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L. Kedar Nath v. L. Kishan Lal
Structured Summary of the Opinion (Division Bench: Bind Basni Prasad, J. and Gurtu, J.)
Factual and Procedural Background
On 29 November 1946 the plaintiff instituted a suit in the Munsif Court of Amroha seeking ejectment of the defendant from a shop in the Notified Area of Hasanpur and recovery of Rs. 13 as arrears of four months' rent. The defendant admitted tenancy but contested the suit on the grounds that the notice of ejectment was invalid and that the suit was barred by U.P. Ordinance No. 3 of 1946 and by the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (the Act). The learned Munsif and the learned Civil Judge (first appellate court) both decreed the suit. The defendant filed a second appeal in this Court (filed 19 September 1947). During the pendency of the second appeal the provisions of the Act were applied to the Notified Area of Hasanpur on 26 September 1947. The single point argued before the Division Bench was whether the application of the Act to Hasanpur during the pendency of the second appeal entitled the defendant-appellant to the benefit of Section 15 of the Act, thereby preventing a decree for ejectment unless one or more of the grounds in Section 3 were made out. The court set out the chronological milestones relevant to the question (suit instituted 29.11.1946; Act received assent 28.2.1947; published 1.3.1947; trial decree 12.5.1947; appellate dismissal 7.8.1947; Act applied to Hasanpur 26.9.1947).
Legal Issues Presented
- Whether the word "suit" in Section 15 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 includes appeals (i.e., whether suits pending on commencement include appeals pending on that date).
- Whether the expression "the date of the commencement of this Act" in Section 15 (and related provisions) means (a) the date specified in Section 1(3) of the Act (a deemed retrospective date) or (b) the date when the Act is applied to a particular area by notification (i.e., whether, for Hasanpur, the commencement date is 26 September 1947).
- Given the answers to the above, whether the defendant-appellant is entitled to the benefits of Section 15 (and therefore whether the decree for ejectment must be set aside and the suit remanded to permit amendment and further proceedings consistent with the Act).
Arguments of the Parties
Plaintiff
- The plaint sought ejectment of the defendant from the shop and recovery of rent arrears (Rs. 13). (No detailed additional plaintiff argumentation is recorded in the opinion.)
Defendant (Appellant)
- Admitted tenancy but contended that the notice of ejectment was invalid.
- Contended that the suit was barred by U.P. Ordinance No. 3 of 1946 and by the U.P. (Temporary) Control of Rent and Eviction Act, 1947.
- Specifically, after the Act was applied to Hasanpur during the pendency of the second appeal, the defendant argued that Section 15 barred a decree for eviction unless one of the grounds in Section 3 was made out; consequently, the defendant sought the benefits of Section 15.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court in this Opinion |
|---|---|---|
| Lala Raj Narain v. Sita Ram Sri Kishen Das (decided 3 Nov 1949) | Held that the word "suit" in Section 15 was intended to apply not only to suits pending in the trial court but also to a suit in its later stages right up to the court of final appeal (i.e., "suits" includes appeals). | The Division Bench follows this holding and treats "suits" as including appeals for the purposes of Section 15. |
| Niranjan Lal Bhargava v. Ram Kali Devi (decided 19 Dec 1949) | Also held that the word "suit" in Section 15 includes an appeal; case remanded to trial court with directions to permit amendment of the plaint and allow supplementary written statement and fresh evidence. | The Division Bench relies on this decision (and follows its procedure) in ordering remand to permit amendment of pleadings and further evidence in light of the Act's application to Hasanpur. |
| Rup Lal v. Ram Swarup (decided 21 Mar 1950) | Held that the expression "the date of the commencement of the Act" in Section 15 means the date mentioned in Section 1(3) of the Act (deemed date of commencement: 1 Oct 1946) and not the date when the Act is applied to a particular area; concluded Section 15 had no application where the Act was applied to an area during pendency. | The Division Bench explicitly dissents from this view. It critiques the Rup Lal reasoning and declines to follow its distinction between date of commencement and date of application to a particular area. |
| Harswarup v. Lokeshwar Pd (1951 A.L.J. 256) | Noted as following the Niranjan Lal Bhargava approach (i.e., treating "suit" as including appeals and permitting remand for amendment). | The Division Bench records that Harswarup followed Niranjan Lal Bhargava and treats that line of authority as supportive of allowing appeals to be treated as suits under Section 15. |
| Abhilakh Ram v. Uma Shankar (12 Apr 1950; 1950 A.L.J. 817) | Considered the meaning of "commencement"; discussed distinction between "come into operation" (publish/operation date) and "deemed to have come into force" (retrospective date). In that case the judge held that the words "the date of the commencement of this Act" occurring in Section 15 meant 1 March 1947 (date of publication in the Gazette), based on the General Clauses Act and related reasoning. | The Division Bench discusses this reasoning at length but reaches a different conclusion for the context of application to a particular area: it holds that for a particular area the date of commencement is the date the Act is applied to that area. |
| L. Ganga Prasad v. Mst. Saroop Dei (20 Dec 1950; 1952 A.L.J. 111) | Relied upon Rup Lal and held that Section 15 did not apply where the Act was applied to the area during the pendency of the appeal (i.e., followed the Rup Lal view). | The Division Bench notes that L. Ganga Prasad relied on Rup Lal; the present court, however, rejects that line of reasoning and does not follow L. Ganga Prasad on the point. |
| Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhur (1940 F.C.R. 84) | Held that in exercising appellate jurisdiction a court has power not only to correct error but to make such disposition as justice requires and must consider any change in fact or law which has supervened since the judgment under review. | The Division Bench cites this principle to justify taking into account the supervening change in law (application of the Act to Hasanpur) and to support remanding the matter with directions appropriate to justice. |
Court's Reasoning and Analysis
The court's analysis proceeds in logical steps grounded in the chronology and textual interpretation of Section 15 of the Act:
- Chronology and immediate legal consequence: The court observed that when the trial court and the lower appellate court passed their decrees the Act had not been applied to Hasanpur; thus those courts correctly did not allow the defendant the benefit of the Act at that time.
- Central interpretive question: The court framed two related interpretive issues—(a) whether "suit" in Section 15 includes appeals, and (b) whether "the date of the commencement of this Act" should be read, for a particular notified area, as the date when the Act was applied to that area by notification.
- Precedent analysis on "suit" including appeals: The court reviewed the relevant authorities and concluded, following the Division Bench decisions in Lala Raj Narain v. Sita Ram Sri Kishen Das and Niranjan Lal Bhargava v. Ram Kali Devi, that "suit" in Section 15 does include appeals; i.e., suits pending at appellate stages are within the scope of Section 15.
- Precedent analysis on "date of commencement": The court examined Rup Lal v. Ram Swarup, which had taken the view that "commencement" meant the date in Section 1(3) (a deemed retrospective date) and not the date when the Act is applied to a particular area. The court expressly dissented from this distinction, explaining that for a particular area the Act did not exist prior to its application there; when the Act is applied to an area it "takes its birth" in that area and thus the date of application is the date of commencement for that area.
- Statutory and definitional support: The court relied on the General Clauses Act definition of "commencement" (sub-section (10) of Section 4) and the text of the Act (including Section 1(3) and the notification power under sub-section (2-A) of Section 1) to interpret "commencement" contextually. The court reasoned that the notion of commencement with respect to an area is the date on which the statute becomes operative in that area by notification.
- Application to the present facts: Because the Act was applied to the Notified Area of Hasanpur on 26 September 1947, and because "suit" includes appeals, Section 15 operated to bar a decree for eviction except on the grounds enumerated in Section 3. The lower courts' decrees, correct when made, were rendered ineffective by the supervening application of the Act during the pendency of the second appeal.
- Remedial consequences dictated by precedent and fairness: Citing the principle from Lachmeshwar Prasad Shukul that appellate courts must consider supervening changes of law, and following the approach in Niranjan Lal Bhargava (and related decisions) the Division Bench held it would be fair to permit the plaintiff to amend the plaint to plead one or more grounds under Section 3, allow the defendant to file a supplementary written statement, and permit such further evidence as is necessary. Accordingly the matter should be remanded to permit these steps.
Holding and Implications
Holding:
Appeal allowed; decree of the lower appellate court set aside and the case remanded to the trial court through the lower appellate court for re-admission and further proceedings.
Direct implications and practical consequences on the parties:
- Because the Act was applied to the Notified Area of Hasanpur on 26 September 1947 and because "suit" in Section 15 includes appeals, the defendant-appellant is entitled to the benefit of Section 15 of the Act.
- The plaintiff is to be given an opportunity to amend the plaint to plead one or more of the grounds specified in Section 3 of the Act (which are now prerequisite to obtaining an ejectment decree).
- The defendant-appellant is to be allowed to file a supplementary written statement in response to any such amendment.
- The parties are to be permitted to adduce such evidence as may be necessary in view of the amendments to the pleadings.
- Costs are to abide the event (i.e., no special costs order beyond that direction).
Broader doctrinal implications: The Division Bench rejects the contrary interpretation in Rup Lal v. Ram Swarup and holds for the purposes of this case that (a) "suits" in Section 15 includes appeals and (b) for a particular area to which the Act is applied by notification the "date of commencement" is the date of application to that area. The court applied established appellate principle (Lachmeshwar Prasad Shukul) that supervening changes in law relevant to the subject-matter must be considered in disposing of appeals.
Bind Basni Prasad, J.:— This second appeal has been referred to a Division Bench by a learned Single Judge as he could not reconcile the decision of a learned Single Judge in Rup Lal v. Ram Swarup 1950 A.L.J.R 345. and the Division Bench decisions in Niranjan Lal Bhargava v. Ram Kali Devi 1950 A.L.J.R 642. and Lala Raj Narain v. Sita Ram Sri Kishendas.3
2. The facts are simple. On the 29th November, 1946, the plaintiff brought a suit in the court of the Munsif of Amroha for the ejectment of the defendant from a shop situated in the Notified Area of Hansapur and for the recovery of Rs. 13/- as arrears of four months' rent. The defendant admitted the tenancy, but contested the claim on the ground that the notice of ejectment was invalid and that the suit was barred by the U.P Ordinance No. 3 of 1946 and by the U.P (Temporary) Control of Rent and Eviction Act, 1947 (Act III of 1947). The learned Munsif repelled these contentions. In an appeal by the defendant, learned Civil Judge upheld those findings. The suit was decreed by both the courts below. The defendant comes in appeal. The only point which has been argued before us is that the U.P (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter mentioned as “the Act”) was extended to the Notified Area of Hasanpur on the 26th September, 1947 and so the provisions or that Act now apply to the present suit and as no ground mentioned in Section 3 of that Act was made out so according to Section 15 no decree for ejectment could be passed. Before considering this question the following material dates should be kept in mind:
29.11.1946—This suit was instituted.
28.2.1947—The U.P (Temporary) Control of Rent and Eviction Act, 1947, received the assent of the Governor-General.
1.3.1947—The Act was published in the official Gazette.
12.5.1947—The trial court decreed the suit.
7.8.1947—The lower appellate court dismissed the defendant's appeal.
19.9.1947—Second Appeal filed in this Court.
26.9.1947—The provisions of the Act were applied to the Notified Area of Hasanpur.
3. It will be seen from the above chronology that when the two courts below passed their decrees, the Act did not apply to Hasanpur and so they were quite correct in not allowing the defendant the benefit of the provisions of the said Act. The question is how does the fact that the Act was applied to the Notified Area of Hasanpur during the pendency of the second appeal in this Court affect this case? Section 15 of the Act runs 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.”
4. The question is whether the defendant-appellant is entitled to the benefits of this section when the Act was applied to Hasanpur during the pendency of the second appeal. Six cases bearing upon this point have been placed before us. The first case is Lala Raj Narain v. Sita Ram Sri Kishen Das decided by Malik, C.J and Mushtaq Ahmad, J. on the 3rd November, 1949. It was held in that case “that the word ‘suit’ in Section 15 was intended to apply not only to suits pending in the trial court but also to a suit in its later stages right upto the court of final appeal.” That was a case which was instituted in December, 1943 and decided by the trial court in August, 1944 and by the first court of appeal in December, 1944. The second appeal was filed in this Court on the 4th May, 1945 and during the pendency of the appeal in this Court the U.P (Temporary) Control of Rent and Eviction Act, 1947, was passed. The question in that case was whether the benefits of the Act were available to the defendant.
5. The second case is that of Niranjan Lal Bhargava v. Ram Kali Devi decided on the 19th December, 1949 by Wanchoo and Seth JJ. In this case also it was held that the word ‘suit’ in Section 15 of the Act includes an appeal. The earlier case decided by Malik, C.J and Mushtaq Ahmad, J. was not brought to the notice of the Hon'ble Judges. An indentical question was involved in that case. When the suit was instituted the Act had not come into force. It was during the appellate stage that the Act came into force. Their Lordships allowing the appeal remanded the case to the trial court with the direction that the plaintiff should be permitted to amend her plaint and that the suit should be re-heard and decided after the plaint had been amended and the defendant had been given an opportunity to file a supplementary written statement and the parties had adduced such evidence as they desired to produce. This was followed by Malik C.J and Mustaq Ahmad, J. in Harswarup v. Lokeshwar Pd. 1951 A.L.J 256..
6. The fourth case is that of Rup Lal v. Ram Swarup decided on the 21st March, 1950 by Seth, J. It was held in that case that the expression “the date of the commencement of the Act” in Section 15 of the Act means the date mentioned in Section 1(3) of the Act and does not mean the date when the Act was applied to a particular area. In that case during the pendency of the appeal before the lower appellate court the provisions of the Act were extended to the Town Area of Chhibramau. The defendant contended that under Section 15 of the Act he could not be ejected. The learned Judge disposed of this contention by the following remarks:
“Learned counsel refers me to Section 15 of the Act in that connection, but Section 15 applies only to suits pending on the date of the commencement of the Act. The date of the commencement of the Act is mentioned in Section 1, sub-section (3) of the Act, which provides that the Act shall be deemed to have come into force on October 1, 1946. The date of the commencement of the Act is, therefore, October 1, 1946. I do not find it possible to interpret the expression “the date of the commencement of the Act” to mean the date when the Act is applied to a particular area. Section 15 also, therefore has no application to the present case.”
7. The appeal was dismissed by the learned Judge under Order 41 Rule 11, C.P.C The learned Judge has not given any reasons as to why he drew a distinction, with reference to a particular area, between the date of the commencement of the Act and the date on which the Act is applied to that area. The two earlier cases were not placed before him probably because they had not been reported till then.
8. The fifth case is Abhilakh Ram v. Uma Shankar 1950 A.L.J 817. decided by me on the 12th April, 1950. That was a case in which Section 14 and not section 15 of the Act came in for interpretation. Nevertheless, it is relevant because the expression “the date of commencement of this Act” occurs in both these sections. I pointed out that the word ‘commencement’ was defined in sub-section (10) of Section 4 of the U.P General Clauses Act, 1904 as follows:—
“Commencement used with reference to an Act shall mean the day on which the Act comes into force.” I drew a distinction between the expressions “the date on which an Act comes into force” and “the date on which it is deemed to have come into force.’ Under Sub-section (1) of Section 5 of the U.P General Clauses Act, 1904, the U.P (Temporary) Control of Rent and Eviction Act, 1947 came into operation on the day on which it was first published in the official gazette, viz., 1st March, 1947; but by virtue of sub-section (3) of Section 1 of the Act it should be deemed to have come into force on the 1st day of October, 1946. First the Act made by the Legislature which gives it a retrospective effect must be brought into operation and when this has been effected then by virtue of its provisions it can be given a retrospective effect. Sub-section (1) of Section 5 of the U.P General Clauses Act, 1904 provides that if any United Provinces Act is not expressed to come into operation on a particular day, then it shall come into operation if it is an Act of the Legislature, on the day on which the assent thereto of the Governor or the in General, as the case may require, is first to lished in the official gazette. The words in this section are “come into operation” whereas as the words used in sub-section (3) of section 1 of the U.P (Temporary) Control of Rent and Eviction Act, 1947 are “deemed have come into force.” I drew a distinction between these two expressions as it seemed to me that in the context in which the expression “come into operation” was used in section 5(1) of the U.P General Clauses Act, a future date for operation was meant. This is clear from the fact that the day of coming into operation of an Act has reference in this section to the day on which the assent of the prescribed authority to the Act is published in the official gazette. Such a date necessarily has to be a day subsequent to the passing of the Act by the Legislature Relying upon this reasoning it must be held that the words “the date of the commencement of this Act” occurring in Section 15 of the Act mean the 1st March, 1947 when the assent of the Governor-General was published in the official gazette.
9. The sixth case to which we were referred is L. Ganga Prasad…Defendant; v. Mst. Saroop Dei…Plaintiff. 1952 A.L.J 111. decided by Bhargava, J. on the 20th December, 1950. That was a case in respect of a shop situated in village Dhanora, Pargana Hasanpur, in the district of Moradabad and Act 3 of 1947 was applied to that area during the pendency of the appeal. Learned Judge relying upon Rup Lal v. Ram Swarup held that Section 15 of the Act did not apply. No further reasoning is given in the judgment.
10. I see no valid ground to make any distinction between “the date of the commencement of the Act” and “the date when the Act is applied to a particular area” as Seth, J. did in Rup Lal v. Ram Swarup. “With great respect I dissent from that view. Qua a particular area to which the Act is applied under sub-section (2-A) of Section 1 of the Act “the date of commencement of the Act” is the date on which it is so applied. Before the Act was applied to this area it was non-existant so far as that area was concerned. On the day it was applied the Act took its birth in that area and commenced in it. This is the meaning at which we arrive also by reference to sub-section (10) of Section 4 of the U.P General Clauses Act which provides:
“Commencement” with reference to an A behall mean the day on which the Act comes into force.”
11. The Act came into froce in the Notified of Hasanpur on the 26th September, 1947 it was applied to that area. Hence that the date of the commencement of the Act in relation to that area. I have discussed at some length the meaning of the expression “commencement of the Act” in Abhilakh Ram v. Uma Shankar.
12. In view of the Division Bench decisions in Niranjan Lal Bhargava v. Ram Kali Devi and Lala Raj Narain v. Sita Ram Sri Kishen Das we must hold that the word “suits” occurring in Section 15 of the Act includes also appeals. As a result of these two findings, viz. that the word “suits” includes appeals and the expression “commencement of the Act,” with reference to the Notified Area of Hasanpur, means the 26th September, 1947, when the Act was applied to it, it follows that the defendant-appellant is entitled to the benefit of Section 15 of the Act. The decrees passed by the to courts below were correct, but the situation has been altered on account of the application of the Act to this area during the pendency of the second appeal. In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhur 1940 F.C.R 84. which has been referred to in Niranjan Lal Bhargava v. Ram Kali Devi. It was held:
“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.”
13. At the time when the plaintiff brought the suit it was not necessary for him to set out that any of the grounds mentioned in Section 3 of the Act existed. It has become necessary now in view of the application of the Act to this area. It is, therefore, only fair that he should be given an opportunity to amend the plaint so as to show that one or more of the grounds mentioned in Section 3 of the Act existed. The defendant-appellant should be given an opportunity to file a supplementary written statement and the parties given a chance to adduce such evidence as may be necessary in view of the amendment in the pleadings.
14. For the reasons given above I would allow the appeal, set aside the decree of the lower appellate court and remand the case to the trial court through the lower appellate court to re-admit it at its original number and to proceed with it in the light of the observations made above. As regards the costs I would let them abide by the event.
15. Gurtu, J.:— I agree that we must take into consideration any change in law which has supervened since the judgments in this case were entered.
16. The U.P Act III of 1947 [U.P (Temporary) Control of Rent and Eviction Act, 1947] was made applicable to the Hasanpur Notified Area on the 26th of September, 1947 that is to say, on a date after the present second appeal was filed in this Court.
17. The effect of the Notification in the Official Gazette declaring that the Act was applied to Hasan Pur is that every part of the Act becomes applicable. Once the Act is applied, it must, by virtue of Section 1, sub-section (3), be deemed to have come into operation on the 1st day of October, 1946. That is a date which is prior to the 29th of November, 1946 on which date the suit, out of which this appeal arises, was instituted. Therefore, the position is that no decree for ejectment can now be passed on grounds other than those specified in Section 3 of the said Act.
18. When the plaint was filed, the pleader could not have known that the plaint would be hit by an Act which would have retrospective effect and, therefore, the plaint was not based on the restricted grounds which are available to a plaintiff under Section 3 of the aforesaid Act.
19. It would, therefore, be unfair to throw out the suit without giving the plaintiff a chance of amending his plaint and incorporating any of the grounds set out in Section 3 which may be available to him.
20. I can see no reason for distinguishing between a case where the Act becomes immediately applicable, by its own terms, to an area already specified and a case where it becomes applicable to an area by virtue of a subsequent Notification making it applicable. In either case, the Act does not come into operation only on the date on which it becomes applicable to the areas, but come into operation, by virtue of Section 1, sub-section (3), from a date anterior, namely, the 1st day of October, 1946. I do not appreciate the distinction sought to be made in this regard between a case where the area, in which it will come into force, is specified in the statute and the case where an area in which it will come into force is specified by means of a subsequent Notification made by an authority empowered to so notify by the Act itself. I do not agree that when the Act is applied to a particular area by means of a Notification published, it has any other effect than that it brings about the commencement of the Act, and makes it come into operation (from) the 1st day of October, 1946. I respectfully disagree with the view expressed in Rup Lal v. Ram Swamp. The date of the commencement of the Act in such a case also is the date on which the Act is applied to a particular area. The Act commences to be applicable on that date and by virtue of the retrospective clause, its operation becomes effective as from the 1st of October, 1946.
21. By the Court:— The appeal is allowed. The decree of the lower appellate court is set aside. The case is remanded to the trial court through the lower appellate court to re-admit it to its original number, to give the parties an opportunity to amend their pleadings in the light of the observations made in our judgments and to adduce such evidence as is necessary in view of the amendments in the pleadings. Costs shall abide by the event.
22. Appeal allowed.
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