Dularey Lodh Vs. The IIIrd
Addl. District Judge, Kanpur & Ors [1984] INSC 101 (3 May 1984)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
CITATION: 1984 AIR 1260 1984 SCR (3) 743 1984
SCC (3) 99 1984 SCALE (1)793
ACT:
U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction Act 1972, Section 9 & U.P. Urban Buildings (Regulation of
Letting Rent and Eviction) (Amendment Act 1976-Decree of eviction passed
against tenant under 1972 Act-Executing court holding decree inexecutable-1976
Amendment Act making section 9 of 1972 Act applicable with retrospective
effect-Decree of eviction whether revived and becoming operative and
executable-Doctrine of eclipse- Applicability of.
Interpretation of Statutes-Doctrine of
eclipse- Applicability of-When arises.
HEADNOTE:
The respondent landlord filed a suit for
ejectment in the year 1971 and obtained a decree for ejectment against the
appellant-tenant. By virtue of the provisions of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972, the case was transferred
to the court of the Judge, Small Causes, who tried the case and passed a decree
in favour of the respondent. No appeal or revision was filed against the said
judgment. Thereafter, the decree- holders filed an execution petition. The
appellant, raised a jurisdictional objection on the basis of the judgment of
the Allahabad High Court, (K.K. Saksena v. S.N. Misra 1975 ALR 360) to the
effect that the transfer of the suit before conferment of the jurisdiction to
the Judge, Small Causes Court was not competent and therefore, the decree was
not executable. The respondent's counsel contended that the suit would have to
be tried all over again and the Court held that the decree was without
jurisdiction. The decree remained in-executable, but by virtue of the U.P.
Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act,
1976 s. 9 of the 1972 Act was made applicable with retrospective effect to
remove The injustice and remedy the mischief which had been caused to the
decree- holders. As a result of the amendment, the aforesaid judgment of the
Allahabad High Court stood over ruled and effaced.
In view of the aforesaid amendment, the
respondents filed an application before the Executing Court for revival of the
suit and the decree, which was accepted by the Court, and a Civil Revision
filed against the said order was dismissed by the High Court.
744 In the appeal to this Court, it was
contended on behalf of the appellant, that in view of the Allahabad High Court decision
and the 1972 Act, the decree stood set aside and could not be received or made
executable even by the 1976 Amendment Act.
Dismissing the appeal,
HELD: 1. The courts below have rightly
decided that after the 1976 Amendment Act the decree became legally executable.
[747A]
2. By virtue of the 1972 Act the decree could
not have been set aside or invalidated and the only consequence which would
ensue is that the decree would be lying dormant and could not be executed. Once
the bar placed by the 1972 Act is removed, by virtue of the doctrine of eclipse
the decree will revive and become at once operative and executable.
[750H; 751A] 3 Even if the 1972 Act were to
apply, the utmost consequence would be that the decree would remain
inexecutable but could not be struck off from the records of the case. This is
clear case where the doctrine of eclipse would apply, and in view of the 1976
Amendment Act, the decree will revive and become executable. This principle has
been applied by this Court in several cases and flows from the well-known
doctrine of eclipse which has been enunciated not only in India but in other
countries also. [747G-H] Bhikaji Narain Dhakras & Ors. v. Stats of Madhya
Pradesh & Anr; [1955] 2 SCR 589, Deep Chand v. State of U.P of Uttar Pradesh
& Ors; [1963] 1 Supp. SCR 912, S. Anbalagan v. B. Devarajan; [1984] 2 SCC
91, Kailash Sonkar v. Smt.
Maya Devi; [1984] 2 SCC 91, referred to. &
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1574 of 1980.
Appeal by Special leave from the Judgment and
Order dated the 27.7.1979 of the Allahahad High Court in C.M.W. No. Nil of
1979.
Anil Dev Singh, S.L. Aneja and K.L. Taneja
for the Appellant.
M.C. Manchanda, Mrs. Shobha Dikshit and
Pramod Swarup for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J This appeal by special leave against a judgment of the Allahabad
High Court unfolds a tell-tale plight of an unfortunate litigant who, after
obtaining a decree for ejectment, was driven from pillar to post to get the
said decree executed. His attempts to get the said decree executed were stalled
sometimes by objections filed by the tenant-appellant and sometimes by
amendments made 745 in the law with the result that even after 13 years of
litigation the landlord respondent was not able to get possession of the
premises. This was because of a statutory amendment which made the decree
obtained by him inexecutable and was, therefore, Lying dormant and ineffective.
The legislature having realised the hardship
of such landlords came to their rescue by an amendment in 1976 to the U.P.
Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (for short,
to be referred to as the '1972 Act') which was expressly given retrospective
operation so as to revive the decrees which had become in-executable.
When the appeal was heard and the arguments
were concluded the respondents had made a good gesture in agreeing to allow the
tenant two years' time to vacate the premises on giving the usual undertaking
and accordingly we adjourned the case to enable the parties to come to a
settlement. However, we were informed by counsel for the parties that no
settlement could be reached; hence we have now to decide the case on merits.
And now to the facts of the case. The
respondent- landlord filed a suit for ejectment in the year 1971 and obtained a
decree for ejectment against the appellant- tenant. By virtue of the provisions
of 1972 Act, the case was transferred to the court of the Judge, Small Causes
who tried the case and passed a decree in favour of the respondent on 4.4.1973.
It may be noted that the tenant did not object to the jurisdiction nor did he
prefer and appeal or revision against the said judgment dated 4.4.73 and the
same became final.
Thereafter, the decree-holders filed an
execution petition being Execution Case No. 4 of 1973. The appellant, however,
raised a jurisdictional objection on the basis of a judgment of the Allahabad
High Court reported in 1975 A.L.R. 360 that the transfer of a suit before
conferment. Of jurisdiction to the Judge, Small Causes Court was not competent
and, therefore, the decree was not executable.
Counsel for the respondents under some
misconception conceded that the suit would have to be tried all over again and
the Execution Case was, therefore, disposed of by an order dated 31.1.1976
passed by the Executing Court. The Court held that the decree was without
jurisdiction. The respondents, however, did not take the stand that a
concession on a point of law was not binding on him nor was his Advocate
authorised to make such a concession. However, the decree 746 remained in-executable
but by virtue of the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Amendment) Act, 1976 (hereinafter referred to as the '1976 Amendment
Act'), section 9 of the 1972 Act was made applicable with retrospective effect
to remove the injustice and remedy the mischief which had been caused to the
decree- holders. The relevant portion of the said amendment may be extracted
thus:
"26. Transitory Provision XX XX XX (6)
The provision of section 9 of the Uttar Pradesh Civil Laws Amendment Act, 1972
shall apply and shall be deemed always to have applied in relation to suits of
the nature referred to therein which before the commencement of that Act had
been transferred to a competent court and were pending immediately before the
date of commencement of that Act in such transferee court as they apply in
relation to suits which were pending in the court in which they were
instituted:
Provided that any such suit decided by the
transferee court between the commencement of the said Act and the commencement
of this Act on the assumption that the said Section 9 did not apply to such
suits shall be deemed to have been validly decided as if the said section did
not apply to such suits." As a result of the amendment extracted above,
the judgment of the Allahabad High Court reported in 1975 A.L.R. 360 stood
overruled and effaced.
In view of this amendment, the respondents
filed an application before the Executing Court for revival of the suit and the
decree which was accepted by the court and a civil revision filed against the
said order was dismissed by the High Court; hence this appeal by special leave
in this Court.
In order to understand the implication of the
1976 Amendment Act, it may be necessary to peruse s. 26(5) of the said
Amendment, which is extracted thus:
747 "(5) Notwithstanding any judgment,
decree or order of any court or authority, the provisions of Rule 16 of the
Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules,
1972 shall be deemed to have been made under the provisions of the principal
Act as amended by this Act as if this Act were in force on all material
dates." A close analysis of the above reveals that the intention of the
legislature was to remove the injustice done to the landlords whose decrees
became in-executable. The logical consequence which flows from an
interpretation of clauses (5) and (6) of s. 26 of the 1976 Amendment Act would
be that all decrees which hitherto had been Lying dormant would revive and the
landlord could get the decree executed.
The Executing Court as also the High Court
upheld the contention of the respondents and directed execution of the decree.
The sheet-anchor of the arguments of the
counsel for the appellant was that in view of the Allahabad High Court decision
(supra) and the 1972 Act, the decree stood set aside and could not be revived
or made executable even by the 1976 Amendment Act. It is, however, impossible
for us to accept this contention because the dominant purpose of the 1976
Amendment Act was to remedy the injustice done to the landlords by the 1972
Act.
Another flaw in the argument of the counsel
for the appellant is that it presumes that the decree became completely without
jurisdiction and stood set aside. That, however, could not be the position in
law. Even if the 1972 Act were to apply, the utmost consequence would be that
the decree would remain in-executable but could not be struck off from the
records of the case. This is a clear case where the doctrine of eclipse would
apply and in view of the 1976 Amendment Act, the decree will revive and become
executable.
This principle has been applied by this Court
in several cases and flows from the well-known doctrine of eclipse which has
been enunciated not only in India but in other countries also. In Sutherland
Statutory Construction by Horack (Vol. I, 3rd Edn.), the following passages may
be noted:
"In a majority of the jurisdictions the
courts recognise 748 the mistake of the legislature and try to determine and
give effect to its intent. If the legislature has expressed its purpose
intelligibly in the amendatory act and provided fully upon the subject
considered, a majority of courts hold that it is a reasonable conclusion that
the legislature did not intend to make the enforcement of the statute
contingent on the continued existence of the repealed statute....
(p. 329) The unconstitutional act physically
exists in the official statutes of the state and is there available for
reference, and as it is only unenforceable, the purported amendment is given
effect. If the law as amended is constitutional, it will be enforced." (p.
335) It is true that the American Constitution as also the American courts have
been most reluctant to apply the doctrine of eclipse but this Court has pointed
out in more than one case that the American view cannot be applied to our
Constitution. The matter first came up for consideration before this Court in
Bhikaji Narain Dhakras & Ors. v. State of Madhya Pradesh & Anr. where
in a similar situation the doctrine of eclipse was fully applied and the court
observed thus:
"The true position is that the impugned
law became, as it were, eclipsed, for the time being, by the fundamental right.
The effect of the Constitution (First Amendment) Act, 1951 was to remove the
shadow and to make the impugned Act free from all blemish or infirmity.. Such
laws were not dead for all purposes.
They existed for the purposes of
pre-Constitution rights and liabilities and they remained operative, even after
the Constitution, as against non-citizens.
In our judgment, after the amendment, of
clause (6) of Article 19 on the 18th June 1951, the impugned Act ceased to be
unconstitutional and became revivified and enforceable against citizens as well
as against non- citizens. But after the amendment of clause (6) the impugned
Act immediately became fully operative even as against the citizens." In
Deep Chand v. State of U.P. & Ors. similar observations 749 were made by
this Court which may be extracted thus:
"As, however, our learned Brother has
thought fit to embark upon a discussion of these questions, we desire to guard
ourselves against being understood as accepting or acquiescing in the
conclusion that the doctrine of eclipse cannot apply to any post- Constitution
law. A post-Constitution law may infringe, either a fundamental right conferred
on citizens only or a fundamental right conferred on any person, citizen or
non-citizen. In the first case the law will not stand in the way of the exercise
by the citizens of that fundamental right and, therefore, will not have any
operation on the rights of the citizens, but it will be quite a effective as
regards non-citizens. In such a case, the fundamental right will, qua the
citizens, throw a shadow on the law which will nevertheless be on the Statute
Book as a valid law binding on non-citizens and if the shadow is removed by a
constitutional amendment, the law will immediately be applicable even to the
citizens without being re- enacted. In other words, the doctrine of eclipse as
explained by this Court in Bhikaji Narain Dhakras v. The State of Madhya
Pradesh [1955 (2) SCR 589] also applies to a post-Constitution law of this
kind.
A pre-Constitution law, stating in the words
of Das, J., as he then was, exists notwithstanding that it does not exist with
respect to the future exercise of the fundamental rights. That principle has
been extended in this decision, by invoking the doctrine of eclipse. As the law
existed on the statute book to support pre-Constitution acts, the Court held.
that the said law was eclipsed for the time being by one or other of the
fundamental rights and when the shadow was removed by the amendment of the
Constitution, the impugned Act became free from all blemish or infirmity."
(Emphasis ours) In Mahendra Lal Jaini v. The State of Uttar Pradesh & Ors.
this Court held as follows:
"The pre-Constitution laws which were
perfectly valid when they were passed and the existence of which is recognised
in the opening words of Art. 13(1) revive by the removal of the inconsistency
in question. This in effect is 750 the doctrine of eclipse, which, if we may
say so with respect, was applied in Bhikaji Narain's case So far as
pre-Constitution laws are concerned, the amendment of the Constitution which
removes the inconsistency will result in the revival of such laws by virtue of
the doctrine of eclipse, as laid-down in Bhikaji Narain's case, for the
pre-existing laws were not still-born and would still exist though eclipsed on
account of the inconsistency to govern pre-existing matters." (Emphasis
supplied) In two recent decisions, this Court has applied the doctrine of
eclipse in similar situations. In S. Anbalagan v. B. Devarajan the following
observations were made:
"Unless the practice of the caste makes
it necessary no expiatory rites need be performed and, ordinarily, he regains
his caste unless the community does not accept him. The practice of caste
however irrational it may appear to our reason and however repugnant it may
appear to our moral and social sense, is so deep-rooted in the Indian people
that its mark does not seem to disappear on conversion to a different religion.
If it disappears, it disappears only to reappear on reconversion."
(Emphasis ours) Similarly, in the case of Kailash Sonkar v. Smt. Maya Devi, to
which one of us (Fazal Ali, J.) was a party, this Court made the following
observation:
"In our opinion, when a person is
converted to Christianity or some other religion the original caste remains
under eclipse and as soon as during his/her life-time the person is reconverted
to the original religion the eclipse disappears and the caste automatically
revives." Thus, applying the rule of law laid down by this Court, there
would be no difficulty in upholding the judgments of the courts below in this
particular appeal. By virtue of the 1972 Act, the decree could not have been
set aside or invalidated and the only consequence which would ensue is that the
decree would be lying dormant and could not be executed. Once the bar placed by
the 1972 Act is 751 removed, by virtue of the doctrine of eclipse the decree
will revive and become at once operative and executable. The courts below have
rightly decided that after the 1976 Amendment Act the decree became legally
executable.
Some other arguments were also advanced on
behalf of the appellant but in view of the express language of the 1976.
Amendment Act and the doctrine of eclipse, they seem to be futile.
For the reasons given above, we uphold the
decree for ejectment passed by the courts below against the appellant and
dismiss the appeal with costs. As the litigation has taken more than a decade,
it is not possible for us to give any time to the tenant for a vacating the
premises and the decree may now be executed forthwith and the landlord put into
possession.
N.V.K. Appeal dismissed.
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