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Seth Rajmal Vs. Dr. Krishan Swaroop - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 195 of 1953
Judge
Reported inAIR1957Raj118
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 14; Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1952; Code of Civil Procedure (CPC) , 1908; Transfer of Property Act, 1882 - Sections 106 and 116
AppellantSeth Rajmal
RespondentDr. Krishan Swaroop
Appellant Advocate R.K. Rastogi, Adv.
Respondent Advocate P.D. Mathur, Adv.
DispositionAppeal allowed
Cases ReferredSuraj Mal v. Sita Ram
Excerpt:
- - the language of section 14(1) is not happy. section 13, however, laid down a duty on the court not to pass a decree in favour of the landlord, unless it was satisfied that the premises were required reasonably and bona fide by the landlord for the use and occupation of himself or his family, in case the suit was brought for eviction on that ground. the landlord cannot be compelled to utilise the premises in the manner other than the one he would like to do himself......the notice to quit.the suit was contested by the defendant on a plea that no certificate from the rent controller had been obtained prior to the institution of the suit, as required by section 14(1) of the rajasthan premises (control of rent and eviction) act, 1950 (act no. xvii of 1950). he denied that the premises were required by the landlord reasonably and bona fide for his own use, and further he questioned the validity of the notice to quit.the trial court, after evidence, found that the premises were required reasonably and bona fide by the plaintiff for his own purposes, that the notice to quit was valid notice, and that the pre-requisite condition of obtaining a certificate from the rent controller had been done away with by a subsequent amendment of law by act no. ix of 1952,.....
Judgment:

Bapna, J.

1. This is a second appeal by the landlord in a suit for ejectment and arrears of rent.

2. The appellant landlord instituted a suit for ejectment on 16-10-1951, on the ground that the premises were required reasonably and bona fide for the use of the landlord. He claimed arrears of rent amounting to Rs. 125/- and Rs. 32/- on account of damages at the rate of Rs. 2/- per day on the expiry of the time limit contained in the notice to quit.

The suit was contested by the defendant on a plea that no certificate from the Rent Controller had been obtained prior to the institution of the suit, as required by Section 14(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950). He denied that the premises were required by the landlord reasonably and bona fide for his own use, and further he questioned the validity of the notice to quit.

The trial court, after evidence, found that the premises were required reasonably and bona fide by the plaintiff for his own purposes, that the notice to quit was Valid notice, and that the pre-requisite condition of obtaining a certificate from the Rent Controller had been done away with by a subsequent amendment of law by Act No. IX of 1952, brought into force from 29-3-1952, by which the provision for obtaining a certificate from the Rent Controller was deleted.

It gave a decree for arrears of rent and damages amounting to Rs. 133/-, and ordered eviction of the defendant. The defendant filed an appeal only as regards the order for ejectment. The learned Senior Civil Judge, who heard the appeal, was of opinion that the obtaining of the certificate from the Rent Controller being a necessary condition for the institution of the suit, the plaintiff was not competent to institute the suit on 16-10-1951, and that the subsequent amendment did not improve his position. He accordingly allowed the appeal, and dismissed the suit as regards his prayer for ejectment of the defendant. The plaintiff landlord has come in second appeal.

3. It may be mentioned that the law inforce on 16-10-1951, was the Rajasthan Premises(Control of Rent and Eviction) Act, 1950 No XVIIof 1950) as it stood unamended by Act No. IX of1952. Under Section 14(1) of that Act it was laid downthat:

'Nothwithstanding anything contained in this Act or any other law, no suit for the eviction of a tenant on any ground other than those specified in Clauses (a) to (g) of sub-section CD of Section 13 shall be filed in any Court unless the landlord has, upon an application made by him, obtained a certificate from the Controller in that behalf.'

A prayer for eviction on the ground of personal necessity is mentioned in Clause (h) of Sub-section (1) of Section 13 and it was, therefore, a class of suit, for which the obtaining of the certificate of the Rent Controller was necessary before the institution of the suit. The language of Section 14(1) is not happy.

It says that no suit shall be filed unless the landlord has obtained a certificate in the particular class of cases. There can be no restriction as to the filing of a suit, because that depends upon the will of any suitor, but what the section intends is that such a suit would not be maintainable. I interpret the said section accordingly. Section 13, however, laid down a duty on the court not to pass a decree in favour of the landlord, unless it was satisfied that the premises were required reasonably and bona fide by the landlord for the use and occupation of himself or his family, in case the suit was brought for eviction on that ground.

Under the law, therefore, there was duplication of procedure, inasmuch as while the plaintiff had first to satisfy the Rent Controller in that behalf, and obtain a certificate, that certificate did not relieve the court from satisfying itself on evidence that the premises were required reasonably and bona fide by the landlord for the use and occupation of himself or his family. This has been so held in more than one case decided by this Court, Kajod Mal v. Baluram 1955 Raj LW 117 (A).

4. By the Amendment Act No. IX of 1952, Sub-section (1) of Section 14, was deleted, which meant that the duplication of procedure was avoided, and the court alone was entrusted with the task of finding out the bona fides of the plaintiff where the claim was for ejectment of the tenant on the ground of personal necessity of the landlord. The law relating to control of rent and eviction was enacted to restrict the contractual rights and the remedies available to a landlord by the ordinary law relating to landlord and tenant. Section 14 was one of the impediments to the institution of a suit, and while the court could no doubt in the present case throw out the suit on the non-production of the certificate of the Rent Controller, when the suit was instituted, the position became changed when the law, which required the obtaining of the certificate, was repealed during the pendency of the suit.

The Amendment Act was enacted virtually for removing of a defect in law and making the procedure more simplified, and was in the nature of a remedial statute. The condition of obtaining a certificate from the Rent Controller was not a vested right in the tenant, but was only a procedural matter making it obligatory on the plaintiff to follow a certain procedure before he came to court.

The right of the defendant, which was conferred upon him by Section 13 was not affected by the grant of a certificate by the Rent Controller, for, even if the Controller did grant a certificate, the defendant still could put the plaintiff to the proof of his bona fides in court. An amending statute which is remedial in its nature has to be construed as being retrospective and applicable to pending suits. I am supported in this view by a recent decision of the Orissa High Court in Raghu Nath Ray v. Nityananda Sahu AIR 1956 Orissa 175 (B). Learned counsel for the respondent relied on T. Gupta Chowdhury v. Manamatha Nath Ghatak AIR 1949 Cal 674 (C) and Prafulla Kumar Dutta v. Guiram Tat AIR 1953 Cal 544 (D) wherein the opposite view has been taken. With great respect I am unable to agree with the view taken in these two cases that the necessity of obtaining a certificate from the Rent Controller was something of a vested right in the defendant. I am, therefore, of opinion that the non-production of the certificate from the Rent Controller was a defect which affected the maintainability of the suit at its inception, but the deletion of Sub-section (1) of Section 14 by the Amendment Act, IX of 1952, cured the defect, and did away with the necessity of obtaining the certificate, and the amendment applied retrospectively to pending suits. The decision of the lower court is not correct.

5. Learned counsel for the respondent next tried to support the judgment of the lower courton two further grounds. Firstly, it was urged that the plaintiff had claimed the relief of ejectment on the ground that the premises were required by the plaintiff for his own use. It was argued that the plaintiff had ample property in his possession, and the necessity of finding an office for the son of the plaintiff, who was a pleader, could be met by utilising one of the rooms already in the possession of the plaintiff.

The plaintiff's case was that all the rooms in his possession were in the upper storey, and the requirement was for an office to be kept in the lower storey, and that there was 110 other suitable place except the premises in dispute which could be so utilised. The requirement of an office for the son of the plaintiff who is a lawyer of about six years' standing is not disputed. The point urged is that this accommodation could be found in one of the apartments already in the possession of the plaintiff, the plaintiff has disclosed the unsuitability of any of the rooms in his possession.

He said that his son's office has to be separate from the Zenana apartments, and that it is more convenient to have it in the lower storey separate from the residential portion. The requirement of the plaintiff is bona fide.

6. It was next contended that the requirement of the office could also be met by taking away only one room from the defendant. This is not correct, for it all depends upon the standing, equipment and necessity of the lawyer as to how many rooms would be required by him. Further ah that has got to be shown is that the present accommodation of the plaintiff is not sufficient and that he requires the premises now let to the tenant for his own purpose. The landlord cannot be compelled to utilise the premises in the manner other than the one he would like to do himself. The plea that the plaintiff does not require the premises reasonably and bona fide for his own use has no force.

7. It was finally contended that the notice of ejectment was not according to law. The plaintiff had pleaded in his plaint that the tenancy began on 12-1-1942, and the document of lease was executed on 16-3-1942 and the term regarding the notice for ejectment was that the landlord should give information to the tenant a month in advance of the date on which he is required to vacate it.

The plaintiff alleged that he accordingly gave a month's notice to vacate the premises on 18-8-1951. The defendant did not dispute the term as stated in the plaint specifically, but only said that he could not give any answer because the copy of the rent deed was not with him. In the additional pleas he stated that the notice was not sufficient in law to determine the tenancy. It was not specifically disclosed in what manner the notice was deficient.

At the time of argument it seems to have been argued on behalf of the defendant that the notice did not end with the month of the tenancy, as was required by Section 106 of the Transfer of Property Act. As laid down in a Division Bench decision of this Court in Suraj Mal v. Sita Ram (S) AIR 1955 Raj 1 (E), to which I was a party section 106 of the Transfer of Property Act does not apply where there is a contract to the contrary. In the present case, the deed of lease dated 16-3-1952, which was admitted by the defendant, contained a provision of information to the lessee one month in advance to vacate the premises. As held in the aforesaid case, this was contract to the contrary, and one month's notice which was given in this case was sufficient for determination of the tenancy.

8. It was urged by learned counsel for the respondent that the original notice was not produced by the defendant, and so it could not be said that it was for a month. It need only be said that the notice was in the possession of the defendant, and if he thought that it was not according to the terms agreed upon, he should have produced it, and should have pleaded that the notice was not according to the agreed terms.

9. It was finally argued that the original tenancy had come to an end when the rent was increased from the stipulated rent of Rs. 11/-P.M. in the rent deed to Rs. 15/- P.M. and as no document of lease came into existence subsequently the provisions of Section 106 of the Transfer of Property Act came into full Play. The argument has no force. The original deed of lease was for three years. Under Section 116 of the Transfer of Property Act, the tenant was the person holding over after the expiry of that period, if he did not settle fresh terms of the lease.

Under Section 106, the nature of the tenancy became from month to month, but all other terms of the original tenancy applied to the tenancy, which was brought about by holding over. The original term, as stated above, was for information to be given to the tenant one month before the landlord required the premises to be vacated.

10. There is no force in any of the points raised by learned counsel for the respondent. The appeal is, therefore, allowed, the judgment and decree of the court below are set aside, and that of the trial court restored with costs throughout.

11. Learned counsel for the respondent praysfor leave to appeal to a Division Bench. Theprayer is rejected.


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