Jagannadha Rao, J.
1. The following questions of law arise for consideration in these two appeals :
(1) Whether determination of a contracutal tenancy by notice to quit under S. 106 of the Transfer of Property Act or otherwise, or the passing of a decree for eviction by a civil Court, during the ten year period of exemption become null and void if, during the pendency of the suit in the trial Court or Court of appeal the said period expires ?
(2) Whether a decree for mesne profits likewise obtained for the period when the building was not coverned by the Rent Control Law, becomes ineffective and is liable to be set aside when the period of exemption of ten years expires during the pendency of the appeal
2. The following facts in C. C. C. A no. 78/81 are material. The leease in favour of the respondent in this appeal commenced on October 7, 1972, the rent being Rs. 750/- per month. The responent-landlord gave a notice under S. 106 of the T. P. Act on December 23, 1978, terminating the tenancy by the ned of January, 1979. The suit for possession and for past damages at the rate of Rs. 2,000/- per month for the months of February, March, April, 1979 was filed on April 28, 1979. According to the landlord the building was constructed in 1972 and according to the law as it stood then, the suit was filed in civil Court. The tenant did not dispute the date of construction of the buiilding as 1972. The plaintiff as P. W. 1 stated that he pruchased the open land in September, 1969 for Rs. 10,000/- and constructed the godown in question in 1972-73, and that the defendant-appellant is his first-tenant. Apart from not disputing these facts, the tenant as D. W. 1 stated that the building was at the time of his occuparion just completed and there was no plastering or flooring. The above facts would, in our view, leave no doubt that the building was in fact constructed in 1972 and let out to the tennant in the same year on October 7, 1972. We are therefore not prepared to accept the contention of the respondent that the matter has to go back to the lower Court for further investigation on this question. We are of the view that the building was constructed in 1972 and the lease commenced on October 7, 1972. We are also of the view that the Court below was right in holding that the notice under S. 106, T. P. Act issued on December 23, 1978 is in compliance wiht the siad section and that notice of two months is not necessary. The trial Court passed a decree for eviction on April 4, 1981 together with a decree for damges at the rate of Rs. 2,000/.- P. M., from February 1, 1979 till date of eviction.
3. It is on the basis of these facts that we will decide the two questions that have already been set out above.
4. In C. C. C. A. No. 135/82 three separate units beloging to the same landlord were let out to the same tenant as rents of Rs. 475/-, Rs. 500/- and Rs. 525/- p.m. respectively. Three notices to quit under S. 106 of the T. P. Act were issued on August 23, 1979 terminationg the respective tenancies with the end of September, 1979. A single suit was filed in respect of three premises on February 28, 1980. According to the plaintiff, he purchased the land on April, 14, 1969 under Ex. A-16 and obtained municipal permission, Ex. A-1, for construction of January 17, 1972. The three godowns in question were constructed in 1972-73 and they were numbered subsequent to the grant of permit above mentioned. The plaintiff claimed possession and dagmages ar the rear of Rs. 3100/- p.m from October, 1979 till January, 1980 for all the three units put together and also future damages at the same rate from the date of suit. The trial court dismissed the suit on the ground that the tenant having filed an aplication for deposit of the rent before the Rent Controller in 1980 the building must be treated as having been constructed subsequent to 1957 so as to enable the civil court to pass a decree, as per the law that stood then. In the result, the suit was dismissed. In our view, the trial Court was wrong in nor referring to the relevant evidence mentioned above viz., the date of purchase of the site under Ex. A-16 and the municipal permit aplied for, for construction. Apart from that, when the tenant issued reply notices Exs. A-11, A-12, and A-13 to the landlord's notices under S. 106 of the T. P. Act viz., Exs. A-8, A-9 and A-10 there was no plea that the buildings were constructed before 1957 and that the termination notices were invalid. Further the plaintiff as P. W. 1 stated that he purchased the plot in 1969 and started constructed in January 1972 and completed construction in June-July of 1973 and filed Ex. A-1 permission issued by the municipality for construction dated Januray 1, 1972. Apart from the fact that the tenant filed a single R. C. No. 91/80 before the Tent Controller for deposit of the rents of the three premises and withdrew the said petition and thereafter filed a petition R. C. No. 94/80 for fixation of fair rent, there is no evidence adduced for the tenant to show that the buildings were constructed befoe 1957. We, therefore, accept the evidence adduced on behalf of the landlord and hoeld that the three premises in question were constructed in June, July, 1973. The learned counsel for the landlord agrued that the three premises must be treated as a single premise let out for Rs. 1500/- but this contention cannot be accepted in view of the separate leases, separate rentals, separate notices issued under S. 106 of the T. P. Act. As already stated, the suit was dismissed on November 25, 1981 and the landlord had filed this appeal. The same two questions referreed to above also arise in this appeal.
5. The learned counsel for the appellant-tenant in C. C. C. A. No. 78/81, Sri. B. Nalini Kumar representing Sri K. G. Kannabhiram, contended that the notice of termination of the contractual tenancy issued under S. 106 of the T. P. Act and the decree for eviction-all being within the ten years period of exemption - lapsed upon the expiry of the period of ten years and that thereafter the building is governed by the Rent Controller law. According to him, the decree passed by the trial Court has notonly become inexecutable but is liable to be set aside and the suit dismissed. The Court is bound to take notice to subsequent events which are obtaining at the time of passing of the appellate decree and the defenndant becomes a tenant not only for the period later the expiery of ten years but even retrospectively during the ten years period of exemption. For that reason the decree for mesne profits passed in respect of the period of exemption is also liable to be set aside. The above arguments were adopted by Sri. D. Mohan Rao for the tenant in C. C. C. A. No. 135/82.
6. Sri Murali Narayan Bung, the learned counsel for the landlord, in both the appeals contended that there is no special provision in the Rent Control Law in Andhra Pradesh overriding decrees already passed or for abatement of pending suits ro appeals and that the decre for evection must stand. A litigant cannot be prejudiced if the period of exemption granted under law expired on account of 'laws' 'delays'. An act or omission of Court cannot prejudice the rights of a party. It is aruged that, in any event, the decree for mesne profits covering the period anterior to the expiry to ten years when the building stood exempted from Rent Control Laws, cannot be set aside or made ineffetive even if the tenant becomes statutory tenant after the expiry of ten years. There is no anomaly in passing a decree for mesne profits ofr the earlier period and rent for the latter period after expiry of ten years.
7. Before adverting to the principles of law, it is necessary to refer to S. 2(ix) and relevant part of S. 10 of the A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter called the Act).
'Sec. 2 (ix) : 'Tenants'means any person by whom or on whose acccount rent is payable for a building and includes the surviving spouse, or any son or duaghter, of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour.'
'Sec. 10 (1) : A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Ss. 12 and 13............'
It may be noted that Ss. 10 (2) to 10 (8) provide for eviction on various grounds such as wilful default etc.
8. Sections 32 (b) of the Act provided that the provisions of the Act did not apply to 'any building construted on or after the 26th August, 1957'. Under S. 33, the provisions of Madras Act (25 of 1949) and Hyderabad Act (20/54) were repeated, with a saving clause similar to S. 6 of the General Clauses Act.
9. Now, a contractual tenancy may expire by efflux of time or by notice to quit issued in terms of S. 106 of the T. P. Act. These modes are covered by S. 11 (a) and (h). Other modes of determination are set out in S. 111 (B) to (g) of T. P. Act. When a person has been in possession as tenant and continues to be in possession after determination of the tenancy, without the consent of the landlord, he is called a 'tenant sufferance' as distinguished from a person who to start with, is a trespasser. On the other hand, a tenant is a 'tenantholding over', if he remains in possession after the determination of the lease and the lessor accepts rent from him or otherwise assents to his continuing in possession, and in such a case, the terms of the original contract hold good and a fresh notice to quit under S. 106, T. P. Act is necessary for evicting such a tenant holding over.
10. The expression 'Statutory tenant' is not be found in the A. P. Act or in any rent control legislation of any other State. It is an expression coined by the Judges in England. Under the various State statutes, 'tenant' generally includes any person continuing in possession after the termination of his tenancy. Such a person would not be a tenant under the oridinary law but is still recognised as a 'tenant' by the rent control legislation. The statutory tenant is, by virtue of the inclusion in the definition of 'tenant', placed in the same footing as a 'contractual tenant' so far as rent control legislation si concerned . (vide v. Dhanapal Chattiar v. Yesodai Ammal : [1980]1SCR334 (decided by seven Judges of the Supreme Court). The distinction between contractual tenancy and statutory tenancy is thus completly obliterated by the rent control legislation. Though genetically, the parentage of these two legal concepts is differetn, one owing its origin to contract and the other to rent control legislation, they are equated with each other and their incidents are the same. This right is heritable even in regard to non-residential preemises. Vide Gian Devi v. Jeevan Kumar : AIR1985SC796 .
11. It is necessary to briefly trace the recent changes in the law in relation to the rent control law, in Andhra Pradesh.
12. The Andhra Pradesh Act (15 of 1960) provided in S. 32 (b) that all buildings constructed on and after 26-8-1957 were exempt from the provisions of the said Act. But the position changed after the recent judgment of the Supreme Court in Motor General Trader's case (AIR 1984 SC 121). There the Supreme Court held that S. 32 (b) of the Act was ultra vires of Art. 14 of the Constitution. It was held that by the lapse of time, the non-discriminatory piece of legislation has become discriminatory, the date 26-8-57 no longer being a date permitting valid classification between buildings contructed before and after that date. It was declared that, until the Legislature or the Government, brought about some other vlaid principle of exemption, all buildings, whether constructed before 26-8-1957 or after, would be governed by the Act. The Supreme Court also observed in the penultimate paragraph of the judgment that this delcaration of law 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 alrleady taken possession of the building in question pursuant thereto. In other words, the declaration of law was, to that extent, to be prospective from 26-10-1983.
13. In accordance wiht the principles enunciated in Motor General Trader's case (AIR 1984 SC 121), the Governor of Andhra Pradesh, while exercising power under S. 26 of the Act issued an order in the A. P. Gazette, exempting '(a) all buildings for a period of ten years from the date on which its construction is completed and (b) buildings, the monthly rent of which exceeds rupees one thousand.'
14. After the above exemption order was passed on 29-12-1983, the queestion arose as to the effect of the siad order. A Divisiion Bench of this Court held in Sr. Administrative and Accounts officer v. E. P. B. : AIR1985AP96 , that the atbove exemption applied to all the buildings for a period of ten years from the date of thier construction, whether the construction was before or after the issuance of G. O. Ms. No. 636 dated 29-12-1983. In other words, the exemption was held to apply to buildings constructed anterior to the G. O., as well as those constructed subsequent thereto.
15. The effect of the above judgment and the G. O., therefore is that buildings whenever constructed, whether before 29-12-1983 or therafter stood, for a period of ten years, exempt from the operation of the provisions of the Act whatever be their rent; but with the expiry of ten years after construction, the exemption was to continue only in respect of buildings the montly rent of which exceeded one thousand rupees. In other words, after the expiry of ten years, buildings the monthly rent of which did not exceed one thousand rupees, come under the purview of the Act, the moment of the period of ten years expired from the date of construction. The constitutional validity of the classification made in this G. O., has also been upheld recently by another Division Bench in Shankar Rao v. Govt., of Andhra Pradesh (1985) 2 APLJ (Notes) 40.
16. That leads us to a consideration of the effect of the expiry of the period specified in the G. O., on a tenant at sufferance or on a decree for possession and profits, which has not been executed within the ten year period. Three stages can, in this context, be visualised, all in the following sequence :
(i) Where the commencement and expiry of the contractual tenancy occur within the ten year period of exemption.
(ii) Where the commencement of the contractual tenancy is during the exemption period but the expiry of such tenancy is after the lapse of the ten year period; and
(iii) Where the commencement and expiry of the contractual tenancy are both after the lapse of ten years exemption period.
17. On account of the inclusive definition of tenant in S. 2 (ix) of the Act, the situations (ii) and (iii) do not present much difficulty. In both cases, the termination of the contractual lease falls outside the ten year exemption period aand at the time when the Act started applying to the building. The building having come under the purview of the Act by the dtate of expiry of the contractual tenancy, the tenancy becomes statutory, immediately on the termination of the contractual tenancy. In fact, the termination has no legal effect. By termination of tenancy, we mean, any of the modes specified in S. 111 of the T. P. Act including expiry of period of contractual lease or notice to quit etc.
18. But situation (i) gives scope for controversy. Here, both on the date of commencement and of determination of the contractual tenancy, the buidling is exempt. Obviously, there is no objection to determine such a lease under S. 106 of the T. P. Act, or even to file a civil suit for possession and mense profits. Not is there any impedidment in the way of the Civil Court from passing a decree for eviction and mesne profits within the ten year period for S. 10 (1) of the Act has no application at such a stage.
19. That is what indeed happened in the appeal C. C. C. A. No. 78 of 1991. The building was constructed in 1972, the quit notice was given on 23-12-1978, the suit filed on 28-4-79 and the decree for possession and mesne profits for the period from February, 1979 passed by the trial Court on 4-4-1981. All these events took place with in the exempted period of ten years. It is only thereaffter in 1982 for the first time that the building has come under the Rent Control Law. Long before 1982, the contractual tenancy had been determined by notice, the suit filed and a decree also obtained for possession and mesne profits. The factual position in C. C. C. A. No. 135 of 1982 is also similar. The ex-tenant contends that even so, the suit is now liable to be dismissed inasmuch as the ten year period of exemption has now expired and the suit is now pending at the appellate stage.
20. In our view, the above argument on behalf of the tenant is correct and is suported by several rulings of the Supreme Court. Before referring to those ruleings, we shall refer to the doctrine of merger of decrees and the duty of the appellate Court to apply the law as on the date of passing the appellate decree.
21. When the appellate Court decides an appeal either affirming, reversing or modifying the decree of the trial Court, the decree of the trial Court merges in the decree of the appellate Court but whether the decree of the appellate Court is one of affirmance, reversal or modification, the appellate Court, in the eye of the law, always passes a fresh decree. It cannot be argued that in cases of affimance of decrees, there is no fresh decree passed by the appellate Court as in cases of reversal of decrees of trial Court, vide Gojer Brothers v. Ratan Lal : [1975]1SCR394 and Collector of Customs, Calcutta, v. East India Commercial Co. Ltd, : [1963]2SCR563 . Viewed in that light, the Court passing the decree either at the trial stage or at the appellate stage has to take note of subsequent events, such as the change in the law and mould the decree accordingly vide Bai Dosabai v. Mathurdas : [1980]3SCR762 . In our view, the Court has also to take into account any subsequent change in the legal relationship occurring betwen the parties by virtue of the subsequent operation of a previous law, such as the notification issued by the Government on 29-12-1983.
22. We shall first deal wiht the three cases from Madras, Chandigarh and Uttar Pradesh containing express provisions overriding decrees of rights vested in the landlord.
23. In the Supreme Court case from Madras K. Balakrishna Rao v. Haji Abdully : [1980]1SCR875 the building locaing Modern Cafe, was initially outside the purview of the 1949 rent law becuase the building was a non-residential one with a rental value less than Rs. 400/- p.m. by a notice to quit the contractual tenancy was determined with effect from 29-12-1964 and a suit was filed on 2-3-1964 in the civil court for eviction and damages at the rate of Rs. 6,000/- p.m. The building camse under the Rent Law by the Amendment Act of 1964, dt. 10-6-1964. The definition of 'tenant' in S. 2 (8) of the Madras Act is similar to the definition of 'tenant' in S. 2 (ix) of the Andhra Pradesh Act, in the sense that it includes a tenant who is continuing in possession after the determination of the tenancy. S. 3 of the Amending Act of 1964 expressly provided that every proceeding pending before any Court or authority etc., on the date of the commencement of the amendment would abate and that all rights and privileges which may have accrued beofre such date to any landlord shall cease and determine and shall not be enforeceable, unless the decree was executed and satisfied before such date.
24. It is true, as contended for the landlord, that Venkataramaiah, J., relied, in the above decision of the Supreme Court, to a large extent on the express provision in S. 3 of the 1964 Amending Act. But it has also been observed (vide paras 22 to 24 of AIR) that even though by 10-6-1964, when the amending law applied, the building was not a 'builidng' let under the rent law, and the occupation was not as tenant from 1-3-1964, still the words in S. 2 (2) of that Act defining 'building' applied to any building the tenancy of which was terminated, before the Act applied to it. Reliance was placed also on the definition of tenant in S. 2 (8) of the Act that the 'tenant' was a tenant under the Act if the occupant was once a tenant and his tenancy was determined and he contiuned in occupation on the date of the 1964 amendment. In our view, these observations are binding on us and proceed on a consideration of S. 2 (2) and S. 2 (8) of the Madras Act which are similar to S. 2 (iii) and S. 2 (ix) of the Andhra Pradesh Act, defining 'building' and 'tenant' respectively. Hence that decision is not distinguishable at the instance of the landlord merely on the ground that in the Andhra Pradesh Act there is no provision similar to S. 3 of the Madras Act of 1964.
25. The case from Chandigarh considered by the Supreme Court in reported in Mani Subrat Jain v. Raja Ram Vohra : [1980]2SCR141 . It is also similar to the Madras case. In that case, Chandigarh was inistially outside the purview of the E. P. Act, 1949. The tenant was sueed and a decree for eviction was obtained on 9-10-1972. The rent Act was extended to Chandigarh on 4-11-1972. The High Court held in favour of the tenant. The Supreme Court while dismissing the appeal, no doubt, referred to the special provision in S. 13 of the E. P. Act that a tenant in possession of a builindg shall not be evicted therefrom in executiion of a decree passed before or after the commencement of the Act or otherwsie and whether before or after the termination of tenancy. But their Lordships cannot be taken to have decided the case only on the basis of this expresss provision. They also referred to the definition of 'tenant' as including a tenant continuing in possession after the termination of the tenancy in his favour. Krishna Iyer, J, observed :
'It thus includes, by express provision, a quondam tenant whose nexus with the property is continuance in possession. The fact that a decree or any other process extinguishes the tenancy under the general law of real property does not terminate the status of tenatn under the Act having regard to the carefully drawn inclusive clause.'
It is therefore clear that the decision was not solely rested on the express provisions of S. 13 of that Act, but is equally based on the inclusive definition of 'tenant' as being a person in possession after the determination of the contractual tenancy.
26. The Supreme Court decided another case from Uttar Pradesh in Vineet Kumar v. Mangal Sain : [1984]2SCR333 arsing under the Uttar Pradesh Act 13 of 1972. In that case buildings were exempt from Rent Control Law for a period of ten years from the date of construction. The building was found to be constructed in 1971 and the tenancy was terminated some time in 1977 by a notice and a suit for eviction was filed. The trial Court decreed the suit on 23-2-1982 for eviction and also for arrers of rent and damages for use and occupation. The tenant filed a revision before the High Court. The High Court confirmed all the findings of the trial Court except in relation to arrears of rent. Against the said judgment the tenant preferred an appeal to the Supreme Court. By the date of decree of the trial Court i.e., 23-2-1982 the building contemplated ten years. S. 39 which is a special provvision, deals with pending suits for eviction in relation to buildings brought under the regulation for the first time. It states 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 U. P. Act of 1972, 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 9% P. A., and the landlord's full costs of suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso of S. 20 (1) or in S. 20 (2) (b) to (g) and the parties shall be entitled to make necessary amendments in their pleading and to adduce additional evidence where necessary. S. 40 of the Act provides that where any appeal or revision arising out of a suit for eviction of the tenaant from any building to which the old Act did not apply, is pending on the date of commencement of the 1972 Act, it shall be disposed of in accordance wiht the provisions of S. 39.
27. While it is true that the Supreme Court laid stress on the special provision in S. 39, they also referred to the general provision in S. 20 of the Act which is similar to S. 10 (1) of the A. P. Act and stated that S. 20 of the new Rent Act of 1972 provided a bar to suit for eviction of a tenant except on the specified grounds provided in this section. In our view the abovesaid observations of the Supreme Court go to show that even apart from the special provision S. 39, the provisions of S. 20 of that Act, were in themselves held sufficient for dismissing the suit.
28. We shall now advert to some other rulings of the Supreme Court whcih are also in favour of the tenant and in which without any special or express provision overriding the rights of the landlord after the issuance of a notoce to quit, a provision similar to S. 10 (1) of the Andhra Pradesh Act was in itself held sufficient to dismiss the suit.
29. The earliest of the rulings in this category is the decision of the Supreme Court from Bombay repored in S. B. K. Oil Mills v. Subhash Chandra, : [1962]2SCR159 . It was decided by a Constitution Bench of the Supreme Court. In that case, the appellants executed a rent note on 11-9-1942 for a period of 15 years and the tenancy expired on 14-3-1957. The landlord filed a civil suit on 25-4-1957 for possession. Meanwhileunder S. 6 of the Bombay Rent Act (Act 57 of 1947) a notification was issued applying part-II of the Act to the area where the property was situated. The tenants claimed ptorection under S. 12 of Part-II of the Act. The trial Court decided agianst the tenants. The tenants filed a revision to the High Court which was dismissed holding that S. 12 of the Act was proppective and did not apply to pending cases. The tenants appealed to the Supreme Court. The Supreme Court framed two questions (1) Whether by virtue of the proviso to S. 50 of the Act the provisions of Part-II including S. 12 were not expressly made applicavle to all suits; and (2) whether by virtue of S. 12 (1) of the Act, which applied independently by extension of the Act to the area where the property was situated, the suit was incompetnet. Under question (1) the Supreme Court referred to the provisio of S. 50 of the Act which stated that pending proceedings stood transferred to the special Court. The learned Judges of the Supreme Court discussed the proviso to S. 50 but did not decide question No. 1 framed by them. They however rested their conclusion solely on question (2) i.e., upon S. 12 of the Act as is clear from paras 11 to 13 to the judgment. S. 12 (1) of that Act reads :
'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 and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as theye are consistent with the provisions of this Act.'
The provisions of S. 12 (2) deal wiht institution of suits for revoery of possession. The Supreme Court clarified that while the language of S. 12 (2) and (3) is clearly propsepective in the sense that they apply to the suits to be instituted after the Act became applicable to the area in question, such considerations did not however apply to S. 12 (1) of th eAct. Hidayatullah, J (as he then was) a person whose tenancy was determined and who contiuned in possession and that S. 12 (1) was prospective, observed :
'While it is the ordinary rrule that substantive rights should not be held to be taken away except by express provision or clear implication, many acts, though prospective in form have been given retrospective operation, if the intention of the Legislature is apparent. The sub-section says that the landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays o ris ready and willing to pay the standard rent etc., and observes and performs the other conditions of the tenancy. In other words no decree can be passed granting possession to the lanlord, if the tenant fulfils the conditions above mentioned..........Then again S. 12 (1) enacts that the landlord shall not be entitled to recover possession; not, 'no suit shall be instituted by the landlrod to recover posession'. The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed.'
Accordingly the Supreme Court held that S. 12 (1) which is similar to S. 10 (1) of the A. P. Act....... applied when the Court was passing a decree. This conclusion followed without reference to the proviso to S. 50.
30. Another case arising under the Bombay Agricultural Tenancy Act (Act 67 of 1948) decided by the Constitution Bench of the Supreme Court is also in point, Mohal Lal v. Tribhovan, AIR 1983 SC 358. In that case the Bombay Act 67 of 1948 was extended to Baroda on 1-8-1949. However, there was a notification dt. 24th April, 1951 which excluded the operation of the Act. The notice to quit issued in the case was effective from the endo of May, 1951 and the suit was thereafter filed. The trial Court and the appellate Court decreed the suit for possession but the High Court dismissed the suit. On further appeal to the Supreme Court, it was noticed that the notification dt. 24th April, 1951 was subsequently cancelled by the State Government by another notification dt. 12-1-1953. Thus when the matter was pending in the first appellate Court, the area came under the Tenancy Act. Their Lordships of the Supreme Court while dismissing the landlord's appeal observed 'if the landlord had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree which may have become final between the parties, that decree may not have been reopened and the execution taken thereunder may not have been recalled. But it was during the pendency of the suit at the appellate statge that the second notification was issued cancelling the first. Hence, the court was bound to apply the law as it found on the date of its judgment. Hence, there is no question of taking away and vested rights in the landlord.'
31. The constitution Bench of the Supreme Court in refiquenessa v. Lal Bahadur Chetri : [1964]6SCR876 decided a similar case arsing from Assam in 1964. A lease was executed between the landlord and the tenant and was due to expire on 12-2-1952. A notice to quit was served on him to vacate by that date. The landlord filed a suit for eviction in 1952. The trial Court decreed the suit and the lesse filed an appeal. While the appeal was pending the Assam Tenancy Act (12 of 1955) was passed and came into effect from 6-7-1955. The appellate Court called for a finding and later allowed the appeal and dismissed the suit. The landlord prefered an appeal to the High Court whcih summarily dismissed the appeal. The Supreme Court while dismissing the appeal preferred by the landlord noticed under Section 5 (1) of the Act provided that no tenant shall be evicted except on the grounds mentioned in the Act. Rejecting the argument that the Legislature has not expreslly taken away the rightrs vested in the landlord, and that this intention can be inferred by implication, Gajendragadkar, C. J., observed :
'We ought to add that restrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the contxt where it occurs.......'
32. The provision in S.5(1) (a) to the effect that the tenant shall not be evicted except on the ground of non-payment of the rent etc. Was relied upon and it was observed ' if the Legislature had intended that this protection should operates prospectively, it would have been easy to say that the tenant shall not bes sued iln ejecting , such an expression would have indicated that the protection is afforede to the suits brought after the Act came into force and that might have introduced the element of prospective operation; instead, what is prohibited by S. 5(1) (a) is the eviction of the tenant and was in evitably, the section myst come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate Court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by S. 5(1)(A) though they may have been initially instituted before the Act came into foece,' and therefore the appeal was dismissed.
33. Recently a similar question arose before the Supreme Court in a case from West Bengal Lakshmi Narayan Guin v. Niranjan Modak, : [1985]2SCR202 . In that case the notices to quit was issued and the suit for eviction was filed on 12-6-67. The trial Court passed a dectee on 17-6-1969 and the decree was confirmed on appeal on 16-1-1970 but the High Court allowed the appeal on the ground that by a notification issued during the pendency of the first apeal the West Bengal Premises Tenancy Act of 1956 was extended to the town in question. The High Court found that the notice of eviction issued by the landlord was not in compliances with S.13(6) of the Premises Tenancy Act. The appeal preferred by the landlord to the Supreme Court was dismissed. S. 13(1) of that Act provided that not withstanding anything to the contrary iln any other law, no order or dectee for recovery of possession of any premises shall be made by any Court in favour of the landlord againsr a tenant except on one or more of the grounds mentioned therein. Pathak, J. Observed:
'Thus the decree here refers 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 whices disposed of the suit finally. It is well settled that when a trial Court decreed a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit and when the appelate dectee 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....... to our mind therefore sub-sec. (1) of S.13 of the Act can be invoked by a tenant during the pendency of an appeal against a trial Court decree.'
It was further observed that a change in law during the pendency of an appeal is bound to be taken into account by the appelate Court and that it governed the rights of the parties. The appeal of the landlord was dismissed.
34. The learned counsel for the landlord sought to rely upon the decision of the Supreme Court in Firm Amar Nath v. Tek Chand AIR 1972 SC 5148. This rulling is clearlly distinguishable. It may be seen that the notification of exemption in that case exempted all buildings for a certain period and it also saved suits filed in that period. A doubt arose whether the decrees should also have been passed within that period and it was held that was not necessary. Any observations made in that context, regarding delays by Courts, cannot, in our opinion, help the land lord.
35. Nor can the decision of the Supreme Court in Rameshwar v. Jot Ram, : [1976]1SCR847 come to the aid of the landlord. It is no doubt true that reference was made to the maxim `actus curiae neminem gravabit` as applicable to the law's delays but at the same time Krishna Iyer, J. Pointed out that if the right to the relief depended 'on the presence or absence of certain basic facts at the time the relief is to be ultimately granted', the above maxim could not help. In our view, the above decision is clearlyl distinguishable.
36. Thus it will be seen that even where there was no express provision extinguishing the rights accured to a landlord by way of a notice to quit or under a decree, the Supreme Court hoeld that a provision similar to S. 10 (1) of the Andhra Pradesh Act was retrospective by implication. The prohibition in S. 10 (1) of the A. P. Act therefore applies to every Court whether dealing with the suit, appeal or revision as the case may be. Amareswari, J., has taken a similar view in S. A. No. 363 of 1983 disposed of on 27-6-1985.
37. It has been further argued for the landlord that in provision in S. 10 (1) of the Andhra Pradesh Act there is only a prohibition against eviction and not a prohibition agianst the passing a decree for eviction.
38. We are unable to understand what purpose can be served by merely passing a decree which is absolutely inexecutable. It would be a waste of time and cannto serve any purpose. The Supreme Court in K. Balakrishna Rao v. Khaji Abdullah : [1980]1SCR875 referred (para 12) to the decision of the Madras High Court in Muhammadunny v. Melepurakkal Unniri, AIR 1949 Mad 765 decided by Rajamannar, C. J., and Venkataram Aiyar, J., who held that a decree, even if inexecutable can be passed. Having regard to the conclusions reached by the Supreme Court, it must be held that the Supreme Court has not approvced Muhammadunny's case. The Supreme Court also referred to an earlier decision of that Court, in B. V. Patankar v. C. G. Sastry, : [1961]1SCR591 permitting the passing of a decree. But that case is clearly distinguishable on account of the espress statutory provision in the Mysore Act which provided that nothing in the Order shall prevent a landlord from filing a suit for eviction of a tenant before a civil Court but that no decree for eviction passed by the civil Court shall be executed unless a certificated to that effect is obtained from the Controller. Hence, in our view, no purpose will be served by passing of such a decree which would be brutum fulmen and an idle formality
39. It is then aruged that a decree passed for eviction may be in a state of eclipse for a certain time and that it may again become operative when the exemption is again brought into force as happened in the case decided by the Supreme Court in Dularey Lodh v. IIIrd Addl. District Judge, Kanpur : [1984]3SCR743 .
40. It is ture that an executable decree may become inexecutable and be in a state of suspense and may again become executable by the applicataion of the doctrine of eclipse. But we do not consider it necessary in the present case to pass a decree for eviction and keep it in abeyance awaiting any Legislative or other executive action permitting the landlord to exercise his rights as on date of the suit.
41. At the same time, we do not think it necessary to drive the plaintiff to a fresh suit fi such a situation really arises. If a retrospective law is made by the Legislature or a valid action is tkaen by the Executive enablihg the landlord to exercise the rights accrued to him on date of suit, that would definitely result in extingushing or superseding the dismissal of the suit by the civil Court, and in that case, it would surely be open to the Court which dismissed the suit to reopen the same and dispose of the matter in accordance wiht such amended Law. There would indeed be no need for the landlord to file a fresh suit. We therefore hold point (1) in favour of the tenant.
42. We then come to the second question whether the decree for mesne profits passed in regard to the period when the buildings was exempt and the tenant was a tenant by sufference, survived.
43. On this question also, we are of the view that the tenant must succeed. A similar question arose before the Madras High Court in Sanjeevi Naidu v. Chittibabu Mudaliar, : AIR1953Mad473 . The contractual lease in that case was executed on 15-4-1941, at Rs. 25/- P. M, and it expired in 1947. The civil suit C. S. No. 115/47 was filed thereafter for possession and mesne profits. Against the main decree, O. S. A. No. 102/49 was filed by the tenant and dismisse. Against the decree for mesne pforits for the period after the decree for possession, the Official Referree ascertained the amounts and Rajagopalam, J., passed a decree on 2-11-50 against which the tenant filed O. S. A. 133/1950. The tenant raised a contention that in view of the Rent Act of 1949, he was not liable to profits as he must be deemed to be a tenant. The landlord also filed E. P. No. 34/50 for delivery and the tenant raised an objection under the Act, and Krishna Swami Naidu, J., dismissed the E. P., and the landlord filed O. S. A. No. 70/50.
44. Rajamannar, C. J., speaking for himself and Venkatarama Aiyyar, J., allowed the tenant's appeal O. S. A. No. 133/50 against the mesne profits decree and dismissed the landlord's appeal O. S. A. No. 70/50 agianst the dismissla of the E. P. After referring to S. 7 (1) of the Act which is similar to S. 10 (1) of the Andhra Pradesh Act, it was observed :
'So it may be taken as established that under the genral law the tenancy in favour of Chittibabu had been duly terminated. But the definition of 'tenant' in the Rent Control Act expressly includes a person continuing in possession after the termination of the tenancy in his favour. Chittibabu would certainly be such a person ............He must therefore be deemed to have contiunued all along in possession as a tenant. He would be a tenant holding over. Under the genral law a tenant holding over is deemed to be governed by the same terms as the terms of the 'tenancy' under which he came into occupation. One of such terms would be the payment of montly rent of Rs. 25/-.'
Accordingly, it was held that Chittibabu was a tenant within the meaningi of S. 2 (4) of the Rent Control Act as being a person by whom rent was payable at Rs. 25/- P. M., and as a person contiuning in possession after the tenancy determined. The decree for mesne profits was vacated. On the same grounds the dismissal of the execution petition was confirmed. The above decision therefore fully supports the tenant's case.
45. The Supreme Court in Shyam Charna V. Sheoji Bhai : [1978]1SCR710 made observations to a like effect. The premises in question stood exempt under the Madhya Bharat 1955 Act, the tenancy was determined with effect from 22-5-60, the suit filed on 25-6-60 and that the trial Court passed a decree on 3-11-62 for possession and mesne profits. Tthat decree was confirmed in appeal on 25-9-64 and second appeal. The tenant vacated on 4-10-64. A final decree for profits was passed a Rs. 4,000/- P. M., from 22-5-60 till date of delivery 4-10-1964. The building came under the 1961 Act on 3-12-1961, the New Act applied only if the suit was filed after the commencement of the 1961 Act. While rejecting the tenant's claim on the grounds that the suit was filed before the New Act of 1961 and hence outside the renat Act, and dealing wiht the situation as to what would have been the position, if the suit was filed after the 1961 Act, Unawalia, J., observed :
'In other words, if the provisions of the Act or the definition of the term 'tenant' therein could be applied for determining the rights and liabilities of the partis in the pending suit which had been instituted prior to the coming into force of the Act, then perhaps there would have been no difficulty in accepting the first contentin put forward on behalf of the appellant.'
It was also obsreved that S. 2 (i) of the Act defining 'tenant' similar to S. 2 (ix) of the A. P. Act, must be treated as 'retroactive' in operataion (vide para 6).
46. On the second point we are therefore of the view, that once the tenant is deemed to be a statutory tenant with retrospective effect, the period during the exemption also gets transfformed into a period of statutory tenancy and that the mesne profits decree is also liable to be vacated. But the tenant is liable to pay the arrers of rent at the contractual rate.
47. The fact remains that due to lapse of time in following the legal process has denied benefit of the exemption to the landlord. But we wish to point out that the landlord can now apply for fixation of fair rent. This was pointed out in Sanjeevi Naidu' case : AIR1953Mad473 and by the Supreme Court in the two cases in S. B. K. Oil Mills case : [1962]2SCR159 and the Vineet Kumar's case : [1984]2SCR333 . It is obvious that if, with effect from the date of such petition, the fair rent is fixed at an amount not exceeding Rs. 1,000/- P. M., the building would continue to be under the Rent Act; and similarly upon a finding that the fair rent is in excess of Rs. 1,000/- P.M., the building would fall outside the Rent Act.
48. Subject to the above, C. C. C. A no. 78/81 is allowed and the suit for possession and mesne profits is dismissed and instead a decree for arrears of rent from February, 1979 till daate of suit and thereafter is passed. Amounts, if any, paid by the tenant are, however, to be deducted. The defendant shall not be entitled to cost either, in the suit or the appeal.
49. In the same manner, subject to what is stated above, C. C. C. A. No. 135/82 is dismissed and the suit is dismissed subject, however, that there shall be a decree for arrears of rent, if any, from October, 1979 till suit and thereafter, amounts, if any, paid by the tenant are, however, liable to be deducted. The defendants will not be entitled to costs either in the suit or the appeal.
50. The appeals are disposed of accordingly.
51. Before parting with the case, we wish to point out that cases where the rent law is extended by notification to a particular town stand on somewhat different footing that those where the law intends to exempt a building for a period for years from the date of construction with a view to permit the owner to reliase the best return from his investement. It is reasonable, in the latter type of cases, to see that such exemption does not become illusory, merely due to the laws' delays. The Madhya Pradesh Act, 1961, the Orissa Act 31-58 and others save suits filed earlier or decrees obtained earliaer. The Bombay Act (57/47) saved pending appeals etc. It would therefore be for the Legislature to consider the question whether the exemption for a period granted by the law is to be effectively saved from the law's delays.
52. Lastly, we would like to place on record that the c ase has been ably argued to Sri B. Nalini Kumar for the tenant and by Sri. Murli Narayan Bung for the landlord.
53. Order accordingly.