Shashikant S/O Girdhardas Bagdi, Vs. Ratanlal S/O Kanhaiyalal Rathi - Court Judgment

Excerpt:
- - he submitted that reading such a clause would open pandora's box, creating new problems, like how long such permission was to survive etc. therefore, according to learned counsel for the respondent, the courts below rightly rejected the tenant's application as he failed to make out any ground for rejection of plaint in order vii rule 11 of the code of civil procedure.r.c. chavan, j.1. this revision is directed against dismissal by the learned district judge of applicant tenant's appeal against order passed by the learned judge court of small causes rejecting his application exh. 63 under order vii rule 11 of the code of civil procedure for rejection of plaint.2. facts relevant for deciding this revision are mostly not disputed. the respondent landlord applied to the rent controller for permission to issue quit notice to the applicant tenant under the c.p. and berar rent control order. such permission was granted on 10.01.1997. on 16.07.1999, the landlord filed regular civil suit no. 239 of 1999 for recovery of arrears of rent from 01.09.1996 to 31.07.1999. in the said suit on 18.01.2001 tenant's application for depositing rent was allowed. on 31.03.2000 the maharashtra rent control act came into force repealing c.p. & berar rent control act and order. on 08.01.2001 the landlord issued quit notice to the applicant terminating his tenancy and filed the suit no. 247 of 2001 on 16.06.2001 for applicant's ejectment and enquiry into mesne profits. written statement was filed by applicants on 26.09.2001 on 19.09.2003 application exh.63 was filed under order vii rule 11 of the code of civil procedure for rejection of plaint or dismissal of the suit. this was rejected by the learned trial judge by his order dated 28.07.2006 and appeal too was dismissed by impugned judgment3. i have heard both the learned counsel for appellant and respondent.4. the learned counsel for the appellant submitted that after the coming into force of maharashtra rent act on 31.03.2000, the c.p. & berar rent control order was repealed in terms of section 58 of the new act. clause 2(a) of the said section only saves only applications, suits and proceedings instituted under the old rent control act/ order. therefore, the suit filed after the repeal of old act was not tenable. in any case, the landlord could have also prayed for ejectment after issuing a quit notice when he filed regular civil suit no. 239 of 1999 and not having done so, the suit is barred under order ii rule 2 of the code of civil procedure (though such a plea was not taken before the courts below and was eventually not pressed). he submitted that suit is also hopelessly barred by limitation and therefore, the plaint ought to have been rejected. all these contentions were vehemently contested by the learned counsel for the respondent.5. plea of bar of order ii rule 2 c.p.c. was rightly not pressed by the learned counsel for the appellant as cause of action to claim ejectment had not at all accrued to the landlord when regular civil suit no. 239 of 1999 was filed, since notice terminating tenancy was itself given much later on 08.06.2001. so the only question is whether such a suit based on a notice issued in pursuance of permission granted under a repealed enactment was saved under section 58 of the new act or not.6. section 58 of the maharashtra rent control act may be usefully reproduced as under for ready reference: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;b) the central provinces and berar regulation of letting of accommodation act, 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; shall stand repealed.7. the learned counsel for applicant submitted that none of the subclauses of clause (2) save either permission granted or a notice issued to give rise to cause of action to file a suit. he submitted that if no application, suit or other proceeding under the act is pending on the date of repeal, relations of the parties would have to be regulated with reference to the provisions of the new act. he submitted that the learned district judge was in error in first finding a causus omissus and then supplying it. he relied on a judgment of this court in sadiquabai v. santaji sanstha reported at 1991 mh.l.j. 1174 to support his contention that phraseology in a clause could not be stretched to include what it did not contain. there can be no doubt about the proposition that it is impermissible to first find an omission and then supply it. words used in a piece of legislation must be given full effect and words which legislature has not chosen to use should not be added. the learned counsel for applicant therefore, submitted that the district judge was not justified in reading in the saving clause that permission to issue quit notice granted under the rent control order was also saved. he submitted that reading such a clause would open pandora's box, creating new problems, like how long such permission was to survive etc.his learned adversary submitted that the saving clause would be rendered meaningless if rights accrued from proceedings under the repealed act/ order were not saved. if a pending application was allowed to be dealt with under the old act notwithstanding repeal, but the order that may be passed in such proceeding was not permitted to be executed or implemented, continuance of such proceeding would be an empty formality. should a landlord in such a pending proceeding secure an order from the rent controller to issue quit notice, the landlord would not be able to issue a notice because this has not been expressly saved. he may not be permitted to file a suit on the basis of such notice because as from the date the new act came into force, a landlord may be able to recover possession only as per provisions of sections 15 and 16 of the new act. therefore, if full effect has to be given to the clause which saves pending proceedings, it must follow that effect must also be given to the result of such proceedings and rights accrued under such proceedings would have to be protected. this contention of the learned counsel for landlord has to be upheld since otherwise it will render the saving clause meaningless.8. the learned counsel for landlord submitted that in p. ratnam v. vimalchandra reported at 1973 mh.l.j.72, this court had held that what was contemplated by clause 13(1) (a) of rent control order was determination of lease and therefore, unless by a proper and legal notice the lease is determined it could not be said that permission granted by the rent controller is exhausted. this observation came in response to the argument that since earlier notice issued was defective, permission was exhausted. in abde ali v. haji abdul reported at 1992 mh.l.j. 1620, this court reiterated that the permission granted by the rent controller would not exhaust as long as the purpose to evict the tenant was not fulfilled.9. the learned counsel for the applicant tenant submitted that in any case, the landlord, who had obtained permission on 10.01.1997, did not issue any notice till 08.01.2001, i.e. for about three years and therefore, the period for acting upon the order had itself expired applying article 113 of the limitation act. the learned counsel for the respondent submitted that ordinarily, a tenant would appeal against such order of rent controller. therefore, landlord did not rush to issue a notice till he was sure that no appeal was filed. he submitted that since no limitation was prescribed for issuing notice article 113 had no application. cause of action to file the suit accrued only after the quit notice was issued on 07.01.2001 and was not complied with by the tenant. therefore, suit filed on 16.06.2001 was within limitation.10. relying on judgment in uttam v. vitthal reported at : air1997sc2695 , the learned counsel for the respondent rightly submitted that since the rent control order did not prescribe any limitation for issuing notice after permission was granted, general law under limitation act would not apply. he submitted that a landlord was not to gain anything from the delay. he bonafide waited reasonably in the expectation that tenant would challenge rent controller's order and only after finding that there as no challenge, issued the notice. therefore, according to learned counsel for the respondent, the courts below rightly rejected the tenant's application as he failed to make out any ground for rejection of plaint in order vii rule 11 of the code of civil procedure. present suit cannot be held as barred by provision of sections 15 and 16 of the new act, in view of the necessity of interpreting the saving clause, namely section 58 of the act, so as to make it meaningful, workable.11. in view of this, the revision application is rejected.