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Radhey Lal Judgment-Debtor- v. Mst. Lareti Decree-Bolder-.
Structured Summary of the Opinion — Mushtaq Ahmad, J.
Factual and Procedural Background
This is an appeal by the judgment-debtor against an order of the lower appellate court confirming execution of a decree for ejectment. The original suit was filed on September 17, 1945 for ejectment and arrears of rent (Rs. 3-8-0 per mensem) from June 30 to September 9, 1945. By a consent decree dated January 2, 1947 the defendant (appellant) agreed to vacate the house by August 1, 1947; if he failed to do so the plaintiff (decree-holder/respondent) was to be entitled to execute the decree for ejectment without restriction. The decree also contained an agreement on rent adjustments for repairs to be determined by Mr. Raghubar Sahai Raizada, but no ascertainment by him was ever made. The plaintiff filed various applications claiming attempts by her counsel to value repairs were frustrated by the defendant's evasion.
On August 5, 1947 the decree-holder applied for execution of the decree. The appellant objected, invoking Section 14 of the U.P. (Temporary) Control of Rent and Eviction Act III of 1947 as barring ejectment. On August 25, 1947 the respondent served a notice demanding Rs. 91 as rent (from June 30, 1945 to August 30/31, 1947). On September 15, 1947 the appellant sent a money order for Rs. 28 which the respondent refused to accept. The execution court allowed the appellant's objections; the lower appellate court reversed and dismissed those objections. The present appeal challenges that decision.
Legal Issues Presented
- Whether Section 14 of the U.P. (Temporary) Control of Rent and Eviction Act III of 1947 prevents execution of the decree for ejectment given the date on which the Act is to be regarded as commencing.
- If Section 14 applies, whether the plaintiff nevertheless had grounds for ejectment under Clause (a) of Section 3 of the Act (wilful failure to pay arrears of rent within one month of a notice of demand).
- Whether a consent decree (by which a tenant agreed to vacate by a specified date) can be enforced notwithstanding the protective provisions of the Rent Control statute.
Arguments of the Parties
Appellant's Arguments
- The appellant's principal contention was that Section 14 of the U.P. (Temporary) Control of Rent and Eviction Act III of 1947 precluded his ejectment; i.e., no decree for eviction passed before the date of commencement of the Act could be executed while the Act remained in force except on grounds in Section 3.
- Implicitly, the appellant relied on a contention that the relevant demand notice relied upon by the plaintiff (the August 25, 1947 notice) was post-suit and therefore could not establish wilful default under Section 3(a).
Respondent's Arguments
- The respondent (decree-holder) maintained that execution was permitted because the consent decree entitled him to eject the appellant after August 1, 1947.
- The respondent further argued that the judgment-debtor's Section 14 objection was untenable because Section 14 did not apply to a consent decree: where the defendant agreed to vacate by a certain date and failed to do so, the landlord could claim ejectment irrespective of the statutory prohibition.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abhilak Ram v. Uma Shanker, 1950 A.L.J. 817 | Held that "date of commencement of this Act" meant the date of publication (the 1st March, 1947). | The court noted this decision as taking the divergent view that the Act's commencement should be treated as the publication date; the present court distinguished and declined to follow that view, preferring the contrary authority. |
| Sahabuddin v. Mohan Lal (single-Judge decision referred to in the opinion) | Held that the "date of commencement" was the date to which the Act was made retrospective under Section 1(3) (1st October, 1946). | The judge in the present case expressly aligned with this view, accepting that the Act is to be regarded as commencing on the date fixed by Section 1(3) (1st October, 1946) and applying that conclusion to hold Section 14 inapplicable to the decree dated 2 January 1947. |
| Satish Chandra Roy Chaudhry v. Bimalendu Sen, A.I.R. 1951 Assam 27 | Bench decision under the Assam Urban Area Rent Control Act (1949) holding that nothing in that Act prevented a tenant from contracting out of privileges conferred by the statute; a tenant could agree to vacate by a date, and the landlord could claim ejectment if he failed to do so. | The present court cited this decision to support the proposition that parties may freely agree to terms in compromise and that a consent decree agreeing to vacate is enforceable notwithstanding the protective statute; the Assam Bench decision strengthened the court's view that consent decrees are not defeated by the statute. |
Court's Reasoning and Analysis
The court proceeded in two main analytical steps.
First, it addressed the preliminary statutory question of what counts as "the date of commencement of this Act" in Section 14 of the U.P. (Temporary) Control of Rent and Eviction Act III of 1947. The Act received gubernatorial consent on February 28, 1947 and was published on March 1, 1947; however Section 1(3) of the Act provides that "it shall be deemed to have come into force on the 1st day of October, 1946." The judge reasoned that when a statute is expressly made retrospective to a specified date, that retrospective date must be taken as the date on which the Act is to be regarded as commencing for all practical purposes. To treat the Act as commencing on a later date (e.g., publication) despite an express deeming provision would produce an anomalous and contradictory position — it would be to say the Act came into force on a particular earlier date and yet commenced later. The court therefore accepted the view that the Act's commencement is the date fixed by Section 1(3) (1st October, 1946).
Having adopted that construction, the court held that the consent decree dated January 2, 1947 was passed after (and not before) the date of commencement of the Act, and consequently Section 14 — which preserves existing decrees passed before the date of commencement from execution while the Act remains in force except on grounds in Section 3 — had no application to the decree in question.
Second, the court considered the alternate path relied upon by the lower appellate court: whether Clause (a) of Section 3 (wilful failure to pay arrears within one month of service of a demand notice) provided a ground for ejectment even if Section 14 were applicable. Clause (a) requires that a notice demanding rent be served and that the tenant wilfully fail to pay the arrears within one month thereafter.
The court observed that the August 25, 1947 notice (demanding Rs. 91) and the appellant's subsequent failure to pay could not ground Section 3(a) because both dates were subsequent to the suit (filed September 17, 1945) and therefore could not supply the pre-suit facts that Clause (a) prescribes. However, the court identified an earlier demand notice (dated July 17, 1945), pleaded in the plaint and admitted by the defendant, which remained unpaid. More than one month elapsed after that notice before the suit was filed. The court concluded that the July 17, 1945 notice and the defendant's failure to respond provided the precise factual foundation required by Clause (a) of Section 3, so that the plaintiff was entitled to relief under that provision.
Finally, the court examined the specific contention that a consent decree should be treated differently under the statute. The court rejected the idea that the statute restricted the parties' freedom to agree to terms in compromise; it relied on the Assam Bench decision (Satish Chandra Roy Chaudhry v. Bimalendu Sen) to support the proposition that a tenant may contract out of the statutory privileges and agree to vacate by a specified date, and the landlord may enforce that promise by claiming ejectment if the tenant defaults.
Holding and Implications
Holding: The appeal is dismissed and the decree of the lower appellate court is upheld. The court ordered dismissal of the appeal with costs and granted leave to appeal to a Bench.
Implications (as discussed in the opinion):
- The court's construction of the U.P. (Temporary) Control of Rent and Eviction Act III of 1947 treats the date specified in Section 1(3) (1st October, 1946) as the Act's date of commencement for the purposes of Section 14; consequently a decree passed on January 2, 1947 was not a decree passed "before the date of commencement" and Section 14 did not bar its execution.
- Independently, the plaintiff had an available ground for ejectment under Clause (a) of Section 3 because a pre-suit demand notice dated July 17, 1945 had been admitted and remained unpaid for more than one month before the suit was instituted.
- The court affirmed the principle that parties may agree to terms in a compromise (including an agreement by a tenant to vacate by a given date) and that nothing in the statute prevents enforcement of such consensual terms; the court relied on a prior Bench decision from the Assam High Court to support this point.
- Direct practical effect: the judgment-debtor (appellant) is liable to be ejected under the decree, and the decree-holder's right to execute the decree is sustained by this court.
This summary is drawn exclusively from the text of the provided opinion and does not add facts or inferences beyond what the opinion states.
Mushtaq Ahmad, J.:— This is a judgment-debtor's appeal. The suit in which the decree in execution was passed had been filed on September 17, 1945, for ejectment and arrears of rent at Rs. 3-8-0 per mensem from June 30, to September 9, 1945. The decree in the suit was passed with the consent of the parties on January 2, 1947. It provided that the judgment-debtor appellant would vacate the house by August 1, 1947, and that, if he did not do so, the decree-holder respondent would be entitled to execute the decree for ejectment. The decree-holder's right to execute the decree after this date was not subject to any condition whatsoever, inasmuch as he could claim the defendant's ejectment after that date without any restrictions. As regards the rent payable to the plaintiff-decree-holder it was agreed that the defendant was entitled to deduct the amount spent by him on repairs, that the said amount would be determined by one Mr. Raghubar Sahai Raizada, counsel appearing for the plaintiff in the case and, lastly, that, if the amount so determined exceeded the arrears due to the plaintiff, the excess would be set off against future rent, but that, if it was less, it would proportionately reduce those arrears. Admittedly, no ascertainment of the amount spent by the defendant on repairs was made by Mr. Raghubar Sahai Raizada. The lower appellate court remarked in its judgment that the plaintiff had filed several applications alleging that her counsel had made various attempts to go to the house in order to estimate the amount spent on repairs but that for some reason or other the defendant evaded the matter. This would at least show that Mr. Raghubar Sahai was not able to ascertain the amount entirely on account of the dilatory tactics of the defendant.
2. On August 5, 1947, the decree-holder respondent applied for the execution of the decree for ejectment. Objections were taken to this application on the ground that, under Section 14 of the U.P (Temporary) Control of Rent and Eviction Act III of 1947, no ejectment could be ordered. A few days later, on August 25, 1947, the respondent gave a notice to the appellant, demanding Rs. 91 as rent from June 30, 1945 to August 30, (obviously meaning 31) 1947. On September 15, 1947 the appellant sent to the respondent a money order for Rs. 28, which the latter refused to accept.
3. Obviously the decree-holder claimed the respondent's ejectment by his application of August 5, 1947, referred to above, on the strength of the consent decree of January 2, 1947. After he had served on the respondent the notice of August 25, 1947, just mentioned, he claimed the respondent's ejectment also on the ground that the latter had been guilty of wilful default within the meaning of Clause (a) of Section 3 of the aforesaid Act.
4. The objections filed by the appellant were allowed by the execution court but dismissed by the lower appellate Court in appeal.
5. The main point argued by the learned counsel for the appellant was that he could not be ejected in view of the provisions of Section 14 of the said Act. This section enacts:
No decree for the eviction of a tenant from any accommodation passed before the date of commencement of this Act shall, in so far as it relates to the eviction of such tenant, be executed against him as long as this Act remains in force, except on any of the grounds mentioned in Section 3.
6. The section would apply only if the decree for ejectment was passed “before the date of commencement of this Act.” The decree in this case, as already noted, had been passed on January 2, 1947. The Act in question received the consent of the Governor on February 28, 1947 and was published in the official gazette on March 1, 1947. Section 1(3) of the Act provides;
it shall be deemed to have come into force on the 1st day of October, 1946.
7. The question arises: what is the date which can be said to be “the date of commencement of this Act,” that is, was this date the 28th February, 1947 or the 1st October, 1946? This date, 1st October, 1946, being the date on which, according to Section 1(3), the Act is to be deemed to have come into force is for all intents and purposes the date on which the Act must be regarded as having commenced. Once the operation of a statute is made retrospective so as to take effect from a particular date, it must, in my opinion, be taken that the Act was actually passed on that day, no matter if in point of fact it came into existence on a subsequent date, as in the present case. I would find it difficult to hold that, when a certain legislative measure is made expressly retrospective as from a specified date, it should still be imagined that the same really began on a later date. Any other view would involve the anomaly that, although the Act is made retrospective so as to take effect from a prior date, it should be regarded as having commenced on a later date, as in that case it would have to be taken that for the intervening period the Act was actually in abeyance. Such a position may not be easily intelligible, for to say that the Act came into force on a particular date and yet it should be taken to have commenced on a later date is really to suggest a contradiction of ideas.
8. My attention has been called to two single Judge decisions of this Court bearing on this point but deciding it altogether divergently. One was the case of Abhilak Ram v. Uma Shanker 1950 A.L.J 817. and the other that of Sahabuddin…Judgment-Debtor-Appellant; v. Mohan Lal…Decree-Bolder-Respondent. Lal.2 In the former Bind Basni Prasad, J. had held that the “date of commencement of this Act” in Section 14 meant the date on which the Act was published, that is, the 1st March, 1947. On the other-hand, in the latter case, the Hon the Chief Justice took the view that the date of commencement was really the date on which the Act had come into force under Section 1(3) of the Act, namely the 1st October, 1946. I am positively inclined to the latter view. The result of this would be that the decree in the present case which was passed on January 2, 1947 would be deemed to have been passed after and not before the date of the commencement of the Act. As such, obviously Section 14 would have no application.
9. The lower appellate court did not pay any independent consideration to this question of the applicability or otherwise of Section 14, but, assuming the section to be applicable, proceeded to examine whether there was sufficient ground under Clause (a) of Section 3 of the Act for the appellant's ejectment, and it answered the question in the affirmative. I shall examine this question now.
10. Paragraph 2 of the plaint mentioned that the plaintiff had sent a notice to the defendant asking for arrears of rent on July 17, 1945. This allegation was admitted by the defendant in Paragraph 3 of his written statement. It is common ground that no rent was ever paid by the defendant to the plaintiff after the date of this notice except that he sent a money order for Rs. 28, as already mentioned, on September, 15, 1947. Later, as also mentioned, the plaintiff sent a notice to the defendant on August 25, 1947 demanding Rs. 91 in response to which the money order just mentioned was sent, though refused. The lower appellate Court, while examining this question did not specifically refer to the precise date of the notice which it took into consideration for the purpose of Clause (a) of Section 3, but there can be no doubt that the learned Civil Judge had in his mind the later notice of August 25, 1947, because the amount of Rs. 91 mentioned by him as the sum demanded had been demanded only by this notice. Now Section 3(a) reads:—
No suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of following grounds:
(a) that the tenant has wilfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from the landlord.
11. The notice of August 25, 1947, which the learned Civil Judge had in his mind obviously did not satisfy the conditions mentioned in the above quotation. These conditions are that, even prior to the filing of the suit, certain things should have taken place, namely, the demanding of the rent by notice and the wilful failure of the tenant to pay it at least for a month after the date of service of the notice upon him. In the present case, the notice of August 25, 1947, which alone the lower appellate court was thinking of and the appellant's failure to pay the amount demanded thereby, both were of dates subsequent to the filing of the suit on September 17, 1945. Therefore, on the basis of this notice and this failure it could not be said that Clause (a) of Section 3 had come into operation and that the plaintiff was entitled by the force of it to a decree for ejectment. The position, however, does not stop here, as would be clear from what follows.
12. On July 17, 1945, as I have above mentioned, the plaintiff had sent his first notice demanding arrears to the defendant. This notice was admitted in defence. Nothing was ever paid in pursuance of it. The suit was filed after the date of this notice and also after the lapse of more than one month from the date of its service. It is this notice and the defendant's failure to respond to it that in fact supply the grounds mentioned in Clause (a) of Section 3, on the basis of which, the plaintiff could claim the defendant's ejectment. The result, therefore, is that, both because Section 14 of the Act is not applicable at all and also because, assuming it is, the defendant is liable to be ejected under Clause (a) of Section 3 of the Act, the order under appeal must be upheld.
13. It was argued by the learned counsel for the decree-holder respondent that the judgment-debtor's contention on the basis of Section 14 is further untenable because it would have no application to a consent decree. That is to say, he stressed that, where the defendant, being presumably aware of his rights, had agreed to vacate the premises by a certain date but failed to do so, the plaintiff was entitled to eject him irrespective of any prohibitive conditions enjoined by this particular Act. Divergence is found on this point also in the two cases referred to above, and here again I am inclined to the view taken in the later decision. In my opinion, there is nothing in law to restrict the freedom of a party to agree to any terms in a compromise to be filed in a pending suit, and this position is in no way controlled or modified by anything in the statute. I am further supported in this view by a Bench decision of the Assam High Court in Satish Chandra Roy Chaudhry v. Bimalendu Sen A.I.R 1951 Assam 27. where the question arose under the Assam Urban Area Rent Control Act of 1949 and it was held that there was nothing in that Act which prevented the tenant from contracting himself out of the privileges allowed to him by Section 6 of the Act. It was held that, in spite of that section, it was open to the tenant to agree to vacate the premises leased by a certain date, the landlord being entitled to claim his ejectment in case he failed to do so.
14. For these reasons I uphold the decree of the lower appellate court and dismiss this appeal with costs. Leave to appeal to a Bench is granted.
15. Appeal dismissed.
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