Karam Singh Sobti & ANR Vs. Shri
Pratap Chand & ANR [1963] INSC 184 (29 August 1963)
29/08/1963 HIDAYATULLAH, M.
HIDAYATULLAH, M.
DAS, S.K.
GUPTA, K.C. DAS
CITATION: 1965 AIR 83 1964 SCR (4) 673
CITATOR INFO:
RF 1965 SC 87 (10)
ACT:
Delhi Rent Control Act, 1958--Section 57,
scope and effect of-Meaning of "shall have regard to the provisions of
this Act" in s. 57(2) first proviso--Delhi Ajmer Rent Control Act, 1952,
s. 35--Revisional Jurisdiction of High CourtFinding by lower appellate court
that landlord acquiesced in subletting--Whether High Court could interfere on
the ground of no evidence.
HEADNOTE:
By s. 13 of the Delhi and Ajmer Rent Control
Act, 1952 which came into force on June 9, 1952, courts were prohibited from
directing eviction of a tenant at the suit of a landlord excepting in the cases
mentioned in the proviso to it.
Clause (c) of the proviso permitted ejectment
where the "tenant without obtaining the consent of landlord has before the
commencement of this Act sub-let. . . . the premises" Relying on this
clause the respondent landlord filed a suit against the appellant and
respondent no. 2 for their ejectment from a shop room let to the latter
alleging that it had been sub-let to the appellant without his consent.
The appellant resisted the suit on the ground
that the respondent land lord had acquiesced in the subletting. The trial judge
decreed the suit holding that the respondent landlord had not done so. The
appellant alone appealed to the Additional Senior Sub-judge who set aside the
order of the trial judge taking the view that the respondent landlord had
acquiesced in the sub-letting. He also held that the subletting had commenced
not later than November 1950. The landlord moved the High Court in revision
under s. 35 of the Act.
While the matter was pending in the High
Court, the Delhi Rent Control Act, 1958, came into force. Section 57 of the Act
of 1958, provided; "(1) The Delhi and Ajmer Rent Control Act, 1952, in so
far as it is applicable to the Union Territory of Delhi, is hereby repealed.
(2) Notwithstanding such repeal, all suits and other proceedings under the said
Act pending, at the commencement of this Act, before any court or other
authority shall be continued and disposed of in accordance with the provisions
of the said Act, as if the said Act had continued in force and this Act had not
been passed: Provided that in any such suit or proceeding for the fixation of
standard rent or for the eviction of a tenant from any premises to which s.
54does not apply, the court or other authority shall have regard to the
provisions of this Act: Provided further that the, provisions for under the
said Act shall continue in force in respect of Suit,, and proceedings disposed
of there under." The Court held that by reason of the provisions of subs.
(2) of S. 57 of the Act of 1958 the revision case had to be disposed of in
accordance with the provisions of the Act of 1952. It also held that there was
no evidence to justify the appellate court's findings that the respondent had
acquiesced in the sub-letting by respondent no. 2 to the appellant. In that
view of the matter the High Court allowed the petition of revision. The
appellant then appealed to this Court.
Held: It was competent for the High Court
under s. 35 of the Act of 1952 to interfere with the findings of the court
below on the question of acquiescence on the ground that there was no evidence
to support that finding. If a court had arrived at a finding without any
evidence to support it, it can be legitimately said that it had not decided the
case "according to law" within the meaning of that expression in s.
35.
649 Hari Shankar v. Rao Girdhai Lall
Chowdhury, 119621 Supp. I S.C.R. 933, Pooran Chand v. Motilal, 119631 Supp. 2
S.C.R.
906 and Lala Beni Ram v. Kundan Lal, (1899)
L.R. 26 I.A. 58, referred to.
The right of' the appellant to challenge the
decree of the trial Judge by appeal could not be affected by the failure of the
respondent no. 2 to file an appeal.
Per Das, Acting C. J., and Hidaytullah, J.
(Sarkar, J. dissenting): The first proviso to s. 57(2) of the Delhi Rent
Control Act, 1958 does not demand that a suit for the eviction of it tenant
filed under the Delhl and Ajmer Rent Control Act, 1952, must be governed
entirely by the provisions of the new Act. The provisions applicable continue
to be the provisions of the old Act with this addition that where the new Act
has slightly modified or clarified the previous provisions, those modifications
and clarifications should IV applied. Where entirely new rights and new
liabilities have been created, the new provisions must not be allowed to
override the provisions of the old Act. If the expression "shall have
regard to the provisions of this Act" in the first proviso to s. 57(2)
means that the provisions of the Delhi Rent Control Act, 1958, shall apply to
ill such suits or proceedings as are referred to in s. 57(2) except in the
matter of the jurisdiction of the civil court, then in reality the substantive
provision of s. 57(2) will be denuded of its full effect for all practical
purposes. Moreover, that would be giving effect to the provisions of the Rent
Control Act of 1958 retrospectively though s. 57(2) states in clear terms that
all suits and proceedings pending at the commencement of the new Act will be dealt
with in accordance with provisions of the old Act.
The correct approach is to read the first
proviso harmoniously with the substantive provision contained in s. 57(2).
Per Sarkar, J. The expression "shall
have regard to the provisions of the new Act" in s. 57(2) of the Act of
1958 gives to all the provisions of the Act of 1958 a retrospective operation
and not to, some of those provisions.
Those words do not mean that the intention
was that some of the provisions of the new Act only were to be applied and they
cannot be given that meaning because otherwise the effect of the proviso would
be to wipe out largely the first part of the sub-section.
The words "suits and other
proceedings" in sub-s. (2) of s.57 of the Act of 1958 include appeals and
revision cases.
Hari Shankar v. Rao Giridhari Lal Choudhary
[1962] Supp. 1 S.C.R. 933, Pooran Chand v. Motilal, [1963] Supp. 2 S.C.R.
906 Lala Beni' Ram v. Kundan Lal, (1899) L.R.
26 I.A. 58, Mukesh Chand v. Jamboo Parshad, (1963) LXV P.L.R. 285, Shri Kishore
Aggarwal v. Satya Dev, (1959) LXI P.L.R. 574, Jhabar Mal Chokhani v. Jinendra
Parshad (1963) LXV' P.L.R. 469, Ryots of Garbandho v. Zamindar of Parlakimedi
(1943) L.R. 70 I.A. 129, Mysore States Electricity Board v. The Bangalore
Woollen Cotton & Silk Mills Ltd. [1963] Supp. 2 S.C.R. 127, Bulaqui Das v.
Ram 42-2 S. C. India/64.
650 Saran, (1960) LXIII P.L.R. 231, Jiva Bhai
Purshottam v. Chhagan Karson, [1962] 1 S.C.R. 568, Bimal Parshad Jain v. Niadarmal,
(1960) LXll P.L.R. 664 and Man Mohan Lal v. B. D. Gupta, (1962) LXIV P.L.R. 51,
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 392 of 1963.
Appeal by special leave from the judgment and
order dated December 13, 1962, of the Punjab High Court (Circuit Bench at
Delhi) in Civil Revision No. 427-D of 1957.
Bishan Narain, O. C. Mathur, Ravinder Narain
and J.B.Dadachanji for the appellants.
A.V. Viswanatha Sastri and K. K. Jain, for
respondent 1.
S. N. Andley, for respondent No. 2.
August 29, 1963. The judgment of S. K. Das,
Acting C.J.
and M. Hidayatullah, J. was delivered by S.K.
Das Acting C.J. Sarkar J. delivered a dessenting opinion.
S. K. DAS, Acting Chief Justice.--With much
regret, we have come to a conclusion different from that of our learned brother
Sarkar, J. as respects the true scope and effect of S. 57 of the Delhi Rent
Control Act, 1958, hereinafter referred to as the Control Act of 1958. The
Control Act of 1958 repeals the Delhi and Ajmer Rent Control Act, 1952,
hereinafter called the Control Act of 1952, in so far as that Act was
applicable to the Union territory of Delhi, but contains certain savings in
respect of "suits and proceedings" pending at the commencement of the
Control Act of 1958. To these savings we shall advert later.
The facts giving rise to the appeal have been
stated fully in the judgment of Sarkar, J. and we need not restate the facts.
The respondent, Pratap Chand, relied on cl. (c), sub-cl. (i), of the proviso to
S. 13(l) of the Control Act of 1952 in support of his claim for eviction of the
appellant from a room, being room no. 6 in Pratap Buildings situate in
Connaught Circus, New Delhi. Sub-s. (1) of S. 13 of the Control Act of 1952
states that notwithstanding anything to the contrary contained in any other law
or any contract, no decree or order for the recovery of possession of any
premises shall be passed by any Court in favour of the landlord against any
tenant (including a tenant whole tenancy is terminated); the proviso creates
certain exceptions and states that nothing in sub-s. (1) shall apply to any
suit or other proceeding for such recovery of possession if the case comes
within the exceptions mentioned in the proviso. One of the exceptions is
mentioned in cf. (c), sub-cl. (i), of the proviso. That exception relates to a
case where the tenant without obtaining the consent of the landlord has before
the commencement of the Control Act of 1952 sub-let, assigned or otherwise
parted with the possession of the whole or any part of the premises. The principal
question for decision in the appeal is whether the respondent-landlord is
entitled to rely on the exception provided by cl. (c), sub-cl. (i), of the
proviso to sub-s. (1) of s. 13 of the Control Act of 1952.
The learned trial judge by his Judgment dated
June 11, 1956 gave a decree in favour of the respondent-landlord. One of the
questions raised before the learned trial judge was whether the
respondent-landlord had acquiesced in the subletting in favour of the
appellant. The learned trial Judge decided against the appellant' on the question
of acquiescence. There was then an appeal which was heard by the learned
Additional Senior Subordinate Judge of Delhi.
The learned Subordinate Judge found.... (1)
that the subletting had commenced not later than November, 1950, and (2) that
thereafter the respondent-landlord continued to receive rent with full
knowledge of the subletting. On these findings he held that the respondent landlord
was not entitled to avail himself of the exception stated in cl.
(c), sub-cl. (i), of the proviso to sub-s.
(1) of s. 13 of the Control Act of 1952. The learned Subordinate judge gave his
judgment on June 11, 1957. It has to be noted that these judgments were given
prior to the coming into force of the Control Act of 1958. That Act came into
force on February 9, 1959. On August 26, 1957 the respondent landlord moved the
High Court of Punjab in revision under s. 35 of the Control Act of 1952. When
the revision was pending in the High Court, the Control Act of 1958 came into
force. The High Court held that there was no evidence to justify the finding of
the learned Subordinate Judge that the respondent-landlord had acquiesced in
the sub-letting of the room in favour of the appellant, and the case being one
where there is no evidence to justify a finding, it was open to the High Court
652 to interfere in revision. The question of the true scope and effect of s.
57 of the Control Act of 1958 was agitated before the High Court and the High
Court held that by reason of the provisions of sub-s. (2) of s. 57 of the Control
Act of 1958, the revision before it had to be disposed of in accordance with
the provisions of the Control Act of 1952.
Accordingly, the High Court allowed the
petition in revision and restored the decree for possession made by the trial
court. The appellant then moved this court for special leave and having
obtained such leave has preferred the present appeal from the judgment and
order of the High Court dated December 13, 1962.
We are in complete agreement with the
conclusions reached by our learned brother, Sarkar, J. in respect of the
following questions:
(1) whether the High Court was competent on
an application in revision to set aside the finding of the lower appellate
court on the question of acquiescence ;
(2) whether the High Court was right in its
view that there was no evidence in the case to support the finding of the
learned Subordinate Judge on the question of acquiescence ; and (3) whether the
appeal before the learned Subordinate fudge was maintainable in the absence of
an appeal by the Automobile Association of Upper India.
On the conclusions reached on the aforesaid
three questions, the respondent-landlord will be entitled to succeed, unless s.
57 of the Control Act of 1958 stands in his way. If the provisions of the
Control Act of 1958 apply, then sub-s. (1) of s. 14 of the Control Act of 1958
will stand in the way of the respondent-landlord, because the sub-letting in
the present case did not take place on or after June 9, 1952 and will not
therefore come within the exception provided in cl.
(b) of the proviso to sub-s. (1) of s. 14 of
the Control Act of 1958. Therefore, the narrow question before us is.......
is the present case governed by cl. (c).
sub-cl. (i), of the proviso to sub-s. (1) of s. 13 of the Control Act of 1952 or
is it governed by the provisions of the Control Act of 1958? The answer to this
question depends 653 on the true scope and effect of s. 57 of the Control Act
of 1958.
We now proceed to read s. 57 of the Control
Act of 1958.
That section is in these terms:
"57. (1) The Delhi and Ajmer Rent
Control Act, 1952, in so far as it is applicable to the Union territory of
Delhi, is hereby repealed.
(2)Notwithstanding such repeal, all suits and
other proceedings under the said Act pending, at the commencement of this Act,
before any court or other authority shall be continued and disposed of in
accordance with the provisions of the said Act, as if the said Act had
continued in force and this Act had not been passed :
Provided that in any such suit or proceeding for
the fixation of standard rent or for the eviction of a tenant from any premises
to which section 54 does not apply, the court or other authority shall have
regard to the provisions of this Act:
Provided further that the provisions for
appeal under the said Act shall continue in force in respect of suits and
proceedings disposed of there under." Two questions arise out of s. 57. It
is clear beyond dispute that had sub-s. (2) of s. 57 stood by itself, then the
present case would be governed by the provisions of the Control Act of 1952,
assuming that an application in revision is a `proceeding' within the meaning
of the subsection. There are however two provisos to sub-s. (2) of s. 57. It is
the interpretation of these two provisos which has caused much difficulty in
the present case. The first question is, what is the true scope and effect of
the first proviso, with particular reference to the expression "shall have
regard to the provisions of this Act" occurring therein? The second
question is.... does an application in revision come within the expression
"suits and proceedings" occurring in sub-s. (2) by reason of the
second proviso which makes a special provision for appeals? If, however, we
decide against the appellant on the first question and hold that the
application in revision, assuming it to be a proceeding within the meaning of
sub-s. (2), must be disposed of in accordance with the provisions of the
Control Act of 1952, then 654 the second question need not be decided by us in
the present case.
Therefore, we proceed to deal with the first
question the answer to which will be decisive of the appeal.
S. 57 of the Control Act of 1958 has been the
subject of several decisions in the Punjab High Court. We shall refer to these
decisions at a later stage. We prefer first to consider the question on general
principles of construction having regard to the words used in the section.
But before we do so, a brief reference may be
made to the general scheme of the two Control Acts. Chapter 11 of the Control
Act of 1952 dealt with standard rent and also contained provisions relating to
other charges by the landlord. The dominant object was to prevent payment of
rent in excess of standard rent and unlawful charges made by the landlord.
Chapter III dealt with control of eviction of tenants and in this chapter
occurred s. 13 to which we have already made a reference. Chapter IV dealt with
hotels and lodging houses and as we are not concerned with hotels and lodging
houses, no reference need be made to the provisions in this chapter. Chapter V
dealt with jurisdiction of Courts, Appeals, Review and Revision and Chapter VI
dealt with miscellaneous provisions. The point to be noticed with regard to the
provisions in chapter V is that the Control Act of 1952 conferred power and
Jurisdiction on ordinary civil courts with the usual right of appeal from the
first court as in other civil proceedings and a right to move the High Court in
revision from the appellate judgment, in respect of suits for recovery of
possession of all premises as defined in the Act, which definition excluded
rooms in a hotel or lodging house. With regard to hotels and lodging houses,
jurisdiction was conferred on a Controller to be appointed by the Central
Government.
The Control Act of 1958 made a radical change
in respect of many matters. So far as eviction of tenants is concerned, a
matter with which we are concerned in the present appeal, jurisdiction was
conferred on the Controller to be appointed under s. 35 to order recovery of
possession of the premises on one or more of the grounds mentioned in the
proviso to s.
14 of the Control Act of 1958. S. 16 of the
Control Act of 1958 put certain restrictions on sub655 letting and one of these
restrictions was that no premises which had been sub-let either in whole or in
part on or after June 9, 1952 without obtaining the consent in writing of the
landlord should be deemed to have been lawfully sublet ; but where at any time
before June 9, 1952 a tenant had sub-let the whole or any part of the premises
and the subtenant was at the commencement of the Act in occupation of such
premises, then notwithstanding that the consent of the landlord was not
obtained for such sub-letting, the premises would be deemed to have been
lawfully sublet. S. 17 required the sub-tenant to give notice to the landlord
and s. 18 provided that in certain circumstances the sub-tenant was to be
treated as the tenant. With the details of these provisions we are not
concerned in the present case except to point out that the Control Act of 1958
made radical changes in the matter of eviction of tenants on the ground of
sub-letting. In the matter of sub-letting the relevant date was taken as June
9, 1952 the date on which the Control Act of 1952 came into force, and a
distinction was made between sub-letting before that date and sub-letting after
that date. A subletting before June 9, 1952 was treated as lawful sub-letting
if the sub-tenant was in occupation of the premises at the commencement of the
Control Act of 1958;
but a sub-letting after June 9, 1952 without
the previous consent in writing of the landlord was treated as unlawful for the
purposes of the Control Act of 1958.
Let us now consider s. 57 of the Control Act
of 1958 against the background of the scheme of the two Control Acts, as stated
above. The first sub-section of s. 57 repeals the Control Act of 1952 in so far
as it is applicable to the Union territory of Delhi. If the repeal stood by
itself the provisions of the General Clauses Act (X of 1897) would have applied
with regard to the effect of the repeal and the repeal would not affect the
previous operation of any enactment repealed or anything duly done or suffered
there under or affect any right, privilege, obligation or liability acquired,
accrued or incurred under any enactment so repealed. The provisions of the
General Clauses Act will not, however, apply where a different intention
appears from the repealing enactment. Such an intention is clear from sub-s.
(2) of s. 57 which contains the saving clause.
656 It states in express terms that
notwithstanding the repeal of the Control Act of 1952, all suits and
proceedings under the Control Act of 1952 pending before any court or other
authority at the commencement of the Control Act of 1958, shall be continued and
disposed of in accordance with the provisions of the Control Act of 1952, as if
the Control Act of 1952 had continued in force and the Control Act of 1958 had
not been passed. Nothing can be more emphatic in the matter of a saving clause
than what is contained in sub-s. (2) of s. 57. We had said earlier that had
sub-s. (2) of s. 57 stood by itself without the provisos, then the
incontestable position would have been that the present case would be governed
by the provisions of the Control Act of 1952. The question before us is, does
the first proviso to sub-s. (2) make a change in the position and if so, to
what extent? The first proviso states inter alia that in the matter of eviction
of a tenant from any premises to which s. 54 does not apply, the court or other
authority shall have regard to the provisions of the Control Act of 1958. S. 54
need not be considered by us as it merely saves the operation of certain
enactments which do not apply to premises under our consideration. What is the
meaning of the expression "shall have regard to the provisions of this
Act" (meaning the Control Act of 1958) ? Does it mean that the proviso
takes away what is given by sub-s. (2), except in the matter of jurisdiction of
the civil court to deal with an eviction matter which was pending before the
Control Act of 1958 came into force? We are unable to agree that such is the
meaning of the first provision. We think that the first proviso must be read
harmoniously with the substantive provision contained in sub-s. (2) and the
only way of harmonising the two is to accept the view which the Punjab High
Court has accepted, namely, that the words "shall have regard to the
provisions of this Act" merely mean that "where the new Act has
slightly modified or clarified the previous provisions, these modifications and
clarifications should be applied". We see no other way of harmonising
sub-s. (2) with the first proviso thereto.
A similar expression occurring in s. 49 of
the Electricity (Supply) Act (LIV of 1948) was considered by this 657 court in
the Mysore State Electricity Board v. The Bangalore Woolen, Cotton and Silk
Mills Ltd. and others etc.(1). This Court referred to the decision of the Privy
Council in Ryots of Garbandro v. Zemindar of Parlakimedi(2) and expressed
agreement with the view of the Privy Council that the expression "have
regard to" or "having regard to" has no more definite or
technical meaning that of ordinary usage, and only requires that the provisions
to which regard must be had should be taken into ,consideration. If the
expression "have regard to" in the first proviso to sub-s. (2) means
that the provisions of the Control Act of 1958 shall apply to all such suits or
proceedings as are referred to in sub-s. (2) except in the matter of
Jurisdiction of the civil court, then in reality the substantive provision of
sub-s. (2) will be denuded of its full effect for all practical purposes. We do
not think that it would be right to read the first proviso of sub-s. (2) in
that way. It was argued before us that the first proviso related only to two
matters, (a) fixation of standard rent and (b) eviction of a tenant, and the
intention was that in these two matters only the provisions of the Control Act
of 1958 would apply and not in others. If that was the intention, nothing would
have been easier than to say in sub-s. (2). ."Notwithstanding such repeal,
all suits and other proceedings under the said Act except those for fixation of
standard rent and eviction of a tenant etc." Subs-s. (2) does not, however
say so, and if the first proviso is to be interpreted in the manner suggested
by the appellant, the provisions as to jurisdiction in the new Act would affect
the power of the civil court to pass a decree for eviction.
We now turn to the decisions of the Punjab
High Court. In Shri Krishna Aggarwal v. Satya Dev(3) it was held that the first
proviso to sub-s. (2) of s. 57 was directory in character and not mandatory;
therefore, the courts and authorities concerned had a discretion conferred on
them to take into consideration the provisions of the new Act when it was
considered necessary in a proper case and in the interest of justice. We do not
wish, however, to base our decision on these grounds. We think that the proper
way of reading sub-s. (2) and the first proviso thereto is (1) [1963] Supp. 2
S.C.R. 127. (3) (1959) LXI P.I.R. 574.
(2) [1943] L.R. 70 I.A. 129.
658 to harmonise both in the best way
possible. In Bulaqi Das Madan Moha & others v. Ram Sarup(1) the view
expressed was that the proviso must have some meaning and force and the proviso
intended that where the old provisions had been repeated with modifications,
the old Act should be interpreted in the light of the modifications so long as
they did not involve creating any new rights and liabilities. A similar view
was expressed by the same judge in Shri Bimal Parshad Jain v. Shri
Niadarmal(2). The question was considered by a Division Bench in Shri Jhabar
Mal Chokhani v. Shri Jinendra Pershad(3). At pages 474 and 475 of the report
Dulat, J. who spoke for the Bench said:
"It would thus appear that apart from
Gosain, the other learned judges of this court have generally agreed that the
proviso to s. 57, sub-section (2), does not demand that a suit for the eviction
of a tenant filed under the previous Act of 1952 must be governed entirely by
the provisions of the new Act but that, on the other hand, the provisions
applicable continue to be the provisions of the old Act with this addition
that, where the new Act has slightly modified or clarified the previous provisions,
those modifications and clarifications should be applied, but, where entirely
new rights and new liabilities have been created, the new provisions must not
be allowed to override the provisions of the previous Act, and nearly all the
cases have been decided on that basis." We agree with the view expressed
by Dulat, J. We also agree with the High Court that if the first proviso to
subs. (2) of s. 57 is interpreted in the way contended for by the appellant
here, it would really be giving effect to the provisions of the Control Act of
1958 retrospectively, though sub-s. (2) of s. 57 states in clear terms that all
suits and proceedings pending at the commencement of the new Act will be dealt
in accordance with the provisions of the old Act. This is really putting the
same argument that the proviso must be read harmoniously with the substantive
provision, in another way.
(1)(1960) LXII P.I.R. 231.
(2) (1960) LXII P.I.R. 664.
(3) (1963) LXV P.L.R. 469.
659 For the reasons given above we have come
to the conclusion that in the present case the respondent-landlord is entitled
to the benefit of cl. (c), sub-cl. (i), of the proviso to s.
13(1) of the Control Act of 1952 and the
first proviso to sub-s. (2) of s. 57 of the Control Act of 1958 does not stand
in his way. He is, therefore, entitled to succeed, as the appellant has failed
to make out any acquiescence by the landlord to the sub-letting in question.
Therefore, the High Court rightly allowed the petition in revision and restored
the decree for possession made by the trial court.
The appeal fails and is dismissed with costs.
SARKAR J.-The respondent Pratap Chand,
hereafter referred to as the respondent, who was the owner of Pratap Buildings
in Connaught Circus, New Delhi had let a room in it, being room No. 6, to the
respondent, the Automobile Association of Upper India, formerly known as the
Automobile Association of Northern India and hereafter referred to as the
Association.
The appellant was a sub-tenant of the room
under the Association. These facts are not in dispute. On October 5, 1959, the
respondent gave the Association a notice to quit and on December 25, 1954
brought a suit against the Association and the appellant for their enviction
from the room. It is out of this suit that the present appeal arises and the
question is--Is the appellant liable to be evicted? Section 13 of the Delhi and
Ajmer Rent Act, 1952 which had come into force on June 9, 1952 and governed the
case, prohibited Courts from directing eviction of a tenant at the suit of a landlord
excepting in the cases mentioned in the proviso to it. Clause (c) of this
proviso said that a decree for recovery of possession might be made where the
Court was satisfied that the "tenant without obtaining the consent of the
landlord has before the commencement of this Act,-sublet, assigned or otherwise
parted with the possession of, the whole or any part of the premises". The
respondent relied on this provision in the Act and contended that the
Association had without his consent sub-let the shop-room to the appellant and
that he had come to know of this sub-letting about the end of May 1954. The
Association does not appear to have seriously contested the suit but the
appellant did. Both the Association and the appellant admitted that the
landlord had not 660 consented to the subletting before it started but the appellant
contended that the respondent had full knowledge of his occupation of the
shop-room as a sub-tenant and had with such knowledge accepted rent from the
Association and thereby acquiesced in the subletting and was, therefore, not
entitled to eviction on the ground of subletting without the landlord's
consent.
The learned trial judge by his judgment dated
June 11, 1956 held that the respondent landlord had not acquiesced in the subletting
and in that view of the matter directed ejectment of the Association and the
appellant. The appellant then went up in appeal under s. 34 of the Act to the
Additional Senior Sub-judge of Delhi who held that the sub-letting had
commenced not later than November 1950 and that the respondent continued to
receive rent with full knowledge of the sub-letting. He, therefore, decided
that the respondent was not entitled to the decree for possession and allowed
the appeal, set aside the judgment of the trial Court and dismissed the suit by
his judgment dated June 11, 1957. On August 26, 1957, the respondent moved the
High Court of Punjab in revision under s. 35 of the Act.
While the revision petition was pending in
the High Court the Delhi Rent Control Act 1958 came into force. It repealed the
Act of 1952 but made some of the provisions of the repealed Act applicable to
certain pending matters. One of the questions in this appeal will be, which of
the provisions of the new Act are to apply to the pending cases.
In the revision petition, apart from
challenging the finding of acquiescence by the learned Senior Sub-Judge, the
respondent contended that the appellate judgment was in any event wrong because
the tenant, the Association, not having appealed from the decree in ejectment
made against it by the learned trial judge, that decree stood and as a result
of it the tenancy was at an end and, therefore, the appellant subtenant who
only derived title through the tenant, had no right to remain in possession of
the demised room. The appellant on his part in opposing the petition supported
the judgment of the Additional Senior Sub Judge on the merits, disputed that
his rights were concluded by the failure of the Association to appeal from the
661 judgment of the trial judge and further contended that in view of the
provisions of s. 57(2) of the Act of 1958 to which I will later refer, the
right of the landlord to possession had to be decided by the provisions of that
Act and under s. 16 of this Act the respondent was not on the facts found
entitled to an order for ejectment on the ground of sub-letting without his
consent.
The various points raised in the case were
not all heard together in the High Court but the result of the several hearings
was a,, follows: that the fact that the tenant had not appealed did not take
away the sub-tenant's right to relief, that there was no evidence to justify
the appellate Court's finding that the respondent had acquiesced in the
sub-letting by the Association to the appellant, that the High Court could in
revision set aside the judgment of the lower appellate Court on this (,round
and lastly, that s. 57(2) of the Act of 1958 (lid not require the High Court in
exercising its revisional powers to decide the landlord's right to possession
by reference to the provisions of the Act of 1958. In that view of the matter
the High Court allowed the petition for revision and restored the decree for
possession passed by the trial Court. This judgment of the High Court is
challenged in this appeal.
The first question is whether the High Court
was competent in the exercise of its revisional Jurisdiction to set aside the
finding of the lower appellate Court that the landlord had acquiesced in the
sub-letting. Section 35 of the Act of 1952 under which the revision petition
had been filed gave jurisdiction to the High Court to satisfy itself that the
decision of the Court below had been "according to law". It has been
held by this Court in Harz Shan kar v. Rao Girdhari Lal Choudhury(1) that a
revision petition under s. 35 of the Act of 1952 did not lie to interfere with
a plain finding of fact. Relying on this case learned counsel for the appellant
contended that the High Court had no jurisdiction to interfere with the finding
of acquiescence by the lower appellate Court. In that case however there was
evidence which could have supported the finding arrived at by the Court below
the High Court and the High Court had only reassessed the value of that
evidence. This, it was held, the High Court could not do. Such a case is (1)
[1962] Supp. 1 S.C.R. 933.
662 very different from a case where, as in
the present, the High Court interferes with the finding on the ground that
there is no evidence to support it. If a Court had arrived at a finding without
any evidence to support it can be legitimately said that it had not decided the
case "according to law" : see Pooran Chand v. Motilal(1). I may also
refer to Lala Beni Ram v. Kundan cited on behalf of the respondent where it was
observed that, acquiescence is not a question of fact but of legal inference
from the facts found.
The question then arises whether the High
Court was right in its view that there was no evidence in the case to support
the finding of acquiescence. The evidence only showed that the respondent knew
that the appellant was in occupation of the demised premises. I think that the
High Court pointed out, rightly that the fact that a landlord had knowledge
that a person other than a tenant was in possession did not by itself always
lead to an inference that the landlord had knowledge that the person in
possession was a sub-tenant.
The facts of the present case made such an
inference more difficult. They were as follows: The appellant had been in
possession of the room from sometime in 1949 till November 1950 along with the
Association. All this time he was publishing a magazine called the All India
Motorist which was the official organ of the Association. This he was doing
under an agreement with the Association which provided that "office accommodation
for the staff of the A.I. Motorist to be provided by the Association in 6,
Pratap Buildings". He was at one time the General Secretary of the
Association and constantly on the premises doing also his own business there,,
In November 1950 the Association took another premises as the demised room was
found too small for its expanding activities. From November 1950, the appellant
remained in sole possession of the premises carrying on his businesses there as
previously, including the business of publishing the aforesaid official organ
of. the Association.
In may 1954, the agreement between the
Association and the appellant for the printing and publication of the magazine
was brought to an end and the Association started its own magazine. Since (1)
[1963] Supp. 2 S.C.R. 906.
(2) [1899] L.R. 26 I.A. 58.
663 then the appellant alone has been using
the room for his own purposes.
I do not think that these facts establish
that the respondent had any reason to think that from November 1950, when the
sub-tenancy commenced, the appellant had been in possession as a sub-tenant for
he had been using the room for the work of tile Association. Only since May
1954, the appellant occupied the room solely for his own purposes.
The respondent might well, therefore, have
thought that the occupation of the appellant prior to 1954 was really for the
Association. Since 1954 however the respondent had not accepted any rent. I am
unable in this state of the evidence to hold that the view that the High Court
took was erroneous. I do not think that the case of Mukesh Chand v. lamboo
Parshad(1) to which learned counsel for the appellant referred assists him on
this point. There it was held that knowledge of possession was on the facts of
the case evidence of knowledge of possession under a licence. It is not
necessary to pronounce on the correctness of that decision for we are concerned
with a different question, namely whether knowledge of possession is evidence
of knowledge of possession under a contract of sub-tenancy. A point was raised
at the bar that even if acquiescence had been proved that would not have
affected the landlord's statutory right to recover possession on proof of a subletting
without his consent. I do not think it necessary to deal with that question in
the present case as no acquiescence was proved.
The next question is as to the rights of the
appellant in the absence of an appeal by the Association from the decision of
the trial Court. This question does not present any real difficulty. The suit
bad been filed both against the tenant and the sub-tenant, being respectively
the Association and the appellant. One decree had been passed by the trial
judge against both. The appellant had his own right to appeal from that decree.
That right could not be affected by the Association's decision not to file an
appeal. There was one decree and, therefore, the appellant was entitled to have
it set aside even though thereby the Association would also be freed from the
decree. He could say that decree was wrong and should be set (1) (1963) LXV
P.L.R. 285.
664 aside as it was passed on the erroneous
finding that the respondent had not acquiesced in the sub-letting by the
Association to him. He could challenge that decree on any ground available. The
lower appellate Court was, therefore, quite competent in the appeal by the
appellant from the joint decree in ejectment against him and the Association,
to give him whatever relief he was found entitled to, even though the
Association had filed no appeal.
I come now to the last and the more difficult
of the points argued in this case. That point turns on the interpretation of s.
57 of the Act of 1958 the terms of which are as follows:
S. 57. (1) The Delhi and Ajmer Rent Control
Act, 1952, in so far as it is applicable to the Union territory of Delhi, is
hereby repealed.
(2) Notwithstanding such repeal, all suits
and other proceedings under the said Act pending, at the commencement of this
Act, before any court or other authority shall be continued and disposed of in
accordance with the provisions of the said Act, as if the said Act had
continued in force and this Act had not been passed:
Provided that in any such suit or proceeding
for the fixation of standard rent or for the eviction of a tenant from any
premises to which section 54 does not apply, the court or other authority shall
have regard to the provisions of this Act:
Provided further that the provisions for
appeal under the said Act shall continue in force in respect of suits and
proceedings disposed of there under.
It is said by the appellant that the first
proviso to subs.
(2) of s. 57 of the Act of 1958 required the
High Court to decide the claim for ejectment in the revision case pending
before it in accordance with the provisions of that Act and as under s. 16 of
the Act no decree in ejectment could be passed against the Association or the
appellant on the facts of the present case, the High Court was wrong in passing
such a decree.
The respondent's answer to this contention is
twofold. It is first said that the proviso only required a Court to have regard
to the provisions of this Act and that meant that only those provisions of the
new Act were to be 665 applied which were clarifications and modifications of
the old but none other. If this is so, no doubt the new Act could be of no
assistance to the appellant. This contention is based on judgment of the Punjab
High Court but I am unable to accept it as correct.
The earliest case before the High Court was
Shri Krishna Aggurwal v. Satya Dev(1). There it was held that the first proviso
only gave a discretion to the Court to apply the provisions of the new Act when
the interests of justice required it. This view has not however been accepted
in the later cases and has been expressly given up in the last case which was
Jhabar Mal Chokhani v. Jinendra Parshad(2). As it has not been pressed before
us, it is not necessary to discuss it further. Plainly, an interpretation which
makes the substantive rights of parties depend on the discretion of court is
impossible of acceptance.
The reasons which have been given to support
the contention that the first proviso only made the provisions of the new Act
which were modifications and clarifications of the provisions of the old Act
are various but none of them appears to me to be well founded. First, it is
said that the words "have regard to" support that view and reliance
is placed on Ryats of Garbandho v. Zemindar of Parliakimedi(3) for this purpose
: see Jhabar Mal's case(2). In that case the Judicial Committee held that the
words meant that the provisions referred to must be taken into consideration
but it was not obligatory to follow them.
Apart from the fact that the view expressed
by the Judicial Committee turned on the statute before it as it was careful to
observe by saying "any general interpretation of such a phrase is
dangerous and unnecessary", I am unable to see how the decision supports
the view for which it was cited in Jhabar Mal's case(2). In that case the words
were given the meaning that compliance with the provisions indicated was not
obligatory, a meaning which is not sought to be put on them in the present case
by any one, for the view that the first proviso gives a discretion to the Court
has been discarded. Surely the Parlakimedi case(3) is no authority for the view
that the words "shall have regard to the provisions of this Act" mean
that it (1) [1959] LXI. P.L.R. 574. (2) [1963] LXV P.L.R. (3)[1943] L.R. 70
I.A. 129.
43-2 SC India/64 666 shall be obligatory to
apply only such of the provisions of the new Act which are modifications or
clarifications of the earlier Act, and this is the meaning which is canvassed
by the respondent. The Judicial Committee were indeed not concerned with the
provisions of two statutes one of which had been repealed, as we are. The two
cases are wholly different. The decision of this Court in Mysore State
Electricity Board v. The Bangalore Woollen Cotton and Silk Mills Ltd.(1) in
which the same words fell to be considered, is of even less assistance.
Another reason given is that the rule is that
no more retrospective operation is to be given to a statute than its language
renders necessary : see Shri Krishna's case (2) . A somewhat similar view was
expressed in Bulaqui Das v. Ram Sarup(3) where it was said that the proviso
should be read making only those provisions of the new Act applicable which are
modifications of the old as that would cause least disturbance of the vested
rights. Again I am unable to agree. The words "shall have regard to the
provisions of this Act" do give these provisions a retrospective operation
and there is nothing in them to limit the scope of such operation to some of
those provisions. The rule that a statute is not presumed to have retrospective
operation is no justification for astuteness in limiting the scope of that
operation where the words do not indicate any limit. I am wholly unable to
agree that the words "shall have regard to the provisions of this
Act" at all provide any limit.
They would not indicate any limit if no
question of retrospective operation arose (see Parlakimedi case) (4) and the
natural meaning of the words is not changed when they are used in a clause for
giving retrospective operation to a statute. I may add that this reasoning is
based only on those words.
The last reasoning on which the respondent
founded his contention was that the proviso had to be construed harmoniously
with the first part of sub-s. (2) and not so as to destroy it altogether: see
Shri Krishna's case(2) and Jhabar Mal's case(5). There is no doubt about this
principle (1) [1963]Supp. 2 S.C.R. 127. (2) [1959] LXI P.L.R. 574.
(3) [1960] LXII P.L.R. 231.
(4) [1943] L.R. 70 I.A. 129.
(5) [1963] LXV P.L.R. 469.
667 but it is applicable when there is a
conflict between two parts of a statute, a conflict which could not have been
intended. But where, as in the present case-and as to this I feel no doubt at
all-the proviso is an exception to the part to which it is attached there is no
conflict for it was intended to reduce the field of operation of that part by
the proviso. There is no occasion in such a case to feel perturbed if the plain
language of the proviso has the effect of cutting down the scope of operation
of a large part of the provision to which it is attached, for such was the
intention of the legislature. There is of course no sounder principle of
interpretation of statutes than to give plain language its plain meaning.
Suppose the words in the proviso were
"shall apply the provisions of this Act". Then those provisions would
have to be applied even though the result was the wiping out of the larger
portion of the first part of the sub-section, The words however are "shall
have regard to the provisions of this Act". Whatever they mean, they do
not mean that the intention was that some of the provisions of the new Act only
were to be applied and they cannot be given that meaning because otherwise the
effect of the proviso would be to largely wipe out the first part of the
subsection. There is no Justification for twisting the language of the proviso
in a zealous quest for harmony. The expressed intention must be given effect to
and no question of creating any harmony arises. Since those words do not confer
a discretionary power, they must be read as imposing obligatory duties.
I do not also think that if the provisions of
the new Act are applied to pending proceedings, there would be a tremendous
disharmony, a disharmony which could not have been intended. Under the first
part of the sub-section all pending suits and proceedings are to be disposed of
under the old Act. Under the proviso in some of them the court or authority
before whom they are pending are to have regard to the provisions of the new
Act. Now, the courts and authorities under the two Acts are different. The
first part of the sub-section requires the courts and authorities under the old
Act to dispose of the matters pending before them and the proviso does not
touch this portion of that part, for it requires the courts and authorities
under the old Act to dispose of some of the pending matters by applying some of
the provisions of the new Act.
Again the proviso leaves the scope of the
first part of the sub-section wholly unaffected as regards pending suits and
proceedings other than those for eviction of a tenant or fixation of standard
rent. These would include proceedings by tenants for being put back into
possession and those between hotels and lodging house keepers and their borders.
It may be that these would be fewer than the
proceedings for ejectment of tenants or standardisation of rents, but that
would be irrelevant. What I wish now to observe is that if the proviso is
interpreted as making it obligatory to apply all the provisions of the new Act
to pending proceedings.
other than those I have indicated above, the
result would not be to wipe. out the first part of the sub-section altogether,
a good part would still remain operative. I do not conceive it to be the duty
of a court interpreting a statute to give words a meaning which they do not
plainly bear because otherwise some or even a large portion of another part of
the statute would become inoperative. This would be more so where one part was
intended admittedly to cut down the effect of another. One must not further
forget that in interpreting a beneficent Statute the effort should always be in
cases of doubt to put that interpretation which confers the larger benefit on
those intended to be benefited : Jiva Bhai Purshottam v. Chhagan Karson(1). I
do not however wish it to be understood that I feel a doubt that the words
"shall have regard to the provisions of this Act" may mean those
provisions only of the new Act which are modifications or clarifications of the
provisions in the old Act.
I have now discussed all the reasons advanced
in support of the respondent's contention and am unable to accept it for the
reasons earlier mentioned. I think the proviso plainly makes it obligatory to
apply the provisions of the new Act in the decision of the pending suits and
proceedings for ejectment of tenants by the courts before whom they were
pending under the old Act.
The respondent then said that the first
proviso to s. 57(2) of the Act of 1958 did not in any event make any part of
the Act of 1958 applicable to pending revision cases (1)[1962] 1 S.C.R. 568,
573.
669 for that proviso only referred to suits
or proceedings and a revision case was neither. This view receives support from
Shri Krishna's case(1) and Man Mohan Lal v. B. D. Gupta(2) but a contrary view
was taken in Bimal Parshad lain v. Niadarmal(3). In fact the two earlier
mentioned judgments in the High Court held that the words "suit or
proceeding" in the first proviso did not include either an appeal or a
revision case.
This view is based on the terms of the second
proviso to sub-s. (2) of s. 57 which I have earlier set out. It was said that
by dealing specifically with appeals in that proviso the legislature has
indicated clearly that it did not intend an appeal to be considered as a suit
or proceeding in that sub-section. It was also said that if a suit or
proceeding included an appeal then the second proviso would become wholly
redundant for what is provided there would then come within the rest of sub-s.
(2).
This reasoning seems to me to be based on a
misreading of the second proviso which states that "the provisions for
appeal under the said Act shall continue in force in respect of suits and
proceedings disposed of there under". Now what are "provisions for
appeal"? They of course mean the provisions which set out how or when and
in what court an appeal may be filed and so on, that is, provisions dealing
with the institution of appeals, their competence, their procedure and the
courts where they may be filed and so on.
The words do not refer to any provision of
the old Act dealing with the merits of an appeal. The old Act does not contain,
as indeed no Act does, any specific provision for the decision of the merits of
an appeal as distinguished from the decision of the same case at the trial
stage. The provisions for deciding the merits are always the same in both
cases. The words "provisions for appeal therefore cannot possibly refer to
provisions dealing with the merits of a case. The word "appeal" had
to be used in the second proviso as it was concerned with appeals from suits or
proceedings mentioned in it, namely, those which had been disposed of under the
old Act. That word was not used to indicate that suits or proceedings mentioned
in the rest of the sub-section were not to include (1) [1959] LXI P.L.R. 574.
(2) [1962] LXIV P.L.R. 51.
(3) [1960] LMI P.L.R. 664.
670 an appeal. Furthermore the second proviso
would not be redundant if the words "suit or proceeding" in the rest
of the sub-section were understood as including an appeal, for it states under
which law the competence of appeals and revision petitions from cases disposed
of under the old Act are to be decided while the rest of the subsection does
not deal with such matters but deals with the courts where pending matters are
to be heard and the law by which they are to be decided and disposed of. I may
also point out that under the two Acts Jurisdiction is conferred on different
authorities. There is, therefore, nothing In the second proviso which would
indicate that the words "suit or proceeding" in the first part of
sub-s. (2) or in the first proviso were not intended to include an appeal or a
revision case.
Another reason given was that a revision
could not be a suit because it was not a rehearing. Even if this is so, it
would not be an answer to the contention that the word "proceeding"
would include an appeal or a revision case.
Furthermore, it is conceded that an appeal is
a rehearing and would be included within the word suit if the second proviso
was not there. I have already shown why the second proviso does not prevent an
appeal from being included in the words "suit or proceeding" in the
rest of the subsection. Now if an appeal is to be held a suit and as no
distinction can be made between an appeal and a revision case, it would follow
that the word "suit" might on this reasoning include a revision case.
It is indeed admitted that the word "appeal" in the second proviso
includes a revision case. Obviously any other view would be untenable for no
intelligible reason can be found why a revision case should be treated differently
from an appeal. For myself however I would say that as a matter of plain
English there is no difficulty in including within the word
"proceeding" an appeal or a revision case. I see no reason why the
legislature should have thought of applying one law for cases which were
pending at the original stage when the new Act came into force and another law
for the appeals or revision cases from original trial which were pending then.
A third reason given why suits or proceeding
in the first part of sub s. (2) and the first proviso should not 671 include an
appeal or a revision case is that might necessitate a remand for further
evidence. This is admittedly an argument of convenience and hence not of great
strength. But I am unable to see why a remand would be necessary. Ex-hypothesi
the case had been started under the old Act and all evidence that should have
been led had already been led. A remand for taking fresh evidence could only be
necessary if an amendment of the pleadings was allowed in view of the fresh
rights created by the new Act.
So far as a new right is given to the
landlord he can always file a fresh suit. The taking of the new evidence which
it is said would be an inconvenience cannot therefore in any event be avoided.
If the words "suit or proceeding"
in the first part of subs. (2) or the first proviso do not include an appeal or
a revision case the result would be somewhat anomalous. It is clear that s. 6
of the General Clauses Act keeping alive certain rights under repealed Act
cannot be availed of to keep alive rights under the 1952 Act for sub-s. (2) of
s. 57 of the 1958 Act specifically states which of the provisions of the 1952
Act are to remain available in spite of the repeal of that Act. On the
respondent's contention nothing in the first part of sub-s. (2) or the first
proviso to it would make the old Act applicable to pending appeals or one that
came to be filed after the coming into force of the new Act. One is then left
wondering by which law the appeals and revision cases which are pending when
the new Act comes into force or are subsequently filed under the second proviso
are to be governed. It clearly could not have been intended that the pending
appeals or revision cases were not to be proceeded with any more. Therefore, it
seems to me that it would be an unnatural construction of the words "suit
or proceeding" in the first part of sub-s. (2) or the first proviso to it
to say that they do not include appeals or revision cases. In my view the High
Court was under s. 57(2) of the 1958 Act bound to apply the provision of that
Act in deciding the merits of the revision case pending before it when the new
Act came into force.
The next question is, How were the merits of
the pending revision case affected by the new Act? The appellant contends that
s. 16 of this Act prevents a decree in ejectment being passed against him by
the High Court in 672 the revision case. This is fallacious. Section 16(1) no
doubt says that certain sub-lettings would be deemed to be lawful sub-lettings.
It is also true that the sub-letting to the appellant was of the kind mentioned
in s. 16(1). The effect however of making sub-lettings lawful under s. 16(l) is
to prevent an cjectment being ordered against the subtenant when the tenancy of
the intermediate tenant comes to an end but this only in cases where the
sub-tenant has given. the prescribed notice: see ss. 17 and 18. The appellant
cannot get the benefit of these provisions for he had not given that notice.
Section 16(l) does not otherwise prevent the ejectment of a tenant or
sub-tenant.
None the less however as the provisions of
the new Act apply to the pending revision case, the respondent has to show that
he is entitled to an order for ejectment under those provisions. Now the only
ground on which the respondent claims ejectment is for sub-letting without his
consent.
The circumstances under which ejectment can
be decreed under the new Act are set out in the proviso to s. 14. Under that
proviso a subletting on or after June 9, 1952 without the consent of the
landlord in writing may justify a decree for possession but not any other kind
of sub-letting. In the present case on the facts found, the sub-letting to the
appellant was not of this kind for it took place in November 1950. A sub-letting
which took place on that date even if it was without the landlord's consent
would not justify an order for possession against the tenant at the instance of
the landlord. No other provision in the new Act has been pointed out under
which for such subletting the landlord was entitled to an order for possession.
It follows that the High Court was not entitled to pass a decree for possession
but should have dismissed the revision case. Whether the landlord respondent is
entitled to an order for possession for any other reason under the new Act is
not a question that arises in this appeal and I express no opinion on it.
I would, therefore, allow the appeal.
ORDER BY COURT In view of the majority
judgment, the appeal stands dismissed with costs.
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