Banwari Lal and anr. Vs. Bal Kishan - Court Judgment

Jagat Narayan, C.J.

1. These two revision applications can be conveniently disposed of by one judgement as the same questions of law arise in both of them.

2. They arise out of the two suits for recovery of arrears of rent and for eviction from two shops owned by Balkishan plaintiff. The tenant of the shop in S.B. Civil Revision No. 41 of 1972 is Banwarilal and that of shop in S.B. Civil Revision No. 50 of 1972 is Nandlal. Both suits were filed on 15 11-1965. The premises are situated in Rajgarh town of Churu District. The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950)(hereinafter to be referred to as the Act) was published in the Gazette on 23-12 1950. Sections 1 to 4 and 27 to 31 of the Act came into force at once all over Rajasthan. The remaining sections were not in force in Rajgarh town when the present suit was instituted. They came into force during the pendency of the present suit on 31-3-67. The first date of hearing fixed in the two suits was 22-12-66. Both the suits were based on two grounds The first ground was that the tenant had neither paid nor tendered the rent due from him for six months. The second ground was that the shops were required by the landlord for his own use. Both the suits were contested by the defendants. The first date of hearing after the coming into force of the whole of the Act, in both the suits was 13-4-1957 On that date the defendants did not deposit the rent as contemplated under Section 13(4) of the Act On 18-5-67 they filed applications purporting to be under Section 13(4) of the Act and offering to make deposits but no deposit was made even then. On 19 8-70 the plaintiff filed applications that the defence against' eviction of the ground of default should be struck out under Section 13(6) of Act. These applications were opposed by the defendants. The trial Court held that when the provisions of Section 13 of the Act are extended to an area the words the first date of hearing' mean 'the first date of hearing after the coming into force of Section 13 of the Act in the area.' As no deposit was made as required by Section 13(4) of the Act, on 13-4-67, the defence of the defendants against eviction on the ground of default was struck out by the trial Court, The defendants appealed to the learned Additional District Judge who concurred with the learned Munsif and dismissed the appeals.

3. The learned Counsel for the defendants have contended that the provisions of Sub-sections (4), (5), (6) and (7) of Section 13 of the Act are not retrospective but are only prospective and have no application to a case where the provisions of Section 13 of the Act are extended to the area where the premises are situated during the pendency of the suit. They relied on the provisions of Section 27 of the Act on the decision of the Supreme Court in Chandrasingh Manibhai and Ors. v. Surjit Lal Ladhamal Chhabda and Ors. : [1951]2SCR221 .

4. In the above case their Lordships were called upon to interpret the provisions of Sections 12 and 50 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 (Act No. 57 of 1947) (hereinafter referred to as Bombay Act) Sub-sections (2) and (3) of Section 12 and the proviso to Section 50 of the Bombay Act which are relevant for the present case, run as follows-

(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increase has been served upon the tenant in the manner provided to Section 106, T P. Act, 1882.'

(3) No decree for eviction shall be passed in any such suit if, at the hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit.

Section 50 proviso-

Provided that all suits and proceedings (other then execution proceedings and appeals) between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situated in an area to which Part III applies, which are pending in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act; and thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings.

Their Lordships observed:

We are also inclined to agree with the view of the F.B that Section 12 is in terms prospective and not retrospective. Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force. It cannot apply 10 suits which were already pending when the Act was put on the statute book. Sub-section (6) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states 'in such suit' and not 'in any suit' can only be a suit referred to in Sub-section (2) and (3) of Section 12.

The above reasoning is equally applicable to Sub-sections (4) to (7) of Section 13 of the Act. I may mention here that their Lordships did not intend to hold that sub-s (1) of Section 12 of the Bombay Act was also prospective as was explained by them in their subsequent decision in Shah Bhojraj Koverji Oil Mills and Ginning Factory, v. Subhash Chandra Yograj Sinha AIR 961 SC 1596. It was held in this latter decision that Sub-section (1) of Section 12 of the Bombay Act was retrospective but Sub-sections (2) and (3) of Section 12 were prospective. Sub-section (i) of Section 12 of the Bombay Act runs as follows -

A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant paid, 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 as far they are consistent with the provisions of this Act.

The Bombay Act was amended in the year 1940 and Sub-section (3) of Section 12 after amendment stands as follows-

3. (a) Where the rent is payable by the month and there is no disputes regarding the amount of standard rent or permitted increases such rent or increases are in arrears for a period of six moths or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in Sub-section (4), the Court may pass a decree for eviction in any such suit for recovery of possession

(b) In any other case, as decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.

5. Section 27(1) of the Rajasthan Act runs as follows-

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

The grounds on which a tenant can be evicted are mentioned in Section 13(1) of the Act It has thus been expressly provided in our Act that Section 13(1) is retrospective and applies to all pending suits wherever the provisions of Section 13 are extended to any area. It follows by implication that the provisions of Sub-sections (4) to (7) of Section 13 of the Act are prospective and do not apply to pending suits when the Act is extended to any area. Nor does Section 13A have any application. It was only applicable to pending suits on the date on which the Amendment Act came into force namely, 9-6-65.

6. The court below thus erred in holding that Sub-sections (4) to (7) of Section 13 of the Act were applicable to the present suits which were pending when Section 13 was extended to Rajgarh on 31-3-67. The tenants cannot get the suits on the basis of default, dismissed on payment of rent and arrears on the first date of hearing after the enforcement of Section 13 of the Act. Nor can the plaintiff get the defence of the tenants against default struck out for non-payment of rent and arrears.

7. I accordingly, allow the revision applications and set aside the orders striking out the defence of the defendants in the two suits. I make no order as to costs.