K.A. Swami, J.@mdashThis Appeal is preferred against the Judgment and decree dated 31st October 1979 passed in O.S.No. 203/1977 by the Principal Civil Judge, Civil Station, Bangalore.
2. The appellant was the defendant in the suit and the respondent was the plaintiff. Therefore, in this Judgment the parties will be referred to as the defendant and the plaintiff.
3. The suit was filed for possession of the suit schedule properties and for past mesne profits from 2nd November 1977 to 16th November 1977 and also for future mesne profits from the date of suit till recovery of possession at the rate of Rs. 5,000/ - p.m. and for costs and other reliefs.
4. The suit schedule premises as described in the plaint is as follows:
"SCHEDULE
All those pieces and parcels of land together with the two storeyed building standing thereon, numbered for purposes of identification as No. 1-L for the ground floor and L-1 for the first floor, with fixtures and fittings therein, situated in Kasturba Road, in the Civil Station of Bangalore, together with the servants room and garage attached, but excluding only the garage and servants room belonging to the cottage on the eastern side of the ground floor."
5. The suit schedule premises was leased to the defendant on a rent of Rs. 2,000/- p.m. Therefore, the plaintiff filed the aforesaid suit for possession on the ground that the suit schedule premises was a non-residential premises leased on a monthly rent of more than Rs. 500/-, therefore, it was exempted from the purview of Part V of the Karnataka Rent Control Act (hereinafter referred to as "the Act") and as such the plaintiff was entitled to seek a decree for possession in a Court other than the Court as defined in the Act.
6. The defendant resisted the suit and contended that the plaintiff was not entitled to a decree for possession. In the light of the pleas raised by the parties, the trial Court raised the following issues:
"1. Whether plaintiff proves that the suit premises are a non-residential premises?
2. Whether she further proves that she properly terminated the tenancy of the defendant?
3. If so, is she entitled for possession of the suit property?
4. Is she entitled for mesne profits as prayed for?
5. Whether plaintiff has a right to file the suit?
6. Whether this Court had jurisdiction to try this suit in view of the provisions of Karnataka Rent Control Act?
7. To what decree or order?
Addl: Issue-1: Whether the defendant proves that the plaintiff is estopped from seeking eviction?
The trial Court answered issue Nos. 1 to 3, 5 and 6 in the affirmative and on issue No. 4 a separate enquiry into past and future mesne profits was ordered. Consequently, it decreed the suit for vacant possession of the suit schedule property and further directed a separate enquiry into past and future mesne profits payable by the defendant from 2-11-1977 under Order 20 Rule 12 of C.P.C.
7. Being aggrieved by the aforesaid Judgment and decree, the defendant has come up in appeal. In the light of the contentions urged on both sides, only two points arise for consideration. They are;
1) Whether the decree for ejectment passed by the Court other than the one defined in the Act, in respect of the premises governed by the Act is sustainable in law?
2) Whether the decisions in C.K. Mohammed Kunhi v. State of Karnataka and others [1989(1) Kar.L.J. 109] and
8. Point Nos. 1 and 2:- Points 1 and 2 are considered together as the same can conveniently be considered together. The trial Court has recorded a finding that the premises in question is a non-residential premises. In the light of the evidence on record, we do not consider that the said finding recorded by the trial Court suffers from any illegality. Therefore, we agree with the reasons given by the trial Court for coming to a conclusion that the premises in question is a non-residential premises and hold that the premises in question is a non-residential premises. Section 31 of the Act exempted the non-residential premises from the purview of Part V of the Act, the monthly rent of which was Rs. 500/- and more. Therefore, the suit premises in question which carried the monthly rent of Rs. 2,000/-was exempted from the purview of Part V of the Act. Therefore, on the date on which the suit was filed, the ordinary Civil Court had jurisdiction to entertain the same. On the date on which the decree was passed by the trial Court, it continued to have the jurisdiction because Section 31 of the Act continued to be on the statute. However during the pendency of this appeal, Section 31 of the Act came to be struck down on 1-7-1986 by this Court in H. PADMANABHA RAO v. STATE OF KARNATAKA. The provision was struck down on the ground that due to fall in the rupee value, the protection that was granted u/s 31 of the Act ceased to be of any value and on the contrary it had become unreasonable and resulted against the interest of the persons for whose benefit the provision was made. The relevant portion of the Judgment in H. Padmanabha Rao''s case is as follows:
"Value, of a non-residential premises has increased manifold in the last 25 years. Therefore, there can be least doubt that if in 1961 a person paying a rent of more than Rs. 500/- for a non-residential building belonged to economically stronger section, at present a person who requires a small non-residential building for even carrying a petty business would be required to pay rental of more than Rs. 500/- for a premises whose rental value was Rs. 100/- or Rs. 150/- in 1961. The facts relating to the rentals paid by some of the petitioners originally and at present, extracted earlier clearly indicates the escalation in rents between 1961 and 1986. In view of non-variation of the classification in Section 31 of the Act, the very persons for whose benefit the Section was enacted in the year 1961 stand deprived of the said benefit. It is for this reason it can safely be said that though the original classification was made on a rational basis and it had nexus to the object sought to be achieved, by efflux of time, not only the classification has become unreasonable but it has also ceased to have nexus to the object sought to be achieved. Applying the ratio in Rattan Arya''s case Section 31 of the Act is liable to be struck down on the ground that it is violative of Article 14 of the Constitution."
9. In that Judgment nothing was stated as to from what date it would become effective, whether from the date on which the provisions contained in Section 31 of the Act were struck down or from the anterior date, because the provisions of Section 31 of the Act were struck down on the ground that the said provisions have become unreasonable due to the fall in money value even though the same were valid on the date the said provisions were enacted. Therefore, the said pronouncement could be effective only from the date it was pronounced. At this stage itself, we may also refer to the two Decisions of the Supreme Court in ATMA PRAKASH v. STATE OF HARYANA AND ORS. and in MOTOR GENERAL TRADERS AND ANR. v. STATE OF ANDHRA PRADESH AND ORS. In Atma Prakash''s case, the Supreme Court considered the validity of the provision contained in Section 15 of the Punjab Pre-emption Act, 1913 similar to the provision contained in Section 31 of the Act. The Supreme Court, after striking down the said provision as having become violative of Article 14 of the Constitution, issued further directions:
"We are thus unable to find any justification for the classification contained in Section 15 of the Punjab Pre-emption Act of the kinsfolk entitled to pre-emption. The right of preemption based on consanguinity is a relic of the feudal past. It is totally inconsistent with the constitutional scheme. It is inconsistent with modern ideas. The reasons which justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory and succession are today irrelevant. The list of kinsfolk mentioned as entitled to pre-emption is intrinsically defective and self-contradictory. There is, therefore, no reasonable classification and clauses ''First'', ''Secondly'' and ''Thirdly'' of Section 15(1)(a), ''First'', ''Secondly'' and Thirdly'' of Section 15(1)(b). Clauses ''First'', Secondly and Thirdly'' of Section 15(1)(c) and the whole of Section 15(2) are, therefore, declared ultra vires the Constitution.
We are told that in some cases suits are pending in various Courts and, where decrees have been passed, appeals are pending in appellate Courts. Such suits and appeals will now be disposed of in accordance with the declaration granted by us. We are told that there are a few cases where suits have been decreed and the decrees have become final, no appeals having been filed against those decrees. The decrees will be binding inter parties and the declaration granted by us will be of no avail to the parties thereto."
(Underlining supplied)
10. Similarly, in Motor General Trader''s case, the Supreme Court struck down Clause (b) of Section 32 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 which was similar to Section 31 of the Act as violative of Article 14 of the Constitution and further held that such a declaration would not affect the validity of the proceedings in which the decree for eviction passed by a Civil Court had become final and the landlord had already taken possession of the building in question pursuant to the date. The relevant portion of the Judgment as contained in paras-30, 31 and 32 is as follows:
"After giving our anxious consideration to the learned arguments addressed before us, we are of the view that Clause (b) of Section 32 of the Act should be declared as violative of Article 14 of the Constitution because the continuance of that provision on the statute book will imply the creation of a privileged, class of landlords without any rational basis as the incentive to build which provided a nexus for a reasonable classification of such class of landlords no longer exists by lapse of time in the case of the majority of such landlords. There is no reason why after all these years they should not be brought at par with other landlords who are subject to the restrictions imposed by the Act in the matter of eviction of tenants and control of rents.
We do not realise the adverse effect of this decision on many who may have recently built houses by spending their life savings or by borrowing large funds during these inflationary days at high rates of interest, on the expectation and belief that they would not be subjected to the restriction imposed by the Act. The incentive to build provides a rational basis for classification and it is necessary, in the national interest that there should be freedom from restrictions for a limited period of time. It is always open to the State Legislature or the State Government to take action by amending the Act itself or under. Section 26 of the Act, as the case may be, not only to provide incentive to persons to who are desirous of building new houses, as it serves a definite social purpose but also to mitigate the rigour to such class of landlords who may have recently built their houses for a limited period as it has been done in the Union Territory of Chandigarh as brought out in our recent Judgment in Punjab Tin Supply Co. Chandigarh v. Central Government (Writ Petn. Nos. 9935-41, 9943-44 of 1982 etc. etc. decided on October 20, 1983: (Reported in
In the result these petitions succeed. Clause (b) of Section 32 of the Act is hereby declared as unconstitutional and it is quashed. We, however, make it clear that this declaration would not affect the validity of any proceedings in which the decree for eviction passed by a Civil Court has become final and the landlord has already taken possession of the building in question pursuant thereto."
11. Therefore, in Padmanabha Rao''s case, this Court followed the aforesaid two Decisions and struck down Section 31 of the Act. From the aforesaid two Decisions of the Supreme Court, it is clear that the striking down of the provision similar to Section 31 of the Act will have its effect on the pending proceedings. However, the decrees which had become final and which had been executed were not to be re-opened.
12. We have referred to these Decisions because, it is the contention of the defendant that the appeal has to be decided on the basis that the protection that was available u/s 31 of the Act was not available with effect from 1-7-1986; that as the appeal is continuation of the suit and it is nothing but re-hearing of the suit; the subsequent change in the law has to be taken into account. The subsequent change, it is contended, whether by way of legislation or by way of authoritative pronouncement of the Supreme Court has to be taken into account while deciding the appeal, and in such an event, Section 21 of the Act comes in the way of the plaintiff to secure the decree for possession from the ordinary Civil Court because Section 21 of the Act opens with the words:
"Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant."
In support of this plea, the learned Counsel for the defendant has placed reliance on the Decisions of the Supreme Court in GUMMALAPURA TAGGINA MATADA KOTTURASWAMI v. SETRA VEERAWA AND ORS., I.N. MASTHAN SAHIB AND ANR. v. THE CHIEF COMMISSIONER, PONDICHERRY & ANR.,5 SHAH BHOJRAJ KUVERJ OIL MILLS & GINNING FACTORY v. SUBHASH CHANDRA YOGREJ SINHA, Mst. RAFIQUENNESSA AND ANR. v. LAL BAHADUR CHETRI AND ORS., MULA & OTHERS v. GODHU AND ORS., M. Ct. M. CHIDAMBARAM CHETTIAR (Dead) BY HIS L.Rs. v. THE COMMISSIONER OF INCOME TAX, MADRAS, THE OFFICIAL LIQUIDATOR v. RAGHAVA DESIKAR AND ORS., SHIV KUMAR v. JAWAHAR LAL VERMA AND ORS., MITHILESH KUMAR AND ANR. v. PREM BEHARI KHERE, LAKSHMI NARAYANA GUIN AND ORS. v. NIRANJAN MODAK and SHAIKISMAIL v. RAMACHANDRA.
13. On the contrary, it is contended by Sri Udaya Holla, learned Counsel for the plaintiff that the rights of the parties are to be decided on the facts and the law existing as on the date of the filing of the plaint and in the instant case, even on the date of the decree passed by the trial Court Section 31 of the Act was on the statute, therefore on the passing of the decree, the rights of the parties got crystalised and any change in the legal position cannot be construed to have the effect on the decree passed by the Court below or on the rights of the plaintiff to secure the decree for ejectment from the ordinary Civil Court. Sri Holla has placed reliance in support of his contention on the following decisions of the Supreme Court and of this Court; (i) NAND KISHORE MARWAH AND ORS. v. SMT. SAMUNDRI DEVI; (ii) ATMA RAM MITTAL v. ISHWAR SINGH PUJA; (iii) C.K. MOHAMMED KUNHI v. STATE OF KARNATAKA AND ORS.; and (iv) HAMEED & HAMEED ENTERPRISES v. NICKY''S PARLOUR.
14. It cannot be disputed that the appeal is continuation of the suit. Having regard to the catena of Decisions, Sri Holla, learned Counsel for the plaintiff fairly did not dispute that appeal is the continuation of the suit and it is nothing but re-hearing of the suit. This proposition does not require to be supported by any authority. However, there is a recent pronouncement of the Supreme Court considering the proposition in greater detail. We consider it necessary to refer to the said Decision rendered in Lakshmi Narayan Guin and Ors. v. Niranjan Modak. It is well settled that when a trial Court decrees a suit and the decree is challenged by a competent appeal, me appeal is considered as a continuation of the suit. When the appellate decree affirms, modifies or reverses the decree of the lower Court on the merits, the trial Court decree is said in law to merge in the appellate decree, and it is the appellate decree which rules. Then again in para-9 it has been observed thus:
"....Relying on the proposition formulated as long ago as Krishnama Chariar v. Mangammal ILR (1902) Mad. 91 (FB) by Bhashyam Iyengar J., that the hearing of an appeal was, under the processual law of this country, in the nature of a re-hearing of the suit. In Amarjit Kaur (supra) this Court referred also to
Thus, the appeal is nothing but continuation of the suit.
15. The next question for consideration is whether subsequent change in law can be taken into consideration while deciding the appeal. This aspect also need not detain us any longer because it is well settled by the catena of the Decisions of the Supreme Court. In Gummalapura Taggina Matada Kotturaswami v. Setra Veerawa and Ors. Hindu Succession Act came into force during the pendency of the appeal before the Supreme Court and the same was applied to the appeal.
On considering the preliminary objection raised on the basis of Section 14 of the Hindu Succession Act, the Supreme Court upheld the preliminary objection and applied Section 14 to the appeal. Thus it took into consideration the subsequent change in law and applied the same to the pending proceedings. Instead of referring to the other Decisions on which reliance was placed by the learned Counsel for the defendant we may refer to the decision in Lakshmi Narayan''s case because it refers to the earlier decisions of the Supreme Court and also of the Federal Court. In Lakshmi Narayan''s case, Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act (for short ''W.B. Tenancy Act'') was considered. We may also point out that the said provision of Section 13(1) is similar to Section 21(1) of the Act. The Supreme Court was called upon to consider whether the provision of Sub-section (1) of Section 13 of the W.B. Tenancy Act which came into force during the pendency of the appeal could be applied to the appeal and the appeal could be decided with reference to Sub-section (1) of Section 13 of the W.B. Tenancy Act. The Supreme Court held that as the appeal was to be considered as a continuation of the suit and as such the subsequent changes were to be taken into account and the appeal was to be decided on applying the law as it stood on the date of deciding the appeal. Accordingly applied Sub-section (1) of Section 13 of the W.B. Tenancy Act and affirmed the decree of the High Court as the High Court had decided the matter on applying Sub-section (1) of Section 13 of the W.B. Tenancy Act. The relevant portion of the Judgment is as follows:-
"As has been stated earlier, Sub-section (1) of Section 13 of the Act provides that no order or decree for the recovery of possession shall be made by any Court in a landlord''s suit against the tenant except on certain enumerated grounds. Does the decree here refer to the decree of the trial Court or, where an appeal has been preferred, to the appellate decree? Plainly, reference is intended to the decree which disposes of the suit finally. It is well settled that when a trial Court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit and when the appellate decree affirms, modifies or reverses the decree on the merits, the trial Court decree is said in law to merge in the appellate decree and it is the appellate decree which rules. The objection of Sub-section (1) of Section 13 is to protect the possession of the tenant, subject to the exceptions specified in the sub-section, and that protection is ensured if we construe the sub-section to mean that, subject to those exceptions, no effective or operative order or decree can be made by the Court in a landlord''s suit for possession against a tenant. To our mind, therefore, Sub-section (1) of Section 13 of the Act can be invoked by a tenant during the pendency of an appeal against a trial Court decree.
The next point is whether Sub-section (1) of Section 13 can be invoked where the suit was instituted before the Act came into force. In the instant case, the suit was instituted long before the Act was extended to Memari. Sub-section (1) of Section 13 directs the Court not to make any order or decree for possession subject, of course, to the statutory exceptions. The legislative command in effect deprives the Court of its unqualified jurisdiction to make such order or decree. It is true that when the suit was instituted the Court possessed such jurisdiction and could pass a decree for possession. But it was divested of that jurisdiction when the Act was brought into force. The language of the sub-section makes that abundantly clear, and regard must be had to its object. In
"A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay the amount of the standard rent..."
On the question whether the provision applied to pending suits for possession, the learned Judges drew attention to the point of time specifically mentioned in the sub-section. It operated, they said, "when the decree for recovery of possession will have to be passed" and did not refer back to the institution of the suit. By a unanimous Judgment the learned Judges held that the sub-section applied to pending suits. In passing it may be noted that the learned Judges expressed a degree of hesitation on whether a statutory injunction of that nature could be applied retrospectively to appeals against decrees already made. But any doubt on the point must be considered to have been finally removed by this Court when in
That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in
We may point out that in
"If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed and the Court of appeal may give effect to such a law even after the Judgment of the Court of first instance."
Thus from the aforesaid Decision it is clear that subsequent change in law has to be applied to the pending proceedings. It is also clear from Lakshmi Narayan''s case that it followed the earlier Decisions of the, Supreme Court decided by a Bench of five Judges such as
16. The next question for consideration is whether in the light of the other two Decisions of the Supreme Court in Atma Ram Mittal and Nand Kishbre''s15 cases, it is permissible to decide the appeal on the basis of the change in law, that has taken place subsequent to the passing of the decree. Nand Kishore''s case was decided by the Bench of two Judges. In this case, Sections 2(2), 20, 39 and 40 of the UP. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 were considered. Under the provisions of the aforesaid UP. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the UP. Act), a building was exempted from the purview of the UP. Act for a period of 10 years. Under Sub-section (2) of Section 2 of the UP. Act nothing contained in that Act was applicable to a building during a period of 10 years from the date on which its construction was completed except as provided in Sub-section (5) of Section 12 and Sub-section (1-A) of Section 21 Sub-section (2) of Section 24, Section 24A, 24B, 24C or Sub-section (3) of Section 29 of the UP. Act. Section 39 of the UP. Act, however provided that:
"In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of the UP. Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the Court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord''s full cost of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to Sub-section (1) or in Clauses (b) to (g) of Sub-section (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary; provided that a tenant the rent payable by whom does not exceed twenty five rupees per month need not deposit any interest as aforesaid."
17. The Supreme Court held thus:
"It is pertinent to note that this Section applies to those suits which were pending on the date of the commencement of this Act. Admittedly this Act came into force on 15th July, 1972 and therefore if the suit was pending on that date it is only then that the provisions of Section 39 will come to the assistance of the tenant-appellant. Admittedly this suit was not pending on the date on which this Act came into force. An attempt was made to contend that so far as the present property is concerned the Act will be deemed to have come into force on the expiry of 10 years i.e., 1-10-1986 but this contention could not be accepted as it is very clear from the language of this Act that it applied only to a suit pending on the date of the commencement of this Act and this is the view taken in
XXX XXX XXX
This Section talks of the pendency of a revision or an appeal arising out of a suit pending on the day on which this Act came into force. It is clear that provisions of Section 40 will come to the rescue of the appellant tenant only if the suit from which revision or appeal arose was pending on the date of commencement of this Act i.e., 15-7-1972 and therefore it could not be contended that the present revision petition or the appeal either to the High Court or the appellate authority arose out of suit which was pending on the date on which this Act came into force. Admittedly, the suit itself was filed much after the coming into force of this Act. In this view of the matter, therefore, in our opinion, even this contention of learned Counsel for the appellant could not be accepted."
"It is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit, but in
XXX XXX XXX
The restriction on the right of a landlord to evict a tenant has been provided for in this Act u/s 20 and the language of Section 20 is also significant.
"20. Bar of suit for eviction of tenant except on specified grounds - (1) Save as provided in Sub-section (2) no suit shall be instituted for the eviction of a tenant from a building notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner:
Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in Court or otherwise reduced to writing and signed by the tenant."
This is put in Chapter IV with the heading "Regulation and Eviction" and the Section starts with title which is printed in bold "bar of suit for eviction of tenant except on specified grounds" and again in the wording of the section itself it provides: "No suit shall be instituted for eviction." This clearly indicates that the restriction put u/s 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applies then no suit for eviction can be instituted except on the grounds specified in the sub-section of this Section. Keeping in view the language of this Section if we examine the provisions contained in Sub-section (2) of Section 2 it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction u/s 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in Clause (2) of Section 2 restriction on the institution of suit as provided for in Section 20 Clause (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even if 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 cannot be attracted.
In the light of the discussion above, therefore, in our opinion, the contention advanced by learned Counsel for the appellant cannot be accepted. The appellant-tenant could not be given the advantage of the provisions contained in this Act. In this view of the matter therefore, the appeal is without any substance and is dismissed."
18. Thus, in this Decision, their Lordships of the Supreme Court were concerned with the scope and ambit of the exemption of 10 years granted to a building governed by the UP. Act Their Lordships also took note of the fact that pendency of the suit should not work against the interest of the plaintiff inasmuch as if the suit were to be decided before the expiry of 10 years, the plaintiff would have got the benefit. It was also further held that during the pendency of the litigation even if 10 years expired, the restriction would not be attracted to the suit as the suit has been instituted within 10 years and therefore restrictions as provided for in Section 20 could not be attracted. Again in Atma Ram Mittal''s case, the Supreme Court considered the provisions "contained in Sections 1 (3) and 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Haryana Act). These provisions were similar to the provisions contained in the UP. Act. The Decisions in Nand Kishore, VINEET KUMAR v. MANGAL SAIN WADHERA and OM PRAKASH GUPTA v. DIG, VIJENDRAPAL GUPTA were also considered and it was held that merely because there was a delay in deciding the case the right of the parties should not be allowed to be defeated. In paras 8 and 9 of the Judgment, Their Lordships observed thus:
"It is well-settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim "act us curia neminem gravibit" an act of Court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication the 10 years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within 10 years and even then within that time it may not be disposed of. That will make the 10 years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else.
Judicial time and energy is more often than not consumed in finding what is the intention of the Parliament or in other words, the will of the people. Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. (Underlined by the Court). See Commentaries on the Law of England [facsimile of 1st edition of 1765, University of Chicago Press, (1979) Vol.1, p. 59], Mukherjea, J., as the learned Chief Justice then was, in
19. Thus, in both these Decisions, the Court was called upon to consider the effect of the exemption clause contained in both the enactments exempting buildings from the purview of the Act for a period of 10 years. In both these Decisions, Their Lordships were not required to consider the question as to whether the subsequent change in the law should be applied to the pending proceedings. Their Lordships were concerned mainly with the question that the right conferred on the landlord by providing the exemption for a period of 10 years under the Act should not be rendered illusory merely because proceeding goes on beyond the period of 10 years. Thus the ratio decidendi of these two Decisions does not touch or cover the question under consideration.
20. Sri Holla, learned Counsel for the plaintiff contends that there is no real difference between the facts concerned in Atma Ram Mittal16 and Nand Kishore''s cases and the facts involved in the present case. It is contended that in Atma Ram Mittal and Nand Kishore''s cases, the premises was exempted from the purview of the Act for a period of 10 years whereas in the instant case, the premises was exempted from the purview of Part V of the Act as long as Section 31 of the Act continued on the statute. Therefore, the law laid down in Atma Ram Mittal and Nand Kishore''s cases should govern the case on hand. We are of the view that it is not possible to accept the contention, in the case on hand, the premises was exempted from the purview of Part V of the Act till 1-7-1986 because on 1-7-1986 Section 31 of the Act was struck down. Part V of the Act relates to control of eviction of tenants and obligation of landlords. The other provisions of the Act relating to lease of buildings, deposit of rent, special provisions and miscellaneous provisions were applicable to the premises in question. Further, on the striking down of Section 31 of the Act, Section 21 of the Act became applicable to the premises. The said Section as already pointed out takes away the jurisdiction of ordinary Civil Court to pass a decree for ejectment against the tenant of the premises governed by the Act, because under the Act jurisdiction is conferred on the Court as defined in the Act. Ordinary Civil Courts other than the Court defined in the Act have no jurisdiction to pass a decree for eviction. This situation has been considered specifically in Lakshmi Narayan''s case whereas in Atma Ram Mittal''s case and Nand Kishore''s case this situation is not considered. Therefore, it is not possible to hold that the decisions in Atma Ram Mittal''s case and Nand Kishore''s case govern the case on hand.
21. We may also refer to the decision of the Supreme Court in H. SHIVA RAO AND ANR. v. CECILIA PEREIRA AND ORS. to which His Lordship Sabyasachi Mukharji, as he then was, was a party and His Lordship was also a party to the decisions in Atma Ram Mittal''s case and Nand Kishore''s case. Shiva Rao''s case was under the provisions of the Act. In that case, when the suit was filed before the ordinary Civil Court the premises was not governed by the Act because the premises was situated in the area to which the provisions of the Act were not applicable. The suit for ejectment was decreed. In the second appeal this Court confirmed the decree for ejectment passed by the Courts below. Thereafter, execution was filed for possession. During the pendency of the execution the Municipal limits came to be extended, with the result the area where the premises were situated came within the municipal limits. Consequently, the provisions of the Act became applicable. On this ground the execution was resisted by the tenant who had suffered a decree for ejectment, specifically relying upon Section 21(1) of the Act. The matter came to this Court and this Court negatived the contention of the tenant. However, the matter was carried to the Supreme Court. The Supreme Court specifically referred to Sub-section (1) of Section 21 of the Act and held that the decree could not be executed in the light of the provisions contained in Section 21(1) of the Act. The relevant portion of the Judgment is as follows:
"It was held by this Court in
It has to be borne in mind that Rent Control legislations are beneficial to the tenant and restrictive of the rights of the landlords - these legislations were passed to meet the problem of shortage of accommodation in cities and towns. Whether that is the best way to meet the problem of finding habitats for growing number of people is another issue. Whether or not the problem could not be met by another way is also another question. Courts must find out the literal meaning of the expression in the task of construction. In doing so if the expressions are ambiguous then the construction that fulfils the object of the legislation must provide the key to the meaning. Courts must not make a mockery of legislation and should take a constructive approach to fulfil the purpose and for that purpose, if necessary, iron out the creases.
Reliance was placed on behalf of the respondent on the decision of this Court in
For the respondent it was submitted the provision of the section in question should not be read so literally as to rob the decree-holder of his vested rights - permitting Peter to rob for feeding Paul was not social justice, it was urged. Where in a society of acute shortage of accommodation adjustment of rights between the parties is the purpose, we must ask ourselves two questions - does the argument of the appellant on the construction of the section further the purpose of the legislation, and secondly, whether the construction canvassed by the appellant does violence to the language or is contrary to the literal meaning. In our opinion the answers to the first question is in the affirmative and to the second in the. negative. If so, in our opinion, it must be so read, and the appeal must succeed."
Though in Shiva Rao''s case, the decision in Lakshmi Narayana''s case was not referred to but the decision rested on the principles stated in Lakshmi Narayana''s case.
22. We may also refer to the decision in Mithilesh Kumari and Anr. v. Prem Behari Khare. In this case, the provisions of the Benami Transaction (Prohibition) Act 1988 came into force when the proceeding was pending before the Supreme Court. The Supreme Court took into consideration the subsequent event, viz., coming into force of the Benami Transaction (Prohibition) Act and applied the same to the pending proceeding and decided it on that basis. It was specifically held that such application of the law did not amount to giving retrospective operation and it only amounted to application of the law to the facts existed on the date the law came into force. It was also specifically stated that merely because the statute drew certain facts for its application from the past, it did not become retrospective. Thus taking into consideration the decisions in Lakshmi Narayan''s case, Atma Prakash case, Motor General Traders case, Shiva Rao''s case and Mithilesh Kumari''s case, we are of the view that the decisions in Atma Ram Mittal and Nand Kishore''s cases cannot be applied to the facts of the present case.
23. The question that now remains for consideration is as to whether the decisions in 1989(1) Kar.L.J. 109 and
"In view of this, it is clear that the declaration is only prospective and not retrospective. It does not affect the decrees or orders passed earlier to the declaration. Therefore, the second relief asked for by the petitioner, namely, to declare the decree dated 9th April, 1979 in O.S.103/73 and the decree dated 8th April 1979 in O.S.104/73 remain unaffected by the said declaration and it is not possible to grant a declaration that they are invalid or bad in law. Therefore, the second relief is rejected."
It is not clear from the decision as to whether the decree passed in O.S.No. 103/73 and O.S.104/73 had become final and conclusive and had been executed as on 1 -7-1986. In addition to this it was a petition filed under Article 226 of the Constitution. There was no question of going into the validity of the decrees passed by the Civil Court because if those decrees were invalid and were not executed till then such a plea could be raised in the execution proceedings. Therefore, it is not possible to hold that the said Decision can be construed as laying down the law that the decree passed by a Civil Court before Section 31 of the Act was struck down could be executed irrespective of the fact that Section 21(1) of the Act is applicable to such premises. Therefore, the said Decision does not govern the case wherein the decree passed by the Civil Court for ejectment has not become final and has not been executed; but only governs the case where the decree passed by the Civil Court for ejectment of tenant before 1-7-1986 and it had been executed before 1-7-1986 as pointed out in Lakshmi Narayana''s case and Shiva Rao''s case. As such it does not apply to the cases wherein the decree passed by the Civil Court before 1-7-1986 has not been executed till then, and has not become final in the sense it had remained to be unexecuted.
24. The decision in M/s. Hameed & Hameed Enterprises relates to two civil revision petitions, viz., C.R.P. Nos. 3560 and 3911 of 1986, and it contains two propositions. C.R.P. No. 3560/1986 related to restitution proceeding. In that case, a decree for eviction was passed. There was an application filed under Order IX Rule 13 of CPC for setting aside the decree and in that proceeding an application for stay of the operation of the decree for eviction was filed and an order of stay was passed staying the operation of the decree. But before the operation of the decree was stayed, the decree itself was executed and the tenant was evicted. In view of the order passed staying the operation of the decree, the tenant filed an application for restitution of possession. The Court of first instance allowed the application and ordered for restitution. This Court held that the order of the trial Court directing restitution was not justified nor it was permissible.
Accordingly allowed C.R.P.No. 3560/1986 in part and the restitution ordered by the executing Court was set aside. We are not concerned in the present case with this portion of the Decision in M/s. Hameed and Hameed Enterprises. However, in CRP 3911 of 1986 there was a decree for ejectment of the tenant which was not governed by the Act, During the pendency of the execution, the premises came under the purview of Part V of the Act. The Executing Court issued warrant for delivery of possession on 8-8-1986. It is the validity of this that was challenged in CRP No. 3911/1986 on the ground that the decree was not executable in the light of the provisions contained in Section 21(1) of the Act. After referring to Atma Prakash v. State of Haryana and Ors and Motor General Traders'' case and on holding that Shiva Rao''s case had no application, it was held as follows:
"The declaration made by this Court Padmanabha Rao''s case that Section 31 is invalid on account of efflux of time as having become violative of Article 14 of the Constitution is not made with reference to any point of time. In the Supreme Court decisions referred to earlier when making a declaration that the Section has become invalid with the passage of time though valid when enacted, they also declared the applicability or otherwise of such declaration to pending proceedings. In Padmanabha Rao''s case there is no such declaration as to its applicability to pending proceedings or to decrees that have been passed already. This is not a case where Section 31 is void ab initio but becomes invalid by efflux of time and is so declared by a Court. Therefore, it is reasonable to hold that such declaration is effective from the date when it is made. Hence, it cannot be said that Section 31 was not in the statute book on the day the decree was passed in this case. If the decree is valid on the day it was passed and a right had accrued by the law which included both Sections 21 and 31 of the Act, it cannot be said that Section 21 of the Act can override such a decree to render it inexecutable. Any other view would affect the operation of Section 31 of the Act when it was applicable and was valid. When this Court declared Section 31 as invalid, not from its inception, its operation prior to such declaration remains unaffected. The resultant position of this discussion is that in this case a decree had been passed on 5-12-1985 while the declaration of law was made by this Court on 1-7-1986 and the decree had become final as on 5-12-1985 inasmuch as no appeal had been filed against the same.
Although the Judgment-debtor had filed an application to set aside the decree that was neither here nor there and as long as the decree stood it is capable of being executed notwithstanding Section 21 of the Act being effective and in full cry after Section 31 stood removed from the statute book by declaration of law made by this Court that it is invalid. A decree which was passed pursuant to the exclusionary clause u/s 31 has overriding effect over Section 21 of the Act and it cannot be said that Section 21 is applicable to such a case. Therefore, I am of the view that as long as the decree stood as made on 5-12-1985 the same is executable and hence the contention raised on behalf of the Judgment debtor that this decree is inexecutable cannot be accepted."
25. It is not possible to agree with the aforesaid reasoning. In fact, there was no distinction between the facts involved in CRP No. 3911/1986 and Shiva Rao''s case inasmuch as in both the cases Chapter V of the Act became applicable to the premises during the pendency of the execution. Therefore, in the light of the decision in Lakshmi Narayana''s case13 and Shiva Rao''s case, we find it difficult to agree with Rajendra Babu, J. Hence, we are of the view that the decision in M/s. Hameed & Hameed Enterprises in so far as it concerns CRP No. 3911/1986 has to be overruled as it is in direct conflict with the Decision in Shiva Rao''s case and Lakshmi Narayana''s case. We accordingly, overrule the decision in C.R.P.No. 3911/1986. From what is stated above, it becomes clear that the decree for ejectment passed by the Civil Court, in view of the subsequent change in law viz., striking down Section 31 of the Act and thereby Part V of the Act becoming applicable to the premises, cannot be sustained. The question of payment of mesne profits by the defendant does not arise because he continues to be the tenant under the Act. It is also stated by the learned Counsel for the plaintiff that it has been paying the rent as agreed. Accordingly, point Nos. 1 and 2 are answered as follows:
(i) The decree of the trial Court in the light of the striking down Section 31 of the Act during the pendency of the appeal cannot be sustained because the provisions of Part V of the Act have become applicable to the premises.
(ii) The Decision in C.K. Mohammed Kunhi v. State of Karnataka17 is confined to a case wherein the decree passed by the ordinary Civil Court before 1-7-1986 for ejectment of a tenant and had been executed before 1-7-1986 and had become final before 1-7-1986. It does not apply to a case wherein the decree for ejectment of a tenant is passed prior to 1-7-1986 and it has remained unexecuted. The decision in Hameed & Hameed Enterprises in so far as it relates to CRP No. 3911/1986 is overruled.
16. For the reasons stated above, the appeal is allowed, the Judgment and decree under revision are set aside and the suit is dismissed. However, there shall be no order as to costs. This decree does not come in the way of the plaintiff to seek eviction of the defendant under the provisions of the Act.
