Vatan
Mal Vs. Kailash Nath [1989] INSC 110 (30 March 1989)
Natrajan,
S. (J) Natrajan, S. (J) Pathak, R.S. (Cj) Venkatachalliah, M.N. (J)
CITATION:
1989 AIR 1534 1989 SCR (2) 192 1989 SCC (3) 79 JT 1989 (2) 196 1989 SCALE
(1)915
ACT:
Rajasthan
Premises (Control of Rent and Eviction) Act, 1950--Section 13-A-benefit of
provisions--Conferred on all tenants-Provided actual eviction had not taken
place.
HEAD NOTE:
Appellant
herein was a lessee of the Respondent in respect of a shop since 1961, at a
monthly rent of Rs.25 later increased to Rs.30 and in addition to the said rent,
he was to pay house tax to the municipality. Respondent- landlord filed a suit
for eviction against the appellant on the ground of default in payment of rent
for the period 1.2.1966 to 31.12.66. The appellant filed an application in that
suit under sec. 13(4) of the Act (as it stood prior to amendment) for
determination of arrears of rent and the interest payable thereon. The Trial
Court determined the arrears of rent and the interest payable by the appellant.
Consequent
upon the appellant's depositing the same, the suit was dismissed in terms of
sec. 13(7) of the Act. The appellant continued depositing the rent in Court.
Thereafter the Respondent filed another suit on 21.5.75 alleging that the
appellant has again committed default in payment of rent and should therefore
be evicted. The appellant received a notice calling upon him to appear in Court
on 10.2.76. Since he had not received a copy of the plaint, he was granted time
till 30.3.76 to file his written statement. In the written statement he refuted
his liability to pay the rent and also moved an application u/s 13(3) &
13(4) of the amended Act praying that if in the course of his depositing the
rent in court, there has been any omission, due to oversight the Court may
determine the arrears of rent & interest payable thereon and permit him to
deposit the same in court.
It may
be pointed out here that before the appellant was served with the notice of the
suit, the Act was amended on 29.9.75 by Amending Ordinance No. 26 of 75 whereby
a new section 13-A was added to the Act. The object of the newly added section
was to provide benefit to all tenants against whom suits for eviction on the
ground of default in paying the rent were pending by making a provision that
the Courts shall not pass any decree in favour of landlords on that ground if
the 193 tenant makes an application within a stipulated period and deposits in
court the total rent due.
The
Trial Court passed orders on the application u/s 13(3) & 13(4) and called
upon the appellant to deposit a sum of Rs.335 towards arrears of rent and
interest before 28.7.76. The appellant complied with the order but despite
that, the Trial Court passed a decree for eviction and the appellate Court
confirmed the same.
In the
second appeal preferred by the appellant, he contended that the Trial Court
ought to have treated the application filed by him u/s 13(3) & 13(4), as
one filed u/s 13-A of the Act and given the benefit thereof to him. Even though
the High Court found that the appellant having re- ceived the notice of the
suit late and hence was not in a position to make the application within 30
days, declined to interfere because in its view the Act has not provided for
any relief to tenants placed in the situation in which the appellant was
placed. The High Court held that the Act contains a lacuna but the same can be
remedied by the legislature and not by Courts and as such the appellant cannot
claim the benefit of sec. 13-A of the Act. The suit having been filed prior to
the coming into force of Amending Act, the same will be governed by the
provisions of unamended Act.
On the
dismissal of the second appeal by the High Court, the appellant has filed this
appeal after obtaining special leave.
Before
this Court two questions arose for consideration viz: (1) whether the appellant
is not entitled to the bene- fit of sec. 13-A because he had not filed an
application within 30 days from the date of commencement of the Act, and (2)
even otherwise whether by reason of the earlier default in payment of rent for
the period 1.2.1966 to 31.12.1966, the appellant is disentitled under the Act
to claim the benefit of sec. 13-A.
Allowing
the appeal, this Court, HELD: Section 13-A has been given overriding effect.
Subsection
(1) of section 13-A mandates all courts not to pass any decree in favour of a
landlord for eviction of a tenant on the ground of nonpayment of rent, if the
tenant makes an application as per clause (b) and pays to the landlord or deposits
in court within the prescribed time the total amount of rent in arrears
together with interest and full costs of the suit. [199B-C] 194 The intention
of the legislature to confer the benefit of section 13-A to all tenants,
provided actual eviction had not taken place could further be seen by the terms
of section (c). [199D-E] It would be unreasonable and inequitable to hold that
the legislature had intended to confer the benefit of sec.
13-A
only to those tenants who had received notice of the suit filed against them
before the Ordinance came into force and not to those tenants against whom
proceedings were pending in the sense they had been instituted but who had no
notice of the pendency of the suit. [199F-G] Even though it was found that some
arrears had to be paid, the appellant cannot be denied the benefit of sec. 13-A
because the section has been given overriding effect in so far as suits and
other proceedings which were pending on the date of the promulgation of the
ordinance and as such the proviso to sub-sec. (6) of sec. 13 of the amended Act
would not disentitle the appellant to claim the benefit of sec. 13-A. [202H;
203A]
B.P. Khemka
Pvt. Ltd. v.V.B.K. Bhowmick, [1987] 2 SCR 559, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 3604 of 1987.
From
the Judgment and Order dated 19.9.1986 of the Rajasthan High Court in
S.B.C.S.A. No. 163 of 1986.
S.K.
Jain and 1. Makwana for the Appellant.
Rajinder
Sachar, Rameshwar Nath, B.P.S. Mangat and Suresh Vohra for the Respondent.
The
Judgment of the Court was delivered by NATARAJAN, J. In this appeal by special
leave arising from a judgment of the High Court of Rajasthan in a second
appeal, the question for consideration is whether the appel- lant will not be
entitled to claim the benefit of Section 13-A of the Rajasthan Premises
(Control of Rent and Evic- tion) Act, 1950 (hereinafter referred to as the Act)
as has been held by the High Court. It is worthy of mention even here that
though the suit for eviction filed by the respond- ent was pending on the date
the ordinance came to be promul- gated, the appel- 195 lant had no knowledge of
the filing of the suit and he came to be served with notice in the suit only
after some months after the Ordinance came to be promulgated. The High Court
has based its conclusions on two factors viz.
(1) no
application under Section 13-A had been made by the appellant in the suit filed
by the respondent within a period of 30 days from the date of commencement of
the Ordinance and
(2) the
suit had been filed before the Amending Ordinance No. 26 of 1975 was issued and
hence the proceedings would be governed by the provisions of the unamended Act.
The
facts are not in controversy and are briefly as under. Since 1961 the appellant
was a lessee of the respondent in respect of a shop. The agreed rent was Rs.25
per mensem and in addition he had also to pay the house tax to the
municipality. The rent was increased to Rs.30 per mensem with effect from
1.1.1963. On the ground the appellant had committed default in payment of rent
for the period 1.2. 1966 to 31.12.66, the respondent filed a suit on 17.1.1967
for eviction. The appellant filed an application under Section 13(4) of the Act
(as it stood prior to amendment) for determination of the arrears of rent and
the interest payable thereon. The Trial Court determined the arrears of rent
and the interest payable thereon and on the appellant depositing the same, the
suit was dismissed in terms of Section 13(7) of the Act. Thereafter, the
appellant went on depositing the rent in court. However, the respondent filed
another suit on 21.5.75 alleging that the appellant had again committed default
in payment of rent and should there- fore be evicted. The appellant was served
with a notice calling upon him to appear in Court on 10.2.76. Since a copy of
the plaint was not sent along with the notice, the appel- lant was furnished a
copy of the plaint on 10.2.76 and he was granted time till 30.3.76 to file his
written statement.
In his
written statement the appellant refuted his liability to be evicted on the
ground of default in payment of rent.
In
addition, by way of abundant caution, he filed a petition under Section 13(3)
and 13(4) of the amended Act praying that if in the course of depositing the
rent during the long period of eight years from 1967 to 1975 there had been any
omission, due to over-sight, in depositing the monthly rent, the Court may
determine the amount of shortfall and the interest payable thereon and permit
him to deposit the same in Court.
Even
before the appellant was served with notice in the suit, the Act came to be
amended on 29.9.1975 by Amending Ordinance No. 26 of 1975 (later replaced by an
Act). The Ordinance provided for a new section viz. Section 13-A being added to
the Act. Section 13-A is in the following terms:
196
"13-A. Special provisions relating to pending and other
matters.--Notwithstanding anything to the contrary in this Act as it existed
before the commencement of this Amending Ordinance or in any other law.
(a) No
court shall, in any proceeding pending on the date of commencement of the
(amending ordinance) pass any decree in favour of a landlord for eviction of a
tenant on the ground of non-payment of rent, if the tenant applies under clause
(b) and pays to the landlord, or deposits in court, within such time such
aggregate of the amount or rent in arrears, interest thereon and full costs of
the suit as may be directed by the court under and in accordance with that
clause;
(b) in
every such proceeding, the court shall, on the application of the tenant made
within thirty days from the date of commencement of the (amending ordinance)
notwithstanding any order to the contrary determine the amount of rent in
arrears upto the date of the order as also the amount of interest thereon at 6%
per annum and costs of the suit allowable to the landlord; and direct the
tenant to pay the amount so determined within such time, not exceeding ninety
days, as may be fixed by the court; and on such payment being made within the
time fixed as aforesaid, the proceeding shall be disposed of as if the tenant
had not committed any default;
(c)
the provisions of clauses (a) and (b) shall mutatis mutandis apply to all
appeals; or applications for revisions, preferred or made, after the
commencement of the (amending ordinance) against decrees for eviction passed
before such commencement with the variation that in clause (b), for the
expression from the commencement of the (amending ordinance), the expression
"from the date of the presenta- tion of the memorandum of appeal or applica-
tion for revision" shall be substituted;
(d) omitted.
(e) omitted.
(f) omitted."
197
The Trial Court, after hearing both the parties, passed orders on .the
application filed earlier by the appellant under Sections 13(3) and 13(4) of the
Act and called upon the appellant to deposit a sum of Rs.335 towards arrears of
rent and interest before 28.7.1976 after giving credit to the sum of Rs. 1290
already deposited by him. The appellant complied with the order of the Court by
depositing the said amount within the prescribed time.
Even
so, the Trial Court passed a decree for eviction against the appellant on the
ground of default in payment of rent and the Appellate Court confirmed the
decree. In the second appeal preferred to the High Court, the appellant's
counsel contended that the Trial Court ought to have treated the appellant's
application under Section 13(3) and 13(4) as one under Section 13-A and given
the benefit of the Section to the appellant and dismissed the suit for
eviction. The High Court, in spite of accepting the position that though the
suit was pending when the Amending Ordinance was promul- gated, the appellant
could not have filed a petition under Section 13A within thirty days from the
date of the Ordi- nance coming into force as the suit summons came to be served
on him only later, nevertheless declined to interfere because in its view the
Act has not provided for any relief to tenants. placed in the situation in
which the appellant was placed. The High Court has further held that the Act
contains a lacuna but it can be remedied only by the Legis- lature and not by
the Courts and, as such, the appellant cannot claim the benefit of Section 13A
of the Act. The High Court has expressed its view in the following terms:
"Section
13-A of the Rent Control Act does not envisage and does not provide for a contingen-
cy as in the present case where the suit was pending but the defendant had no
notice of the pendency of the suit and could not have availed of the benefit of
Section 13-A of the Rent Control Act on account of restriction placed under
Clause (b) for filing an applica- tion u/s 13-A within one month from the date
of the commencement of the Amending Ordinance.
It is
true that Section 13-A is a beneficial legislation, to help the tenants but the
Court cannot substitute or add something to the Act. It will be for the
legislature to amend section 13-A of the Rent Control Act so as to cover up
contingency arising in the present case. Language of Amended Section 13-A is
not ambiguous and therefore, there is no question of interpreting so as to
extend the rule of beneficial construction in order to cover up cases like the
present one." 198 The High Court has further held that since the appellant
had committed default in payment of rent for a second time, he will not be
entitled to claim the benefit of Section 13(7) of the Act once again. The High
Court has expressed its view on this aspect of the matter in the following
terms:
"It
is also not disputed that defendant had taken benefit of Section 13(7) of the
Old Rent Control Act in an earlier suit filed by the plaintiff on the ground of
default in payment of rent. Since the suit had been filed before coming into
force of the Amending Ordinance of 1975 or the Amending Act of 1976, the provi-
sions of the Old Rent Control Act before amendment will apply, as has been held
by the Division Bench of this Court in Kishan Lal Sharma (supra)." The two
grounds on which the High Court had dismissed the appellant's second appeal are
the subject-matter of attack in this appeal.
Learned
counsel for the appellant contended that the High Court, after having found
that though the suit was admittedly pending when the Amending Ordinance was promul-
gated the appellant had no notice of the pendency of the suit at the relevant
time and as such he could not possibly have filed an application within one
month's time from the date of the commencement of the Ordinance, should not
have denied the benefit of Section 13-A to the appellant on the ground the Section
does not provide for an application being made beyond a period of thirty days
from the date of the commencement of the Ordinance. On the other hand, the
learned counsel for the respondent argued that the Section is clear in its
terms and, as such, the High Court was perfectly justified in holding that the
appellant cannot claim benefits under Section 13A of the Act. It was his
further contention that since the appellant had committed default in payment of
rent for a second time he will not be entitled to claim benefit under Section
13A, even if the delay in filing the application beyond the prescribed period
of thirty days is to be overlooked. In view of the conflict- ing arguments of
the learned counsel, two questions fall for consideration viz (1) whether the
appellant is not entitled to claim the benefit of Section 13A because he had
not filed an application within thirty days from the date of commence- ment of
the Ordinance and (2) even otherwise, whether by reason of the earlier default
in payment of rent for the period 1-2-1966 to 31-12-1966, the appellant is
disentitled under the Act to claim the benefit of Section 13A.
199 So
far as the first question is concerned, the High Court has failed to see that
the object of enacting Section 13A by the Legislature was to confer benefit on
all tenants against whom suits for eviction on the ground of default in payment
of rent were pending. To achieve the object, Section 13-A has been given
overriding effect. Sub-clause (1) of Section 13-A mandates all courts not to
pass any decree in favour of a landlord for eviction of a tenant on the ground
of non- payment of rent, if the tenant makes an application as per clause (b)
and pays to the landlord or deposits in court within the prescribed time the
total amount of rent in arrears together with interest and full costs of the
suit.
It is
no doubt true sub-clause (b) lays down that in every such proceeding, the Court
shall, on the application of a tenant made within thirty days from the date of
the com- mencement of the amending Ordinance, determine the amount of rent in
arrears as well as the amount of interest at six per cent per annum and the
costs of the suit and direct the tenant to pay the amount so determined within
a time not exceeding ninety days as may be fixed by the Court. Sub- clause (b)
further provides that on such payment being made, the proceedings shall be
disposed of as if the tenant had not committed any default. The intention of
the Legislature to confer the benefit of Section 13A to all tenants, provid- ed
actual eviction had not taken place, could further be seen by the terms of
sub-clause (c). Under sub-clause (c) the provisions of sub-clause (a) & (b)
have been made ap- plicable mutatis mutandis to all appeals or applications for
revision preferred or made after the commencement of the Amending Ordinance and
the only stipulation contained is that the tenant preferring an appeal or an
application for revision should apply to the Court within a period of thirty
days from the date of presentation of the memorandum of appeal or the
application for revision for giving him the benefit of Section 13A. Such being
the case, it would be unreasonable and inequitable to hold that the
Legislature/had intended to confer the benefit of Section 13A only to those tenants
who had received notice of the suit filed against them before the Ordinance
came into force and not to those tenants against whom proceedings were pending
in the sense they had been instituted but who had no notice of the pendency of
the suit. In this case, it is common ground that though the suit was filed by
the respond- ent on 21-5-1975, the appellant had no notice of the
suit on 29.9.1975 when the Ordinance was promulgated or even before the expiry
of thirty days after the Ordinance was promulgat- ed. Such being the case, the
appellant, even if he had known of the promulgation of the Amending Ordinance
on 29-9-1975, could not have known that a suit for eviction had been filed
against him on the ground of default in payment of rent and that he should file
an applica- 200 tion under Sec. 13-A(1)(b) within thirty days of the com- mencement
of the Ordinance. It would therefore be futile to expect compliance from him of
the terms of Sec. 13-A(1)(b) in the suit which was no doubt pending, within
thirty days from the date of the commencement of the Ordinance to claim the
benefit of Section 13A.
A
somewhat similar situation came to be noticed by this Court in B.P. Khemka Pvt.
Ltd. v.B.K. Bhowmick, [1987] 2 SCR 559. In that case the tenant made an
application, in the suit filed by the landlord for eviction on the ground of
default in payment of rent, under Section 17(2) of the West Bengal Premises
Tenancy Act for the court determining the amount of rent payable by him to the
landlord. During the pendency of the proceeding, the West Bengal Premises
Tenancy (Amending) Ordinance, which was later replaced by an Act, came to be
promulgated with effect from 26-8-1967. Sub-
sections (2A) and (2B) to Section 17 of the Act were insert- ed and Section 5
of the Ordinance gave retrospective effect to the amendments and provided that
the amendments made by the Ordinance shall have effect in respect of suits includ-
ing appeals which were pending on the date of the commence- ment of the
Ordinance. To avail the benefit of the amended provision, the tenant preferred
an application within one month and prayed for the payment of the arrears of
the rent.
The
Trial Court determined the amount and the tenant paid the entire arrears but
even so the Trial Court struck off the defence of the appellant on the ground
that in paying the rent for the months of September, 1968 and March, 1969 there
had been a delay of 44 days and 6 days respectively and hence there was a
contravention of Section 17(1) of the Act. Thereafter the landlord's suit was
decreed and the decree was confirmed by the Appellate Court. In the second
appeal preferred by the tenant the High Court not only confirmed the decree for
eviction but went a step further and held that the tenant was not entitled
under the Act to file an application under Section 17(2A)(b) because he had not
filed the application within the time specified under Sub-section (1) of
Section 17 of the Act viz. "one month from the service of the writ of
summons on the defendant or where he appears in the suit or proceeding without
the writ of summons being served on him, within one month of his
appearance." The High Court expressed its View as under:
In our
view, the application under section 17(2A)(b) was not also maintainable.
It is
true that Section 17(2A)(b) was made applicable to pending suits by the
Ordinance.
But
such applicability will be subject to the limitation imposed 201 by sub-section
(2B) of Section 17, namely, that an application under sub-section (2A)(b) has
to be made before the expiry of the time specified in sub-section (1) of
Section 17 for the deposit or payment of the amount due on account of default
in payment of rent. Under sub-section (1) of Section 17 the time speci- fied is
one month from the service of the writ of summons on the defendant or where he ap-
pears in the suit or proceeding without the writ of summons being served on
him, within one month of his appearance. In the instant case, the summons was
served on the defendants on April 6, 1967. The application under sec- tion
17(2A)(b) having been filed on September 22, 1967, it was barred by limitation
.....
In our
view, after the expiry of one month of the service of summons on the
defendants, they had no right to avail themselves of the provi- sions of
section 17(2A). Sub-section (2B) of section 17 having prescribed a time limit
for an application under sub-section (2A), no other period of limitation can be
substituted for the purpose of making an application for instalments. It is
true that the Act is a remedial statute, but that fact does not give the Court
jurisdiction to alter the period of limitation as prescribed by the statute for
the purpose of giving relief to the tenant. If the legislature had intended
that the tenant in a pending suit would be entitled to make an application
under section 17(2A) within one month of the date of promulgation of the
Ordinance, it would have expressly provided for the same as it has done in
other cases covered by section 17B and 17D." In the appeal preferred by
the tenant to this Court against the judgment of the High Court, this Court disap-
proved the view taken by the High Court. In the judgment, reference was made to
the decisions in Madhav Raw Scindia v. Union of India, AIR SC 197 1 530 and Dy.
Custodian v. Offi- cial Receiver, [1965] 1 SCR 220 while setting out the prin- ciple
to be followed in the matter of construction of the provisions of an Act. It
was observed that the provisions of an Act must be construed in such a manner
that the construc- tion should serve the purpose of achieving the aim and
object of the Act and not in a way as would defeat the legislative intent
behind the Act. After setting out the principle, the fallacy contained in the
view taken by the High Court was pointed out in the following manner:
"The
High Court was, therefore, in error in holding that 202 the application under
Section 17(2A)(b) was itself not maintainable. If the High Court's view is to
be accepted it would then amount to asking the appellant to perform the
impossible i.e. asking the appellant to file an applica- tion under section
17(2A)(b) which came into force on 26.8. 1967 within one month from 6.4. 1967
when the suit summons was served." The view taken in B.B. Khemka (supra)
would have rele- vance in this case also because though the amending Ordi- nance
came to be promulgated on 29-9-1975, the appellant came to know of the filing
of the suit only long after when notice was served on him to appear in Court on
10-2-1976.
Therefore,
the question of filing an application under Section 13A would arise only when
the appellant came to know of the filing of the suit and its pendency. In
construing the terms of Section 13A, the Court has to bear in mind the object
underlying the introduction of the Section by the Legislature. It is a settled
principle that the interpreta- tion of the provisions of a statute should
conform to the legislative intent as far as possible and the Courts should not
take a narrow or restricted view which will defeat the purpose of the Act. So
viewed the first question has to be answered in favour of the appellant.
In so
far as the second question is concerned, it is not as if the appellant had
committed a second default in the strict sense of the term. The earlier suit
was filed on 17-1-1967 and the appellant had made an application under Section
13(4) of the Act and had the amount of arrears and the interest payable thereon
determined by the Court. There- after he had been depositing the rent in Court
regularly.
However,
when the respondent filed a second suit on 21-5- 1975 alleging that the
appellant had again committed default in payment of rent, the appellant had bonafide
represented to the Court that he had been regularly depositing the rent and the
house tax but it may be possible that there may have been some delay or
omission here and there in the long period of eight years in the payment of
rent and hence the Court may determine the amount of arrears, if any, and
afford him opportunity to pay the arrears. This prayer was granted and the
Court had determined the arrears and the interest payable thereon and the
appellant deposited the amount so determined within the prescribed time. It
cannot, therefore, be said that the appellant had knowingly and wilfully
committed a second default. Even though it was found that some arrears had to
be paid, the appellant cannot be denied the benefit of Section 13A because the
Section has been given overriding effect in so far as suits and other
proceedings which were pending on 203 the date of the promulgation of the
Ordinance and as such the proviso to sub-section 6 of the Section 13 of the
amend- ed Act would not disentitle the appellant to claim the benefit of
Section 13-A. The High Court was therefore in error in holding that since the
suit had been filed before Sec-13A was introduced, the appellant would be
governed only by the provisions of the Act before its amendment.
For
these reasons the second question also has to be answered in favour of the
appellant. In the light of our conclusion on the two questions falling for
consideration in this appeal, the judgment of the High Court as well as the
judgments of the courts below cannot be sustained. Accord- ingly, the appeal is
allowed and the suit filed by the respondent will stand dismissed. The
appellant will however, pay the full costs of the suit to the respondent as
envisaged under Section 13-A, if he has not already paid the same. No order as
to costs in this appeal.
Y.L.
Appeal allowed.
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