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Niranjan Lal Bhargava v. Musammat Ram Kali Devi

Allahabad High Court

Dec 19, 1949

Judgment

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Factual and Procedural Background

The suit was instituted on 15 December 1943 by Mst. Ram Kali Devi against Pandit Niranjan Lal Bhargava (the defendant) for ejectment from premises known as Sahu Palace. The premises had been let on 1 November 1939 to the defendant for a four-year term expiring on 31 October 1943. The plaintiff sought ejectment on three grounds: (1) expiry of the lease term, (2) that the defendant was causing injury to the building, and (3) arrears of rent of Rs. 100.

The defendant pleaded that certain orders under the Defence of India Rules prevented ejectment, and denied causing injury or owing rent. The Munsif (trial court) gave a conditional decree for ejectment which was suspended while the Defence of India Rules order remained in force.

The plaintiff appealed to the lower appellate court. The lower appellate court, following a decision it cited (Makhan Lal v. Shankar Lal), held that the Munsif should not have passed a conditional decree and granted an unconditional decree for ejectment and mesne profits at Rs. 385 per month, after finding no arrears and no proof of damage. The defendant appealed to this Court in second appeal against that decree.

Two appeals before this Court were addressed: Second Appeal No. 804 of 1946 (challenging the decree) and F.A.F.O No. 255 of 1945 (challenging an order of the lower appellate court rejecting an application said to be under Order XXIII, rule 3 CPC). The Act central to the dispute (United Provinces (Temporary) Control of Rent and Eviction Act (III of 1947)) came into force after the lower appellate court's decision but while the present appeal was pending.

Legal Issues Presented

Whether section 15 of the United Provinces (Temporary) Control of Rent and Eviction Act (III of 1947) can be relied upon by a party in an appeal to set aside or affect a decree which was valid according to law on the date it was passed.
Whether the term "suit" in section 15 includes proceedings on appeal (i.e., whether section 15 applies while the matter is before an appellate court).
Whether the premises in question fall within the definition of "accommodation" under the Act (and specifically whether the word "and" in the statutory definition is conjunctive or disjunctive).
Whether the order of the lower appellate court rejecting an application purportedly under Order XXIII, rule 3 (CPC) was an appealable order, and consequently whether F.A.F.O No. 255 of 1945 is maintainable.

Arguments of the Parties

Plaintiff's Arguments

The plaint (as initially instituted) sought ejectment on expiry of lease, injury to the premises, and arrears of rent. The plaintiff obtained a decree at the lower appellate court for ejectment and mesne profits.
(As recorded by the court) The plaintiff had not initially pleaded or proved facts necessary to bring the case within one or more of the grounds mentioned in section 3 of the Act because that statutory regime did not exist when the suit was instituted.

Defendant/Appellant's Arguments

The defendant originally pleaded that orders under the Defence of India Rules prevented ejectment and denied the allegations of damage and arrears.
The principal argument pressed in the second appeal was that, by reason of the provisions of section 15 of the United Provinces (Temporary) Control of Rent and Eviction Act (III of 1947), the plaintiff is not entitled to a decree for ejectment (the Act came into force while the appeal was pending).
Learned counsel for the respondent (opposing the application of section 15) argued that section 15 refers to "suit" only and therefore does not apply to appeals; and further contended that the premises did not fall within the Act's definition of "accommodation" because, he argued, the definition required the accommodation to be both residential and non-residential.
The respondent also argued it would be unfair to allow the appellant to rely on section 15 (which arose later) without affording the plaintiff an opportunity to plead and prove facts necessary to bring the case within section 3 of the Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shyamdkant Lal v. Rambhajan Singh	That an appellate court is competent to recognize and apply the law as it exists on the date when the appeal is decided.	The Court relied on this Federal Court decision to conclude that it must take into account section 15 of the Act when deciding the appeal, even though the Act came into force after the decree was passed in the lower appellate court.
Lachmeshwar Prasad Shukul v. Keshioar Lal Chaudhuri	That an appellate court may take into account a subsequent change in the law; appellate hearing is in the nature of a rehearing and the court is bound to consider changes in law which have supervened.	The Court treated the Federal Court pronouncements in this case as binding, invoked section 107 CPC and Order XLI, r. 33 CPC as supporting appellate powers, and therefore concluded it must consider the state of the law (i.e., section 15) as at the date of hearing.
Makhan Lal v. Shankar Lal	Authority relied on by the lower appellate court concerning the propriety of conditional decrees and execution timing.	The Court noted that the lower appellate court followed this decision in modifying the decree, but also recorded that the decision relied upon by the lower appellate court had been overruled on Letters Patent Appeal No. 1 of 1945 (Makhan Lal v. Shankar Lal, decided 20 January 1949). The Court therefore did not need to decide whether the lower appellate judge was justified under that authority.

Court's Reasoning and Analysis

The Court proceeded step-by-step as follows:

The Court identified the primary question: whether section 15 of the United Provinces (Temporary) Control of Rent and Eviction Act (III of 1947) can be applied in the appeal to affect a decree that was lawful when passed. The Act commenced after the lower appellate court decision but while the appeal was pending.
The Court held that Federal Court authority (Shyamdkant Lal and Lachmeshwar Prasad Shukul) established that an appellate court must take into account the law as it exists on the date when the appeal is decided. The Court regarded these pronouncements as binding and thus held it was its duty to consider section 15.
The Court quoted section 15: “In all suits for eviction of a tenant from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in section 3.”
The Court rejected the respondent's contention that “suit” in section 15 refers only to proceedings before the court of first instance and not to appeals. The Court reasoned that the Act does not refer to appeals specifically and that a suit continues while pending before an appellate court; an appeal is a continuation of the suit. The Court also referenced section 107 CPC and Order XLI, r. 33 CPC (as cited in the Federal Court decision) to support the appellate court's power to rehear and make such orders as justice requires.
The Court addressed the contention that the definition of “accommodation” required it to be both residential and non-residential. It rejected that interpretation, holding that the word “and” in the definition should be read disjunctively. The Court concluded the statutory definition comprehensively covers residential, non-residential, or partly residential and partly non-residential accommodation.
The Court accepted the respondent’s point that when the suit was instituted it was not necessary to plead facts required to bring the case within the grounds of section 3 (because the Act did not then exist). The Court found merit in the argument that it would be unjust to permit the appellant to rely on section 15 without affording the plaintiff an opportunity to amend pleadings and present evidence to meet the statutory requirements.
Regarding F.A.F.O No. 255 of 1945, the Court analyzed the application filed in the lower appellate court (purportedly under Order XXIII, r. 3 CPC). The Court found the application was in substance not under that rule (no compromise was alleged) and that the order rejecting the application was not appealable merely because the application was headed as under that rule. Consequently, the appeal was held not maintainable.
On the basis of the above analysis, the Court concluded that section 15 must be considered, that the plaintiff should be given an opportunity to amend and prove matters necessary under the Act, and that the decrees below could not properly stand without rehearing in light of section 15 and the need for opportunity to amend.

Holding and Implications

Holding:

Second Appeal No. 804 of 1946 is ALLOWED. The decrees passed by the courts below are set aside and the case is remanded to the court of first instance through the lower appellate court with directions to permit the plaintiff to amend her plaint, to re-hear the suit after amendment, to allow the defendant to file such written statement to the amended plaint as he may desire, and to give both parties the opportunity to lead such evidence as they desire to produce. Costs incurred to date and to be incurred shall abide the result.

F.A.F.O No. 255 of 1945 is DISMISSED with costs.

Implications:

The direct effect is that the prior decrees for ejectment (including the decree for mesne profits) are set aside and the matter must be reheard from the court of first instance after allowing amendment and further evidence as directed.
The Court applied binding Federal Court authority to hold that an appellate court must consider changes in law occurring after the decree but before the appeal is decided (here, section 15 of the 1947 Act). Thus section 15 will be considered in the rehearing process now ordered.
The order dismissing F.A.F.O No. 255 clarifies that an order is not rendered appealable merely by the heading of the application under which it was made; the substance of the application and the nature of the order determine appealability.
The opinion does not announce that it is creating a new precedent beyond its application of existing Federal Court authority; its practical consequence is the remand and opportunity to amend and present evidence in light of the statutory regime now in force.

Case remanded.

Show all summary ...

Seth, J.:— Both these appeals arise out of the same suit which was instituted on 15th December, 1943, by Mst. Ram Kali Devi against the appellant, Pandit Niranjan Lal Bhargava, for his ejectment from a building, known as Sahu Palace. The aforesaid premises were let on 1st November, 1939, by the plaintiff to the defendant for a period of four years, expiring on 31st October, 1943. The plaintiff sought to eject the defendant on three grounds, namely,

(1) that the term of the lease had expired,

(2) that the defendant was causing injury to the building, and

(3) that a sum of Rs. 100 had remained due as arrears of rent.

The defendant pleaded, in defence, that certain orders passed under the Defence of India Rules prevented the plaintiff from ejecting him. He denied that he was causing any injury to the building or that, any arrears of rent were outstanding against him.

The Munsif gave a conditional decree in the suit to the plaintiff. By that decree the defendant was ordered to be ejected from the premises, but it was provided that the decree would remain in suspense till such time as the order passed under the Defence of India Rules remained in force.

Aggrieved by this decision, the plaintiff appealed to the lower appellate court. The lower appellate court, following a decision of this Court in Makhan Lal v. Shankar Lal(1) held that the Munsif should not have passed a conditional decree, but that, the matter, whether the defendant could be actually ejected in execution of the decree, should be considered at the time when the application for execution was made. The learned Judge found that no arrears of rent were due, and that the plaintiff had failed to prove that the defendant had caused any damage to the premises, and granted an unconditional decree for the ejectment of the defendant. A decree for mesne profits was also granted at the rate of Rs. 385 per month. The defendant has come up in second appeal to this Court against this decree of the lower appellate court.

The decree of the lower appellate court was attacked on numerous grounds in the memorandum of appeal. It has, however, been pressed before us principally on the ground that by reason of the provisions of section 15 of the United Provinces (Temporary) Control of Rent and Eviction Act (III of 1947) the plaintiff is not entitled to get a decree for the ejectment of the defendant. The Act came into force after the appeal had been decided by the lower appellate court and while the present appeal was pending. The first question for Consideration therefore, is, whether section 15 can be relied on by the appellant in order to get decree set aside, which was according to law on the date when it was passed.

So far as this point is concerned, two decisions of the Federal Court, brought to our notice, conclude the matter in favour of the appellant. The first of these decisions is to be found in Shyamdkant Lal v. Rambhajan Singh where it was held that the appellate court is competent to recognize the law as it exists on the date when the appeal comes to be decided.

The second case which has been relied on is Lachmeshwar Prasad Shukul v. Keshioar Lal Chaudhuri(2) where the question, whether an appellate court could take into account the subsequent change of law, was again carefully considered. Sir Maurice Gwyer, C.J, quoted with approval the following observations from an American case:

“We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.”

Varadachariar, J., dealing with this question, observed that the Court of appeal in India was not merely a Court of error and was, therefore, not bound to confirm a decree passed by the court below, if it was shown to be correct according to the law as it stood on the date when it was passed, but that the hearing of an appeal was in the nature of a rehearing, for it is provided in section 107 of the Code of Civil Procedure, that a Court of appeal shall have the same power and shall perform, as nearly as possible, the same duties as are conferred or imposed on the court of first instance. He referred further to the provisions of Order XLI, rule 33 of the Code of Civil Procedure, where an appellate court has been given the power to make such further or other decree or order as the case may require. The learned Judge reviewed the case law—Indian and English—and came to the conclusion, that a Court of appeal in India possesses the same powers which a Court of appeal has in England. All the three learned Judges, constituting the Bench, concurred in the view, that an appellate court is bound to take into account the state of law as it exists on the date when the appeal comes up for hearing.

These pronouncement by their Lordships of the Federal Court are binding upon us, and, according to them, it is our duty to take into account section 15 of the Act in considering, whether the plaintiff is entitled to eject the defendant from the premises.

Section 15 of the Act reads as follows:

“In all suits for eviction of a tenant from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in section 3.”

Learned counsel for the respondent has argued that section 15 provides for a suit only and does not apply to an appeal. In our opinion there is no force in this contention, for the Act does not anywhere provide specifically for appeals and we consider that the “suit” mentioned in section 15 includes a suit while it is before the court of first instance and also while it is before the appellate court. An appeal is but a continuation of a suit. The learned counsel for the appellant is, therefore, right in his contention, that the decree for the eviction of the appellant should not be passed unless it is shown that the case is covered by any one or more of the grounds mentioned in section 3 of the Act.

Learned counsel for the respondent further contended that section 15 is not applicable to this case, because the premises from which the defendant is sought to be evicted do not come within the definition of the term “accommodation” as defined in the Act. The contention of the learned counsel is that in order to be an ‘accommodation’ within the meaning of the section it should be both residential and non-residential, and that if it is only a residental accommodation, it is not ‘accommodation’ within the meaning of that term as defined in the Act.

In our opinion, this contention is devoid of all force. We consider that the word ‘and’ has been used in this definition disjunctively and not conjunctively. According to the interpretation put by the learned counsel, if the accommodation is entirely residential the Act does not apply to it and a tenant can not get the benefit of the Act. We do not think that such consequences were intended or contemplated by the legislature. The ‘accommodation’, as defined in the Act, clearly means residential or non-residential, or partly residential and partly non-residential accommodation. The definition is comprehensive enough to cover all kinds of accommodation.

In the view of the case that we have taken, it is not necessary for us to discuss whether the learned Judge of the lower appellate court was justified in modifying the decree of the court of first instance in accordance with the decision in Makhan Lal v. Shankar Lal. We would, however, like to point out, that on a Letters Patent Appeal the decision relied on by the learned Judge has been over-ruled; vide Letters Patent Appeal No. 1 of 1945, Makhan Lal v. Shankar Lal, decided on 20th January, 1949.

Learned counsel for the respondent rightly points out, that when he instituted the suit, it was not necessary for him to plead and prove facts which were necessary to be pleaded and proved in order to bring his case within one or more of the grounds mentioned in section 3 of the Act. He points out that it would be extremely unjust to his client that the appellant should be permitted to rely on section 15 of the Act, which came into existence after the case had been decided by the lower appellate court, while she herself should not be afforded any opportunity of pleading and proving facts which would exclude the application of section 15 to the present case. We consider that there is great deal of force in this contention.

We have so far discussed Second Appeal No. 804 of 1946. The other appeal, namely F.A.F.O No. 255 of 1945, appears to be entirely misconceived. An application was made before the lower appellate court in which it was prayed that on account of certain matters, the plaintiff was estopped from continuing the appeal in the lower appellate court. The application purported to be under Order XXIII, rule 3 of the Code of Civil Procedure, but was, in fact and in substance, not an application under that rule, because no compromise was alleged in that application. All that was said was, that the plaintiff was estopped from proceeding with the appeal, and the only prayer contained in the application was that the appeal be dismissed. The lower appellate court rejected this application. This order of the lower appellate court is not an appealable order. The appeal has been filed treating the order to be under Order XXIII, rule 3, because the application was headed as such. The mere heading of the application does not make an order passed upon it appealable if in its substance and reality the order be not, an appealable order. In our opinion, therefore, F.A.F.O No. 255 of 1945 is not maintainable because the order against which it has been filed is not an appealable order.

For the reasons indicated above, we allow Second Appeal No. 804 of 1946, set aside the decrees passed by the courts below and remand the case to the court of first instance, through the lower appellate court, with the direction that the plaintiff should be permitted to amend her plaint and the suit be reheard and decided after the plaint has been amended, after giving an opportunity to the defendant, to file such written statement to the amended plaint as he may desire, and after giving an opportunity, to the parties to lead such evidence as they may desire to produce. Costs incurred up to this date and costs to be incurred hereafter shall abide the result.

F.A.F.O No. 255 of 1945 is dismissed with costs.

The record shall be sent down to the court below as early as possible. The office will, so far as possible, expedite the preparation of the decree.