'provision' has not been defined in the Act. In Webster's International Dictionary, one of the meaning given to it is 'that which is stipulated in advance; a condition'. If the word 'provision' is construed as 'condition', a reasonable interpretation of Sub-section (1) can be easily made. The subsequent Sub-sections (2) and (3) as also the provisions of Sub-section (1) can be split up into two portions: one in which the conditions are given for ejectment and the other laying down the authority who can grant ejectment. The conditions for ejectment are for instance laid down in Clauses (i) to (v) of Sub-section 2 and in Clauses (i) and (ii) of Sub-section 3(a) as also in the proviso to Sub-section (1). In my opinion, the interpretation which would be most appropriate to Sub-section (1) would be that in the pending suits or in proceedings relating to execution of decrees, the civil Court, will be authorised to pass any decree or order in favour of a landlord, evicting any tenant whenever the conditions are proved to exist which may authorise the Controller to pass a similar order in cases which may be instituted before him after the promulgation of the Ordinance. This construction is harmonious as it purports to make Sub-section (1) effective to the same extent as the remaining portion of that Section.

17. The order of the lower Court that the Ordinance is not at all applicable having been promulgated after the institution of the suit is not correct. Similarly, the order of the trial Court that the civil Court has no jurisdiction to pass any decree after the Ordinance is also not correct. The correct interpretation of Sub-section (1) of Section 7 is as already been indicated above and the trial Court will now proceed to decide the case on merits. The order of remand of the first appellate Court cannot, thus, be set aside although for different reasons. The appeal is dismissed but the costs of this appeal and that of the lower Court will be costs in the cause.


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