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Bhagwandas and ors. Vs. Kanmal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 694 of 1974
Judge
Reported in1976WLN75
AppellantBhagwandas and ors.
RespondentKanmal
DispositionAppeal allowed
Cases ReferredIn Prabhashanker v. Smt. Ruksmani and Ors.
Excerpt:
.....of section 14(1) & (2) have retrospective effect and apply to pending appeals.;the decree passed by the first appellate court has not become final between the parties as it has been challenged in appeal. the amendment of section 14 of the act no. xvii of 1950 has come into force during the pendency of the suit at the appellate stage. order 41, rules 33 and 35 civil procedure code provide for passing of a decree at appellate stage. the decrees are passed not only by the trial court but by the appellate courts also. the decree of the lower court merges into the decree passed by the appellate court. the only decree capable of execution is the final decree in the case whether by the trial of the appellate court. sub-section (sic) of section 14 of the act no. xvii of 1950..........document comes into existence. the words of the section we are concerned with speak of a suit pending on the commencement of the act and it means a live suit whether in the court of first instance or in an appeal court where the judgment of the court of first instance is being considered, it only excludes those suits in which nothing further needs to be done in relation to the lights or claims litigated because an executable decree which may nor be reopened is already in existence.12. besides this, i have no doubt that the provisions of sub-sections (1) and (2) of section 14 of act no. xvii of 1950 as amended by the ordinance no. 26 of 1975 have retrospective operation and are applicable to the pending appeals. but even if it is held that the language used in this section is.....
Judgment:

M.L. Shrimal, J.

1. This is the defendant tenant's second appeal arising out of a suit for ejectment based on personal necessity.

2. The demised premises out of which the defendant was sought to be ejected is situated in Naya Bazar, Ajmer. The learned Munsiff, Ajmer after framing issues and recording the evidence of the parties and hearing the argument deceased the suit in favour of the plaintiff by his judgment and decree dated November 25, 1972 In appeal the said judgment & decree were affirmed. The aggrieved tenant has filed this appeal.

3. During the pendency of this second appeal in this Court the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (hereinafter referred to as ''Act No. XVII of 1950') was amended by the Rajasthan Premises (Control of Rent and Eviction) Ordinance No. 26 of 1975 (hereinafter termed as 'Ordinance No. 26 of 1975).

4. The learned Counsel for the appellant has urged that in view of the amendment of Section 14 of the Act No. XVII of 1950 the decrees passed by both the courts below cannot be upheld, because they were passed only on the ground of reasonable, bonafide and personal necessity of the landlord, and comparative hardship to the landlord tenant was not considered.

5. The rule of construction being that the statute should be construed with reference to the Other provisions of the Act so far as possible to make a consistent enactment of the. whole statute. Now I shall read the relevant provisions of the law:

Rajasthan Premises (Control of Rent and Eviction) Act, 1950.

13. Eviction of tenants - (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready add will ting to pay rent therefor to the full extent allowable by this Act, unless it is satisfied..

(h) that the premises are required reasonably and bonafide by the landlord.

(i) for the use or occupation of himself or his family, or.

(ii) for the use of occupation of stay person for whose benefit the premises are held, or.

(iii) for a public purpose, or.

(iv) for philanthropic use; or.

14 Restrictions on eviction:

(1) No decree for eviction on the ground set forth in Clause (b) of Sub-section (1) of Section 13 shall be passed unless the Court is satisfied, after taking all facts and circumstances into confederation, that it is reasonable to allow such eviction.

(2) No decree for eviction on the ground set forth in Clause (b) of Sub-section (1) of Section 13 shall be passed if the court is satisfied that, having regard to all the circumstance of the case including the question Whether other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect or such part only.

(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 Clause (b) of Sub-section (1) of Section 13 before the expiry of five years from the date the premises were let out to the tenant..

27. Provisions, for pending matters.(1) In all suits for eviction of tenant from any premises in areas to which this Act has been extended under Section 2, pending on the date specified in the notification under that section, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 13 and under the circumstances specified in this Act.

6. Section 12(1) of the Bombay Rents and Lodging House Rates (Control) Act, 1947, reads as under:

A landlord shall not be entitled to the recovery of possession of any, premises so long as the tenant pays, or is ready & willing to pay, the amount, of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.

7. A perusal of the above sections reveals that the effect of the amend-event in Section 14 is that if, a landlord required the demised premises reasonably and bonafide for the use and occupation for himself or for his family he could obtain a decree for eviction of a tenant but after the amendment the court will have to further examine the question of comparative hardship of the landlord and the tenant before passing a decree for eviction against the tenant.

8. The short question which is required to be determined for the decision of the appeal is whether the provisions of Section 14(2) of the Act No. XVII of 1950 as amended by Ordinance No. 26 of 1975 shall apply to the pending appeals or not Section 14 of the Act No. XVII of 1950 as amended by Ordinance No. 26 of 1975 contemplates additional restrictions against eviction. The condition precedent to the coming into operation of Section 14(1) and (2) is that the requirements of Sections 13(1)(b) and 13 (1)(h) must be satisfied. Sub-section (1) and (2) of Section 14 bar the passing of the decree whereas Sub-section (3) of Section 14 bars the institution of the suit. The use of different words in the same section by the legislature is not without significance. The reason is obvious, Sub-sections (1) and (2) of Section 14 have been given retrospective operation and Sub-section (3) is prospective in its effect The words 'landlord shall not be entitled to the recovery of possession of the premises' appearing in Section 12(1) of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to the 'Bombay Act') came up for interpretation before their Lordships of the Supreme Court in S.B.K. Oil Mills v. Subhash Chandra : [1962]2SCR159 . Their Lordships were pleased to equate these words with the word 'no decree can be passed granting possession of the premises' and were pleased to contrast those words with the word 'no suit shall be instituted' Section 12(1) of the Bombay Act was held to have retrospective operation. On the parity of reasoning the provisions of Section 14(1) and (2) of the Act No. XVII of 1950 must be held to have retrospective effect.

9. Secondly Section 13 prohibits a Court, from passing a decree or making an order in execution of a decree or otherwise evicting the tenant if such a decree or order directs eviction, of a tenant on a ground other than the grounds mentioned in Section 13(1). There is no doubt that the provisions of Section 13(1) are retrospective because this section provides protection to even those tenants against whom the decree was passed and execution proceedings were pending at the time of the commencement of the Act. Ordinance No. 26 of 1975 by enacting Section 14(1) and (2) has placed further restrictions on passing of decree against tenants. It makes Section 13(1)(h) subject to Section 14(2) of the Act. It qualifies the provisions of Section 13(1)(b) and 13(1)(h) of the Act No. XVII of 1950 regarding passing of a decree. The point of time when Sub-sections (1) and (2) of Section 14 will operate is when the decree for recovery of possession will have to be finally passed. There can be no doubt that the language of Sub-sections (1) and (2) of Section 14 applies equally to the suits pending when the aforesaid sub-sections came into force and the suits filed subsequently. If Sub-sections (1) and (2) of Section 14 apply to the suits pending in the trial court at the time when Section 14 came into force by Section 10 of Amendment Ordinance No. 26 of 1975, there is no reason why it should not apply to pending appeals also. An appeal is a continuation of the original proceedings and as such it is the suit itself. In Lachmeshwar v. Keshwar Lal AIR 1941 FC 5 Sir Gyyer C.J. quoted with, approval the following observations taken from an American case:

We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require; the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.

Varadachariar J, pointed out in the same case that a court of appeal in India did not merely act as a court of error and that a court was bound to confirm a decree passed by the court below if it was shown that the decree was correct according to 1aw as it stood on the date when it was passed Varadachariar J, further, pointed out that the hearing of an appeal was in the nature of a rehearing and he relied on the provisions of Section 107 of the Code of Civil Procedure which provided that a court of appeal had the same power and was to perform as nearly as possible the same duties as were conferred on and could be performed by, the court of first instance. After considering a number of authorities it was held that an appellate court was bound to take into account the state of law as it existed on the date when the appeal came up for hearing. The same view was taken by a Full Bench of the Allahabad High Court in Shyam Sunder Lal v. Shagun Chand : AIR1967All214 .

10. Crawford in his book 'The Construction of Statutes' while considering the effect of repealing act generally has observed as follows:

In other words, rights dependent upon a statute and still inchoate that is, not perfected by a final judgment, are lost by a repeal of the statute. The following language from Wall v. Chesapeake & Ohio Ry. Company will give some idea of the effect of a repeal before final judgment has been rendered.

It is well fettled that if a statute giving a special remedy is repeated without a saving clause in favour of pending suits, all suits must stop where the repeal finds them. If final relief has not been granted before the repeal went into effect, it cannot be after. If a case is appealed, and pending the appeal the law is changed the appellate court must dispose of the case under the law in force when its decision was rendered. The effect of the repeal is to obliterate the statute repealed as completely as a law which never existed, except for the purposes of those actions or suits which were commenced, prosecuted, and concluded while it was an existing law. Pending judicial proceed dings based upon a statute cannot proceed after its repeal. This rule holds true until the proceedings have reached the final judgment in the court of last report, for that court, when it comes to announce its decision, confirms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal.

11. In the case on hand the landlord has not obtained an affective decree The decree passed by the first appellate court has not become final between the parties as it has been challenged in appeal. The amendment of Section 14 of the Act No. XVII of 1950 has come into force during the pendency of the suit at the appellate stage. Order 41, Rules 33 & 36 Civil Procedure Code provide for passing of a decree at appellate stage. The decrees for passing of a decree are passed not only by the trial court but by the appellate courts also. The decree of the lower court merges into the decree passed by the appellate court. The only decree capable of execution is the final decree in the case whether by the tailor the appellate court. Sub-section (2) of Section 14 of the Act No. XVII of 1950 creates a bar against passing of the decree. The decree passed in pursuance of the judgment of the trial court and the decree passed in pursuance of the judgment of the appellate court modifying, affirming or reversing the judgment of the lower court is, nevertheless, a decree and no artificial distinction can be drawn between the decree pissed by the trial court and the decree pass-ed at the appellate stage. Reference may also be made to the decision of their Lordships of the Supreme Court in Dayawati v. Ilnderjit and Ors. : [1966]3SCR275 where in the word 'suit' used in Punjab Relief of Indebtedness Act came up for interpretation. Hon'ble Hidayatullah J, as be then was speaking for the Court observed as under:

It would, therefore, appear that in speaking of a pending suit, the legislature was thinking not only in terms of the suit proper but also of those stages in the life of the suit which ordinarily take place before a final executable document comes into existence. The words of the section we are concerned with speak of a suit pending on the commencement of the Act and it means a live suit whether in the Court of first instance or in an appeal court where the judgment of the Court of first instance is being considered, It only excludes those suits in which nothing further needs to be done in relation to the lights or claims litigated because an executable decree which may nor be reopened is already in existence.

12. Besides this, I have no doubt that the provisions of Sub-sections (1) and (2) of Section 14 of Act No. XVII of 1950 as amended by the Ordinance No. 26 of 1975 have retrospective operation and are applicable to the pending appeals. But even if it is held that the language used in this section is feasible of two interpretations then also the rent legislation being a remedial legislation, interpretation which advances remedy and suppresses evil must be adopted It should be interpreted so as to give effect to the object of the statute and not to, defeat them. The heading of the Section 11 also shows that it lays down the retrospective effect.

13. In Prabhashanker v. Smt. Ruksmani and Ors. a similar point was raised and Hon'ble Mr. Justice Modi has held that no prospective operation to Section 14(2) can be given without doing violence to its language. He further held that the provisions of Section 14(2) as amended by the Amendment Ordinance No. 20 of 1975 have retrospective effect and pending appeals, based on the ground under Section 13(1)(b) would be governed by Section 14(2) of the Act. I respectfully agree to the reasoning's given in the said decision.

14. There is no dispute between the parties that either of the courts below has not gone into the question of comparative hardship between the the landlord and the tenant as envisaged by Section 14(2) of the Act No. XVII of 1950 as amended by the Ordinance No. 26 of 1975. It is, therefore, fair that both the parties should be given an opportunity to amend their pleadings so as to incorporate the grounds mentioned in Section 14(2) of the Act.

15. In the result, the appeal is allowed, the decrees and judgments of the courts below are set aside, and the case is remanded to the trial court for framing an appropriate issue in light of amendment. The parties will be free to amend their respective pleadings and they will be free to lead fresh evidence, if they so desire, on the newly framed issue. The evidence recorded during the original trial shall also, subject to just exceptions be the evidence during the trial, after remand. The trial court shall decide the case afresh.

16. In the peculiar circumstances of this case, the parties are ordered to bear their own costs throughout.

17. Learned Counsel for the respondent prays for certifying the case to be a fit one for appeal under Section 18(2) of the Rajasthan High Court Ordinance, 1949. The prayer is allowed.


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