D.Y. Chandrachud, J.
1. This Civil Revision Application arises out of an order passed by the Small Causes Court on 11th February, 2002 in three Revision Applications. The three Revision Applications sought to impugn an order passed by the Small Causes Court, dismissing three interim notices which were taken out on behalf of the Applicant herein, raising objections to the execution of the decree for eviction under Section 47 of the Code of Civil Procedure, 1908.
2. Briefly stated, the factual background of the case is that a suit for eviction came to be filed in the year 1990 by the landlord and eviction was sought on the ground, inter alia, of a change of user and of subletting, these being statutory grounds which were available under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The suit for eviction was decreed on 21st December, 1996 both on the ground of change of user and of subletting. The appeal which was filed by the Applicant was dismissed on 25th February, 2000 and while dismissing the appeal, the Appellate Bench of the Small Causes Court stayed the operation of the decree until 23rd April, 2000 on the request of the tenant so as to enable him to espouse his remedies against the appellate order. A Writ Petition under Article 227 of the Constitution was filed in this Court on behalf of the Applicant, being Writ Petition No. 3337 of 2000 which was dismissed on 11th October, 2000. This Court directed that the decree for eviction shall not be executed for a period of six weeks. There is no dispute about the fact that the judgment of this Court dated 11th October, 2000, dismissing the Writ Petition was not challenged any further and that it has attained finality.
3. The landlord, in whose favour the decree for eviction has been passed, moved the Small Causes Court to execute the decree. Three interim notices were taken out on behalf of the tenants by which objections were sought to be raised to the execution of the decree. These objections came to be turned down by the Small Causes Court on 26th September, 2001 and the executing Court also allowed the application for execution. That order was challenged before the Small Causes Court in the exercise of its revisional jurisdiction and three Revision Applications, as already noted, have been dismissed on 11th February, 2002.
4. The challenges which have been urged in the submissions of the Learned Counsel appearing on behalf of the Applicant to the Order of the Small Causes Court in these proceedings can now be taken up seriatim.
A. (i) The First submission which was urged on behalf of the Applicant is that the Bombay Rent Act was repealed on 31st March, 2000 by the Maharashtra Rent Control Act, 1999 (Maharashtra Act, 18 of 2000). The submission that was urged was that under Clause (a) of Sub-section (2) of Section 58 of the Maharashtra Rent Control Act, 1999, what was saved notwithstanding the repeal was all applications, suits, and other proceedings under the repealed Act pending on the date of commencement of the new Act. Therefore it was urged that by 31st March 2000, the date of the repeal, the appeal filed by the tenant had already been dismissed by the Appellate Bench of the Small Causes Court on 21st February, 2000 and the Writ Petition under Article 227 of the Constitution was filed after the date of the repeal. Consequently, it was submitted that on the date of the repeal, no proceedings were pending under the repealed Act and that, therefore, the execution was not competent and the decree itself was inexecutable.
(ii) In order to consider the correctness of the submission which has been urged, it would be necessary, at the outset, to advert to Section 3(3) of the Bombay Rent Act, which made provision for the commencement and duration of the Act. The Rent Act of 1947 provided in Sub-section (2) of Section 3 the period for which it was to remain in force and that provision was amended from time to time so as to provide by the last of the amendments that it would expire on 31st March 2000. Section 3(3) then provided that Section 7 of the Bombay General Clauses Act, 1904 shall apply upon the expiry of the Act or upon any provision thereof ceasing to be in force in any area, as if it had then been repealed by a Maharashtra Act. Since Section 3(3) makes a reference to the provisions of Section 7 of the Bombay General Clauses Act, it would be necessary to extract for the present purposes the provisions contained therein:
'7. Effect of repeal. -- Where this Act, or any Bombay Act or Maharashtra Act, made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:--
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.'
Clauses (c) and (e) of Section 7 are material for the purposes of the present case. Insofar as is relevant, what the statute lays down in Clause (c) of Section 7 is that unless a different intention appears in the repealing enactment, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. Similarly, under Clause (e), the repeal shall not affect any legal proceeding or remedy in respect of any such right, privilege, obligation, or liability and these may be instituted, continued or enforced, as if the repealing Act had not been passed. Therefore, the plain consequence of Section 3(3) of the earlier Rent Act of 1947, when read in the context of Section 7 of the Bombay General Clauses Act, 1904 to which it refers, is that the right of the landlord to execute the decree which was passed during the tenure of the Rent Act of 1947 would not be divested notwithstanding the enactment of the repealing Act. Whether a different intention appears from the repealing Act is a point which would, of course, have to be considered separately.
(iii) A reference may now be made to the provisions of Section 58 of the Maharashtra Rent Control Act, 1999 which provides thus :
'S. 58. Repeal and saving.-- (1) On the commencement of this Act, the following laws, that is to say,--
(a) the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947);
(b) the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 (C. P. and Berar Act XI of 1946) including the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 and
(c) the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (Hyd. Act No. XX of 1954) shall stand repealed.
(2) Notwithstanding such repeal :--
(a) All applications, suits and other proceedings under the said Acts pending on the date of commencement of this Act before any Court, Controller, Competent Authority or other office or authority shall be continued and disposed of in accordance with the provisions of the Acts so repealed as if the said Acts had continued in force and this Act had not been passed;
(b) the provisions for appeal under the Acts so repealed shall continue in force in respect of applications, suits and proceedings disposed of thereunder;
(c) any appointment, rule and notification made or issued under any of the repealed Acts and in force on the date of commencement of this Act shall insofar as they are not inconsistent with the provisions of this Act, be deemed to have been made or issued under this Act and shall continue in force until it is superseded or modified by any appointment, rule or notification made or issued under this Act;
(d) all prosecutions instituted under the provisions of any of the repealed Acts shall be effective arid disposed of in accordance with the law.'
By Section 58 of the New Act, the provisions of the Bombay Rent Act, 1947 were repealed. The legislature, however, provided that notwithstanding the repeal, all applications, suits and other proceedings under the repealed Act pending on the date of commencement of the Act before any Court shall be continued and disposed of in accordance with the provisions of the repealed Act. Moreover, it was provided that the provisions of appeal under the Act which was repealed, shall continue in force in respect of ail applications, suits and other proceedings thereunder.
(iv) As already noted, the Appellate Bench of the Small Causes Court in the present case dismissed the appeal filed by the Applicant on 25th February, 2000, but the execution of the decree was on the request of the Applicant stayed until 23rd April 2000. The net result, therefore, was on the date on which the repeal of the earlier enactment came into force 31st Match, 2000, the stay granted by the Appellate Bench of the execution of the decree of the Court was operative and was to come to an end only thereafter on 23rd April, 2000:
(v) The question which has to be considered is as to whether any legislative intention was expressed by the State Legislature, while enacting the new Act to the effect that a decree which as in the present case was passed under the Old Act prior to 31st March, 2000 on the ground of a change of user and subletting, would be rendered inexecutable. This issue has to be considered having due regard to the well settled lest which has been formulated by the Supreme Court in a judgment of three learned Judges in Qudrat Ullah v. Bareilly Municipality, : [1974]2SCR530 . The Supreme Court there held that Section 6 of the General Clauses Act would apply generally in the absence of a special saving provision in the repealing statute, for when there is one then a different intention is indicated. The Supreme Court then held that 'in any case where a repeal is followed by afresh legislation on the subject, the Court has to look to the provisions of the new Act to see whether they indicate a different intention'. Insofar as the present case is concerned, it would be necessary to note that Section 13(1)(a) of the Bombay Rent Act, 1947 provided as one of the grounds of eviction, that the tenant has committed any act contrary to the provision of Clause (o) of Section 108 of the Transfer of Property Act, 1882. Section 108(o) of the Transfer of Property Act, 1882 provides that the lessee must not use, permit and build property for a purpose other than that for which it was leased. Insofar as this case is concerned, it would be necessary to notice that the same ground of eviction is continued by Section 16(1)(a) of the new Rent Act which came into force on 31st March 2000. Similarly, it would be necessary to note that under Section 13(1)(k) of the Rent Act of 1947, one of the grounds for eviction was that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. The same ground is now continued by the legislature in Section 16(1)(n) of the new Rent Act. Similarly, there is no dispute about the fact that subletting continues to be a ground for eviction under Section 16(1)(e) of the new Rent Act. Having regard to these circumstances, it is thus apparent that while enacting the new Rent Act, the Legislature has duly continued to recognise and enforce a change of user and subletting as grounds on which a decree for eviction can be passed in favour of a landlord and against a tenant under the new legislation. There is absolutely no change in these two grounds which as already noted furnished a statutory ground for eviction under the old Rent Act of 1947 and which continue to remain available grounds for eviction under the new Rent Act. This circumstance, in my view, is sufficient to indicate that it could not possibly have been the intention of the legislature that a decree for eviction which was passed in favour of a landlord, as in the present case on account of a change of user and subletting would be rendered inexecutable because the appeal had been disposed of by the Small Causes Court before the date on which the new Rent Act came into force. From that perspective, the question as to whether the Writ Petition which had been filed under Article 227 of the Constitution was a proceeding under the Rent Act need not detain me, for even if as is sought to be urged on behalf of the Applicant, the Writ Petition under Article 227 is not regarded as a proceeding under the Act, it was not the intention of the legislature to render a decree that was validly passed under the old Rent Act of 1947 inexecutable upon the enactment of the new Rent Act. That is obviously so because it could not be the intention of the legislature that a landlord in whose favour a decree of eviction was passed on the ground of subletting and change of user under the Rent Act must be driven to the filing of a fresh suit for eviction on those very grounds which the legislature has continued to recognise upon enforcement of the new Rent Act. The decree of the Small Causes Court was confirmed by the Appellate Bench and the Writ Petition which was thereafter filed by the Applicant was dismissed by this Court in October 2000. That decree which is validly passed under the old Rent Act of 1947 is capable of being executed notwithstanding the repeal of the earlier Rent Act.
In Rabindra Nath v. Gour Mondal, : AIR1957Cal274 , a Bench consisting of five Learned judge of the Calcutta High Court held that ordinarily no action can be taken under a temporary statute after it has expired and all proceedings pending on the date of its expiry terminated automatically. But, there may be provisions to the contrary in the Act itself, and it has to be seen whether it contained any provisions indicating an intention that even after its expiry it would remain alive for certain purposes. Similarly, it has been held by a Bench of five learned Judges of the Calcutta High Court in Tarak Chandra v. Ratan Lal, : AIR1957Cal257 , that in the case of a temporary statute no proceedings can be taken under it after its expiry and proceedings already commenced terminate ipso facto, unless there is a special provision to the contrary. For the reasons already indicated the Rent Act of 1947 did contain provisions to the contrary, specifically in Section 3(3). Moreover, the new Rent Control Act which came into force on 31st March, 2000 does not evince any intent to render inexecutable a decree passed, as in the present case on the ground of subletting and change of user, under the Rent Act of 1947.
B. The second submission which has been urged is based on the principle that once an order is passed by the Appellate Court confirming, varying or setting aside the decree of the Trial Court, the decree of the Trial Court must necessarily merge into the decree of the Appellate Court. There can be no dispute about this proposition and indeed that has been a well settled position in law. This has been so laid down by a judgment of a Division Bench in Dayaram Kashiram Shimpi v. Bansilal Raghunath Marwari, reported in 7952 B.LR. 30 and in a judgment of Chief Justice M. C, Chagla in Hussain Sab v. Sitaram Vighneshwar, AIR 1953 Bombay 722. It was urged that execution was sought in the present case of the decree of the Learned trial Judge which had merged with the judgment of the Appellate Bench of the Small Causes Court. There is no substance in the submission. In the present case, the Respondents moved for the execution of the decree before the Small Causes Court. At that stage, it is common ground, the drawn up decree was still not available. However, there is no dispute about the fact that a certified copy of the judgment of the Appellate Bench of the Small Causes Court was duly furnished in the Course of the execution proceedings once it was available. The Appellate Bench has taken due note of this in paragraphs 23 and 24 of the judgment. In these circumstances, there is no merit in the submission which has been urged.
C. The third submission which has been urged is that the case of the Applicant was that the decree of the Small Causes Court was vitiated by fraud. Two contentions were urged in this connection before the Small Causes Court: (i) The Respondent-landlords had not disclosed before the Small Causes Court that the probate of the Will of the original landlord, Purushottam Lalji, had still not been obtained and (ii) All the co-owners had not been joined as parties to the suit for eviction. The Learned Judge of the Small Causes Court before whom the interim notices came up for hearing, was of the view that it was not open to him to go behind the decree and to consider the allegations of fraud. The revisional bench however, quite correctly held that it was open to the executing Court to entertain an objection on the ground that the decree was vitiated by fraud. The Bench of two Judges of the Small Causes Court has considered the question as to whether there was any substance in the plea that the decree was vitiated by fraud. The reasoning of the Small Causes Court is contained in paragraphs 18 and 19 of the impugned judgment and order. There is absolutely no merit in the contention that the decree was vitiated by fraud. The suit for eviction was admittedly filed by co-owners of the property who claim under a registered deed of partition dated 14th December, 1972. The Plaintiffs before the Small Causes Court did not claim any right under the Will of the deceased Purushottam Lalji and, therefore, there was no question of their obtaining a probate before either filing, the suit or executing the decree. In fact, it is material to note that the premises were let out by the Plaintiffs themselves to the Defendant and in these circumstances, the revisional Court has quite correctly held that the Applicant was estopped from denying the title of the landlord in view of the provisions of Section 116 of the Evidence Act. Further, under Section 5(3) of the Rent Act of 1947, the expression 'landlord' is defined to mean any person receiving, or entitled to receive, rent in respect of any premises. There is no dispute about the fact that it was the Respondent landlords who had let out the premises to the tenant and were in fact, in receipt of the rent. The second objection which was sought to be urged was that the suit was not maintainable on the ground that all the co-owners were not impleaded. There is absolutely no merit in that contention since it is now a well settled position in law that a suit for eviction even at the behest of one of the co-owners of the property is maintainable.
5. Finally, it was sought to be faintly urged that the rules of the Rent Act have not been saved on the expiry of the old Rent Act. There is no merit in the contention which in any event has not been seriously pressed.
6. Before concluding, it would be necessary to record that in paragraph 1 of the impugned judgment of the Small Causes Court an observation has been made about the manner in which the Learned Counsel who appeared on behalf of the Applicant conducted the matter. Though the Civil Revision Application has been dismissed, it is necessary to clarify that these observations are not appropriate and do not have the approval of this Court.
7. In these circumstances, I do not find any merit in the submissions which have been urged on behalf of the Applicant. The Civil Revision Application is accordingly rejected.
8. On the request of the Learned Counsel appearing on behalf of the Applicant time to vacate the premises is granted for a period of six months subject to the filing of the usual undertaking of all adult members of the family and the payment of all outstandings on account of the arrears of rent within a period of four weeks from today.
Parties to act on a copy of this order duly authenticated by the Sheristedar/P.S. of this Court.