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Prahhashanker v. Smt. Rukmani
Concise Analytical Summary of the Opinion
Factual and Procedural Background
This second appeal arose from a suit originally filed on 11-10-1971 by Kanhaiyalal (who died during trial) and his brother Vasudeo seeking ejectment of a tenant (the present appellant). At the time of institution, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 ("the Act") was in force. Both trial and first appellate courts found that the landlords required the premises bona fide and reasonably for their own occupation (and for family members) and therefore decreed ejectment. The tenant appealed to the Court by way of a second appeal.
While the second appeal was pending, the Act was amended by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975 (Ordinance No. 26 of 1975), which came into effect on 29-9-1975. The amendment altered section 14 by adding a comparative-hardship requirement (new sub-section (2)) and added sub-section (3) imposing a five-year bar on suits for eviction of premises let for commercial/business purposes.
Legal Issues Presented
- Whether section 14(2) of the Act as amended by the Amendment Ordinance of 1975 applies to suits under section 13(1)(h) that were instituted before 29-9-1975 and were pending disposal before the trial court at the time of commencement of the amendment.
- Whether the amended section 14(2) applies to appeals pending on 29-9-1975 that challenge decrees passed before that date (i.e., whether an appellate court may apply the amendment in a pending appeal).
- Whether the amended section 14(2) applies to execution proceedings pending in executing courts in respect of decrees for eviction already passed under section 13(1)(h) prior to the amendment.
Arguments of the Parties
Tenant-Appellant's Arguments
- The tenant contended that pending litigation must be decided according to the law existing at the time of final decision; an appeal is, in effect, a continuation or rehearing of the suit, so the appellate court may take into account legislative changes (i.e., the 1975 amendment) that occurred since the lower-court decision.
- Relying on section 14(2) as amended, the tenant argued that the decrees of the lower courts should be set aside because comparative-hardship was not considered before ordering eviction.
Landlords' Arguments
- The landlords argued that the amendment does not take away rights or privileges acquired under the earlier enactment; pending proceedings should be decided according to the law in force when actions were commenced.
- They emphasized the general presumption that statutes are prospective (unless clearly intended otherwise) and asserted that vested rights to evict should not be impaired retrospectively unless the legislature clearly intended such effect.
Additional Procedural Note
- Both sides (and interveners) cited numerous authorities before the Court in support of their positions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mst. Rafiquennessa v. Lal Bahadur Chetri | Principles on retrospective operation of statutes: a statute is not to be construed to have retrospective effect unless the language clearly indicates such intention; retrospective operation should not impair vested rights except where unavoidable by the language of the enactment. | The Court relied on this authority to state and apply the settled rules of statutory interpretation regarding retrospectivity and protection of vested rights when considering whether the 1975 amendment to section 14 should apply to pending proceedings. |
Court's Reasoning and Analysis
The Court's analysis proceeded in distinct steps grounded in the text of the Act, the amendment, and established principles of statutory interpretation:
- Clarification of relevant statutory provisions:
- Section 13(1)(h) (unchanged by the Amendment) prohibits eviction where the tenant is ready and willing to pay rent unless the court is satisfied the premises are reasonably and bona fide required by the landlord for personal/family use (or other enumerated purposes). That sub-section already contained protection reaching back to execution proceedings pending at the commencement of the Act.
- Section 14(2) pre-amendment required the court, before passing a decree for eviction on the ground of clause (h), to be satisfied that it was reasonable to allow eviction after considering facts and circumstances.
- The Amendment Ordinance (1975) renumbered and expanded section 14: the prior sub-section (2) became (1); the new sub-section (2) added an express comparative-hardship test (no decree shall be passed if passing it would cause greater hardship than refusing it) and permitted partial decrees where no hardship would be caused by partial eviction; sub-section (3) imposed a five-year bar for commercial/business tenancies.
- Application of the principles of retrospectivity:
- The Court reviewed settled rules (as exemplified in Mst. Rafiquennessa) that statutes do not operate retrospectively unless the legislature's intention is clear and unambiguous, and that retrospective effect should not impair vested rights unless unavoidable from the language.
- Specific reasons why amended section 14(2) should be applied to pending suits and appeals:
- Because section 13(1)(h) itself is framed to operate retrospectively (it even protects tenants against whom execution proceedings were pending when the Act commenced), the Court viewed the amended section 14(2) as "intimately connected" with clause (h) of section 13(1) and therefore suitable for retrospective application.
- The precise wording of the amended section 14(2) — using the phrase "No decree for eviction ... shall be passed" — was taken as a strong, unmistakable indication of legislative intention that the prohibition apply to the passing of decrees generally, including in pending proceedings and appeals. The Court contrasted this with the language of new sub-section (3) (which uses "no suit for eviction ... shall lie"), observing that sub-section (3) was expressed to operate prospectively (i.e., it bars future suits for five years) while sub-section (2)'s language supports retrospective application.
- The Court therefore concluded that amended section 14(2) must be applied in pending suits and pending appeals that are based on clause (h) of section 13(1), because it governs whether a decree may be passed.
- Limitation as to execution proceedings:
- The Court analyzed the scope of the phrase "no decree for eviction ... shall be passed" and concluded that amended section 14(2) affects the passing of decrees; it does not disturb execution proceedings in which decrees have already been passed prior to the amendment. Accordingly, execution proceedings already underway in executing courts pursuant to decrees passed before the amendment are not affected by the new sub-section (2).
- Practical consequence for the present case:
- Since none of the courts below had considered the comparative-hardship requirement introduced by amended section 14(2), the Court found it necessary to remand the matter to the trial court to frame an appropriate issue addressing comparative hardship and decide the matter on merits in light of the amendment.
Holding and Implications
Holding: The Court allowed the appeal, set aside the decrees of the courts below, and remanded the case to the trial court for framing an appropriate issue on comparative hardship under section 14(2) as amended by the Amendment Ordinance of 1975. Leave to appeal to a Division Bench was granted to the respondents.
Implications for the parties and proceedings:
- The amended section 14(2) (comparative-hardship requirement) applies to pending suits and pending appeals founded on clause (h) of section 13(1) even when instituted before 29-9-1975, and courts must examine comparative hardship before passing a decree for eviction in such matters.
- The amended section 14(2) does not affect execution proceedings where a decree for eviction under section 13(1)(h) had already been passed prior to the amendment; those execution proceedings remain governed by the pre-amendment law.
- For the present parties, the lower courts' decrees were set aside and the matter remanded to trial court to be decided on the issue of comparative hardship; costs incurred to date shall abide the result.
Broader implications: The opinion does not elaborate broader doctrinal changes beyond the direct effects stated above; its disposition is focused on application of the amendment to pending suits and appeals and on remitting the matter for consideration of comparative hardship.
Modi, J.:— This second appeal arises out of a suit filed by Kanhaiyalal (since deceased) and his brother Vasudeo to eject the tenant defendant, who is appellant in this appeal.
2. The suit was filed on 11-10-71 when the provisions of the Rajasthan Pre-mises (Control of Rent and Eviction) Act, 1950, were in force. Both the lower courts took the view that the landlords required the demised premises bona fide and reasonably for their own occupation and for the occupation of their family members. The courts below therefore decreed the suit for ejectment in favour of Vasudeo and the legal representatives of Kanhaiyalal who died during the pendency of the suit in trial court. The tenant has preferred this second appeal. During the pendency of the second appeal in the Court, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as the Act, was amended by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975 (Ordinance No. 26 of 1975), hereinafter called as the Amendment Ordinance of 1975, on 29-9-75.
3. It is contended on behalf of the tenant-appellant that in view of sec. 14(2) of the Act as amended by the Amendment Ordinance of 1975, the decree passed by the two lower courts was not proper and the same may be set aside.
4. Sec. 13(1)(h) of the Act which has not been amended by the Amendment Ordinance of 1975 runs as under—
“Sec. 13—Eviction of tenant.—
(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied—
(a) to (g) xx xx xx
(h) that the premises are required reasonbly and bonifies by the landlord—
(i) for the use or occupation of himself or his family, or
(ii) for the use or occupation of any person for whose benefit the premises are held,
(iii) for a public purpose, or
(iv) for a philanthropic use:”
Sec. 14 of the Act as it stood before the Amendment Ordinance of 1975 ran as under:—
“Sec. 14—Restriction on eviction—
(1) xx xx
(2) No decree for eviction on the ground set forth in clause (h) of sub-sec. (1) of sec. 13 shall be passed unless the Court is satisfied, after taking all the facts and circumstances into consideration, that it is reasonable to allow such eviction.”
Sec. 10 of the Amendment Ordinance of 1975 has amended sec. 14 of the Act. It provides that the existing sub-section (2) shall be renumbered as sub-sec. (1) thereof and after sub-sec. (1) as so re-numbered, the following sub-sections shall be added, namely:—
“(2) No decree for eviction on the ground set-forth in clause (h) of sub-sec. (1) of sec. 13 shall be passed if the court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shell pass the decree in respect of such part only.
(3) Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set-forth in clause (h) of sub-section (1) of sec. 13 before the expiry of five years from the date the premises were let out to the tenant.”
A perusal of the above section would reveal that the effect of the amendment is that while previously if a landlord required the demised premises reasonably and bonafide for the use and occupation of himself or his family, he could obtain a decree for eviction of a tenant but after the amendment the court will have to further examine the question of comparative hardship of the landlord and tenant before passing a decree for eviction against the tenant.
5. There can be no doubt that the provisions of the Act as amended by the Amendment Ordinance of 1975 shall apply to the suits instituted by a landlord after the commencement of the Amendment Ordinance of 1975, that is, after 29-9-75. But the question that arises for consideration is whether the amended provisions of the Act shall also apply to pending proceedings which may fall under any of the following categories—
(1) A suit presented by a landlord under sec. 13(1)(h) of the Act before 29.9.75 that is, before the commencement of the Amendment Ordinance of 1975 and pending disposal before the trial court.
(2) An appeal questioning the validity of a decree passed by the trial court or the first appellate court in a suit based on the ground under sec. 13(1)(h) of the Act pending decision from before 29.9.75
(3) An execution proceeding pending in the executing court in respect of the decree for eviction passed under sec. 13(1)(h) of the Act prior to the amendment, that is, 29-8-75.
6. The tenant's case is that a pending litigation is always to be decided according to the law existing at the time of its final decision and an appeal being in the nature of rehearing of the case or continuation of the suit, the appellate court is also competent to take into account the legislative changes made since the decision under appeal was given and its powers are not confined only to see whether the lower court's decision was correct according to the law as it stood when the decision was given.
7. On behalf of the landlords, it is contended that the new legislation does not take away the rights and privileges acquired by the landlord under the earlier enactment and therefore the pending proceeding ought to be decided according to the law in force at the time the actions were commenced. According to the landlords, they had acquired the right to evict their tenants and this right had not been expressly or by necessary implication taken away by the new legislation. It is emphasised that a statute unless it be a statute dealing with the procedural matter only, should be presumed to be prospective and construed having no retrospective operation.
8. The learned counsel on both the sides as also the interveners cited a large number of authorities before me in support of their respective contentions. From the authorities cited before me, it follows that it is a well settled rule of interpretation of statutes that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary or distinct implication. It appears further well established that a retrospective operation is not to be given to a statute so as to impair the existing right or obligation otherwise than as regards the matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. It is thus clear that unless a clear and unambiguous intention is indicated by the Legislature by adopting suitable express words in that behalf, no provision of a statute should be given retrospective operation if by such operation vested rights are likely to be affected. In the words of their Lordships of the Supreme Court in Mst. Rafiquennessa v. Lal Bahadur Chetri (1), the aforesaid principles are unexceptionable and as a matter of law no objection can be taken to them.
9. Bearing in mind, the above principles, let us examine sec. 14(2) of the Act as amended by the Amendment Ordinance of 1975. Before doing so, it is necessary to consider sec. 13(1)(h) of the Act which has already been reproduced earlier. Sec. 13(1)(h) provides that no court shall pass any decree or make any order in favour of a landlord whether in execution of a decree or otherwise evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act unless the court is satisfied that the premises are required reasonably and bonafide by the landlord for the use and occupation of himself and his family. This section prohibits a court from passing a decree or make an order in execution of a decree or otherwise evicting the tenant if such decree or order directs eviction of the tenant on a ground other than the ground mentioned in sec. 13(1) of the Act. As already pointed out above, this sub-section has not been amended in any way by the Amendment Ordinance of 1975. But sec. 13(1) of the Act clearly indicates the intention of the Legislature that its provisions are retrospective. This sub-section provides protection even to those tenants against whom execution proceedings were pending at the time of the commencement of the Act. The Amendment Ordinance of 1975 by enacting sec. 14(2) has provided a further rider to clause (h) of sec. 13(1). Sec. 14(2) as amended by the Amendment Ordinance of 1975 provided that the court shall not pass a decree for eviction against the tenant unless it is satisfied as to comparative hardship to be caused to the landlord and tenant by passing the decree than by refusing it. The new amended sec. 14(2) being intimately connected with sec. 13(1)(h) of the Act should also, in my opinion, receive retrospective operation. This is one aspect of the case.
10. There is yet another aspect of the case. The words “no decree for eviction ………shall be passed” used in sec. 14(2) are clearly suggestive of unmistakable indication of the legislative intention to make this sub-section retrospective, the reason being that it prohibits the passing of a decree for eviction on the ground mentioned in sec. 13(1)(h) unless the question of comparative hardship has been examined by the court. In other words, sec. 14(2) as amended by the Amendment Ordinance of 1975 must inevitably come into play for the benefit of the tenant in the pending suits as also in the pending appeals since it is well settled that an appeal is a continuation of the suit. If the legislature had intended that the provisions of sec. 14(2) should operate prospectively, it would not have used the words “no decree………shall be passed”, but instead used the language “no suit for eviction…………shall be passed against the tenant” as used in sub-sec. (3) of sec. 14 of the Act as amended by the Amendment Ordinance of 1975. I am, therefore, of the opinion that no prospective operation to sec. 14(2) can be given without doing violence to its language. I, therefore, hold that the provisions of sec. 14(2) as amended by the Amendment Ordinance of 1975 and pending suits and also pending appeals based on the ground under sec. 13(1)(h) have retrospective effect and would be governed by sec. 14(2) of the Act as amended by the Amendment Ordinance of 1975. Since sec. 14(2) prohibits only passing of a decree for eviction, the provisions of sec. 14(2) as amended by the Amendment Ordinance of 1975 shall have no effect to execution proceedings pending in the executing courts wherein the decrees have been passed against the tenants on the ground under sec. 13(1)(h) of the Act.
11. It is common ground between the parties that none of the courts below has gone into the question of comparative hardship as envisaged under Sec. 14(2) of the Act as amended by the Amendment Ordinance of 1975. The case will have to be remanded to the trial court for framing an appropriate issue in the light of the amendment and disposing it of on merits in accordance with law.
12. In the result, the appeal is allowed, the decrees of the courts below are set aside and the case is remanded back to the trial court as indicated above. The costs hitherto incurred by the parties shall abide the result.
13. The learned counsel for the respondents prays for leave to appeal to a Division Bench which is granted.
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