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Jaipur Metal and Electrical Ltd. Vs. Ambey Prasad - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 52 of 1966
Judge
Reported in1970WLN755
AppellantJaipur Metal and Electrical Ltd.
RespondentAmbey Prasad
DispositionAppeal dismissed
Cases ReferredShah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Singh
Excerpt:
.....amending act' have to be read along with the explanation which defines 'proceeding' as meaning a suit appeal or application for revision. this makes it clear that the decree means the decree to be passed by the court where the proceeding is pending when the act comes into force.;(c) rajasthan premises (control of rent and eviction) act 1950 - section 13a--whether section 13a is hit by article 19 of the constitution of india.;so long as the appeal is pending the rights of the old tenant are in suspension and whosoever accepts the tenancy of the premises during the pendency of the appeal does so subject to the provisions of section 52 of the transfer of property act the provision, in our opinion, is reasonable and in public interest. - section 2(k), 2(1), 7 & 40 & juvenile justice (care..........amending act' have to be read along with the explanation which defines 'proceeding' as meaning a suit, appeal or application for revision. this makes it clear that the decree means the decree to be passed by the court where the proceeding is pending when the act comes into force.8. the last contention is that section 13a is hit by article 19(i)(f) of the constitution. the argument in this connection, is that it is not reasonable or in public interest to displace a new tenant who has since taken over possession after the eviction of the previous tenant. our reply to this is that so long as the appeal is pending the rights of the old tenant are in suspension and who soever accepts the tenancy of the premises during the pendency of the appeal does so subject to the provisions of section.....
Judgment:

Jagat Narain, C.J.

1. This is an appeal by the landlord plaintiff, by special leave, against the judgment of a learned single, Judge, allowing the second appeal filed by the tenant defendant against an appellate decree of the Senior Civil Judge, Jaipur City.

2. The facts are briefly these. The plaintiff is the owner of a shop situate in Jaipur City. Ambey Prasad respondent was its tenant. He committed default in payment of rent and, on 6/4/58, the plaintiff brought the present suit for ejectment against him. The suit was decreed by the trial court on 28.2.59. An appeal against the decree was rejected on 12.7.61. On 19.9.61 he filed a second appeal in the High Court. On 20.9.61 a stay order was passed which was vacated on 8.1.62. Three months time was given to the defendant to vacate the shop. The defendant was actually evicted from the shop in the year 1962, sometime after 8.4.62.

3. During the pendency of the appeal, the Rajasthan Premises (Control of Rent and Eviction) (Amendmen) Act,No.l2 of 1965came into force with effect from 9.6.65. On 8.7.65, the defendant filed an application to High Court u/sl3A for determining the rent etc. payable by him under the provisions of that section in order that the decree against him may be set aside. The learned single Judge held that Section 13A was applicable to the case and he set aside the decree for ejectment, and remanded the case to the trial court for determining the amount payable by the tenant under Section 13A and to dispose of the suit in accordance with the provision thereof. The learned single Judge followed his own earlier decision in Vassumal v. Sampatmal Lodha (S.B. Civil Regular Second Appeal No. 331 of 1965 decided on 22nd November, 1965) and the decision of another learned single Judge in Chunnilal v. Vaspujaiji Maharaj 1966 RLW 285

4. Having heard learned counsel for the parties we are of the opinion that the view taken by the learned single Judge is correct. We proceed to give our reasons briefly along with the contentions put forward on behalf of the appellant.

5. The first contention on behalf of the appellant is that the defendant was not a tenant within the meaning of the expression as defined in Section 3 (vii) of the Rajasthan Premises (Control of Rent Eviction) Act, 1950 (hereinafter referred to as the Act). This definition runs as follows:

'Tenant' means the person by whom the rent is, or but for a contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant, or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act.

The first argument is that rent was not payable by the defendant on the date of the application as he was not in possession. The second argument is that the contractual tenancy of the defendant having been terminated by a valid notice he did not remain a tenant within the meaning of the definition any longer and rent was not payable by him. In support of this argument, reliance is placed on Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and Ors. : [1964]4SCR892 . The third argument is that he does not come under the last portion of the definition as he is not continuing in possession.

6. In our opinion, none of these arguments has any force. A suit is decided on the basis of rights of the parties on the date of the suit and, therefore, the dispossession during the pendency of an appeal is of no consequence. The doctrine of Lis Pendens contained in Section 52 of the Transfer of Property Act is fully applicable in the present suit. The facts in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Singh : [1962]2SCR159 are distinguishable. In the last portion of the definition the words 'otherwise than under the provisions of the Act' qualify the words' termination of a tenancy in his favour'.

7. The second contention on behalf of the appellant is that Section 13A is not applicable to a case where a decree has been passed by any of the lower courts. In our opinion, Section 13A has to be read in the context of the Act and the words 'no court, in any proceeding pending on the date of commencement of the amending Act' have to be read along with the explanation which defines 'proceeding' as meaning a suit, appeal or application for revision. This makes it clear that the decree means the decree to be passed by the court where the proceeding is pending when the Act comes into force.

8. The last contention is that Section 13A is hit by Article 19(i)(f) of the Constitution. The argument in this connection, is that it is not reasonable or in public interest to displace a new tenant who has since taken over possession after the eviction of the previous tenant. Our reply to this is that so long as the appeal is pending the rights of the old tenant are in suspension and who soever accepts the tenancy of the premises during the pendency of the appeal does so subject to the provisions of Section 52 of the Transfer of Property Act. The provision, in our opinion, is reasonable and in public interest.

9. We accordingly dismiss the special appeal with costs. Leave to appeal to the Supreme Court is prayed for but is declined,


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