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Kishanlal Sharma v. Prem Kishore .
Opinion Summary — Revision under Section 115 C.P.C. (Rajasthan Premises (Control of Rent and Eviction) Act, 1950)
Factual and Procedural Background
This revision petition under Section 115 C.P.C. challenged the appellate order dated 23 July 1981 of the Additional District Judge, Jaipur City, which affirmed the trial court order dated 12 December 1980. The trial court had dismissed the defendant's (petitioner before this Court) application dated 11 April 1980 for provisional determination of arrears of rent under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, as amended.
The underlying suit was filed by Prem Kishore (plaintiff/respondent in the revision) on 2 July 1975 for eviction of Kishanlal Sharma (defendant/petitioner) from residential premises. The plaintiff alleged that the defendant had been a tenant since June 1971, that the original landlord Mukat Behari Lal sold the premises to the plaintiff by sale deed dated 20 May 1974 (registered 17 June 1974), that the vendor had notified the defendant to attorn and pay rent to the plaintiff from 20 May 1974, and that the defendant defaulted in payment of rent for the period 1 September 1974 to 30 June 1975.
The defendant filed his written statement on 13 March 1976 admitting tenancy and the rent amounts (Rs.50, increased to Rs.58 from 1 February 1972) and admitting the sale deed but alleging that the sale was fictitious/benami. The first hearing occurred on 26 September 1975 when the defendant entered appearance and made an application under Section 10 C.P.C. for stay due to a prior suit. The defendant did not deposit or pay arrears on that first hearing date as required by Section 13(4) of the pre-amendment (old) Act.
The defendant later (11 April 1980) sought provisional determination of arrears under Section 13(3) of the Act as amended. The plaintiff had earlier applied (21 September 1979) to strike out the defence on the ground of non-compliance with Section 13(4) of the old Act and argued the suit was governed by the old Act because it was pending when the Amending Act came into force on 29 September 1975. The trial court dismissed the defendant's application (12 December 1980). The District Court dismissed the subsequent appeal (23 July 1981). The defendant filed this revision, which was referred to a larger Bench because of an apparent conflict in single-Bench decisions.
Legal Issues Presented
- Whether rights and liabilities in an eviction suit that was already pending when the Rajasthan Amending Act No. 14 of 1976 (effective 29 September 1975) came into force are governed by the provisions of the old Act (pre-amendment) or by the amended Act.
- Whether Section 13(3) of the amended Act (provisional determination of arrears) applies to suits that were pending when the amended Act came into force, or whether the special transitional provision Section 13A governs pending suits.
- Whether the provisions of Section 13(3) of the amended Act are procedural in nature (and therefore apply to pending suits) or whether they create substantive rights and obligations that cannot be applied retrospectively to pending suits.
Arguments of the Parties
Plaintiff's Arguments (Prem Kishore)
- The suit was filed on 2 July 1975 and was pending when the amended Act came into force on 29 September 1975; therefore it is governed by the provisions of the old Act (pre-amendment).
- The defendant failed to deposit or pay the amount required by sub-section (4) of Section 13 of the old Act on the first date of hearing, and thus exposed himself to the sanction of having his defence struck out.
- The defendant did not avail himself of the special transitional provision Section 13A of the amended Act within the prescribed period; therefore he cannot rely on Section 13(3) of the amended Act.
Defendant's Arguments (Kishanlal Sharma)
- The suit should be governed by Section 13(3) of the amended Act, which imposes a duty on the court to make a provisional determination of arrears of rent to be deposited or paid by the defendant.
- Until the court makes such a provisional determination under the amended Act, the defendant cannot be required to deposit or pay arrears; accordingly his defence cannot be struck out for non-deposit.
- In his written statement the defendant also alleged that the sale to the plaintiff was fictitious/benami (a factual plea relevant to the eviction claim).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Carona Sahu Co. Ltd. v. Vinod Kumar Goyal, AIR 1979 Raj 1 | Holds that the amended provisions apply to suits filed on or after the amending Ordinance; the legislature provided special transitional provision (Section 13A) for pending suits, and special provisions prevail over general ones. | The Court treated this decision as applying "on all fours" and used it as a primary authority to hold that pending suits are governed by the old Act and that Section 13A is the proper route for protection of tenants in pending suits. |
| Jagdish Prasad v. Firozi Bai, 1981 WLN 497 : (AIR 1982 NOC 94) | Discussed the effect of Section 6 of the Rajasthan General Clauses Act, 1955, on repeal and substitution; concluded that a suit pending at the time of repeal/ substitution continues as if the amended Act had not been passed. | The Court cited this decision to support the proposition that a suit pending at the time of substitution should be continued under the old law. |
| Kishanlal v. Kamla Devi Sharma, 1979 Raj LW 369 | Explains that the amended sub-section (3) of Section 13 applies only where no order was passed under earlier provisions; if an order was passed under pre-amendment provisions at first hearing, there is no requirement to pass a fresh order under the amended provisions. | The Court relied on this head-note to reinforce that the amended provisions do not displace prior orders or the applicability of the old Act to pending suits. |
| Hazarilal v. Radha Kishan, Civil Revision No. 307 of 1977 (decided 20 Nov 1978) | Holds that Section 13A of the Amending Act makes clear that Section 13(3) of the Amending Act does not apply to pending suits; a tenant in a pending suit must resort to Section 13A to save himself from default consequences. | The Court reproduced and relied on these observations and held that the cited case clearly supports the decisions of the courts below that pending suits are governed by the old Act unless Section 13A is invoked. |
| Banwari Lal v. Balkishan, 1972 Raj LW 635 | Held that although Section 13(1) is retrospective, sub-sections (4) to (7) of Section 13 are prospective and do not apply to pending suits. | The Court cited this ruling to support the position that certain sub-sections of Section 13 do not apply to suits pending at the time of amendment. |
| Jai Narain v. Meena Devi, 1978 WLN (UC) 473 | Contained observations supporting the view that the amended Section 13(3) (provisional determination) is procedural and therefore should govern pending suits in which a written statement had not been filed before the amended Act. | The Court referred to this decision but expressly declined to endorse its reasoning. The Court analysed the nature of Section 13(3) in context with sub-sections (4) and (5) and concluded those provisions create substantive rights and obligations, so Jai Narain's procedural characterization was rejected. |
Court's Reasoning and Analysis
The Court proceeded by examining the applicable authorities and the nature of the statutory provisions at issue. It identified an apparent conflict among single-Bench decisions and therefore considered controlling and persuasive decisions.
The Court began with Carona Sahu Co. Ltd. v. Vinod Kumar Goyal, accepting its conclusion that the legislature provided a special transitional provision (Section 13A) to deal with pending suits and that special provisions prevail over general ones. The Court treated that decision as directly applicable ("applies on all fours") to the facts before it.
The Court then cited Jagdish Prasad v. Firozi Bai to show that, under the General Clauses Act and related principles, a suit pending at the time of repeal/substitution is to be continued as if the substituted provisions had not been passed.
The decision in Kishanlal v. Kamla Devi Sharma was used to emphasize that the amended Section 13(3) cannot be made to displace orders or consequences arising under the earlier provisions where such orders had already been made or where the suit was pending at the time of amendment.
The Court relied on Hazarilal v. Radha Kishan to stress that Section 13A of the Amending Act is the specific provision to be used by tenants in pending suits wanting protection; Section 13(3) of the amended Act does not apply to pending suits.
The Court also cited Banwari Lal v. Balkishan for the proposition that certain sub-sections of Section 13 (sub-sections (4) to (7)) are prospective and do not apply to pending suits.
Addressing the contrary line of authority represented by Jai Narain v. Meena Devi, which treated Section 13(3) of the amended Act as procedural, the Court rejected that characterization. The Court reasoned that Section 13(3) must be read with sub-sections (4) and (5) of Section 13 (which "form integral links of the same chain") and that these provisions create substantive rights and obligations. As an illustration the Court pointed out that if sub-section (4) of the old Act applied, an obligation would be cast on the tenant to deposit or pay arrears on the first date of hearing and failure to do so could result in striking out of the defence — a substantive consequence incompatible with treating the provision as merely procedural.
On that basis, synthesizing the authorities, the Court concluded that suits pending at the commencement of the amended Act must be tried under the old Act as if the amended Act had not been passed, subject only to the special transitional mechanism provided by Section 13A of the amended Act.
Holding and Implications
Holding: The revision petition was dismissed. In the Court's words, "a suit for eviction which was already pending at the commencement of the amended Act will have to be tried in accordance with the provisions of the old Act as if the amended Act had not been passed."
Implications and direct effects:
- The rights and liabilities of the parties in the subject suit are to be determined under the provisions of the old (pre-amendment) Rajasthan Premises (Control of Rent and Eviction) Act, 1950, read with the special transitional provision Section 13A of the Amending Act.
- The defendant's failure to deposit or pay arrears in accordance with sub-section (4) (and related sub-sections) of the old Act exposes him to the sanctions provided therein (for example, the risk of his defence being struck out), unless he had timely invoked Section 13A as the special remedy for pending suits.
- The Court reaffirmed the existing line of decisions holding that the amended Section 13(3) does not apply to suits already pending when the amendment came into force; instead, Section 13A governs pending suits.
- The Court ordered that the revision be dismissed and left the parties to bear their own costs.
Revision dismissed.
Sidhu, J.:— This petition of revision under S. 115 C.P.C is directed against the appellate order, dated, July 23, 1981, by the Additional District Judge, Jaipur City whereby that learned Judge affirmed the order, dated, December 12, 1980, by the trial court dismissing the petitioner's application, dated, April 11, 1980, for provisional determination of arrears of rent payable by the petitioner-tenant to the respondent-landlord, in accordance with the provisions of Section 13(3), Rajasthan Premises (Control of Rent and Eviction) Act, 1950, as amended to date.
2. The facts which may be helpful in appreciating the controversy may be briefly recapitulated here. Prem Kishore, who is the respondent in this petition and who will hereinafter be referred to as the plaintiff, filed a suit against Kishanlal Sharma, the present petitioner, who will hereinafter be referred teas the defendant, for eviction from certain residential premises on the averments that the defendant is in occupation of the premises as a tenant since June, 1971, that the original landlord, Mukat Beharilal, sold the premises to the plaintiff, vide sale deed, dated, May 20, 1974, registered on June 17, 1974, that the vendor duly notified the defendant asking him to attorn to the plaintiff and pay rent to him from May 20, 1974 onwards and that the defendant had rendered himself liable to be evicted from these premises by reason of non-payment of rent due from him from September 1, 1974 to June 30, 1975. The plaintiff mentioned in this context that earlier he had filed a suit for eviction against the defendant in respect of the same premises on the ground of personal bona fide necessity and for recovery of arrears of rent for the period from May 20, 1974 to August 31, 1974, and that the same was still pending on July 2, 1975, when the present suit was filed.
3. The defendant filed his written statement on March 13, 1976, admitting that he had been inducted into the premises by Mukat Behari Lal on a rental of Rs. 50/- per mensem which was increased to Rs. 58/- per mensem with effect from February 1, 1972. He also admitted that Mukat Behari Lal had executed the sale deed, dated, May 20, 1974, in respect of these premises in favour of the plaintiff as vendee. He however described the sale as fictitious and benami which had been brought about by Mukat Beharilal so that he could obtain a decree for eviction in the name of the plaintiff on the ground of the latter's personal necessity.
4. As already stated, the suit out of which this petition of revision has arisen, was filed on July 2, 1975. Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, as it then stood at the time of institution of the suit (hereinafter called the old Act) required, that the tenant shall on the first day of hearing, or on or before such date as the court may on an application made to it fix in this behalf, or within such time not exceeding two months, as may be extended by the court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made the default. It is a matter of record, and it is indeed admitted by the defendant, that the first day of hearing in the suit was on September 26, 1975, when the defendant entered appearance and made an application under Section 10 C.P.C for stay of proceedings in the suit by reason of the pendency of a previously instituted suit in respect of the same subject matter. In other words, the defendant did not comply with the provisions of Section 13(4) of the old Act on the first day of hearing inasmuch as he did not deposit in court or pay to the plaintiff the arrears of rent for the period from September 1, 1974, to September 26, 1975 at the admitted rate of Rs. 58/- per mensem or for that matter at any other rate. Instead, he made an application nearly five years later, i.e, on April 11, 1980, for provisional determination of arrears of rent under Section 13(3), Rajasthan Premises (Control of Rent and Eviction) Act, 1950, as amended by the Rajasthan Premises (Control of Rent and Eviction) Amendment Ordinance 1975, since replaced by the Rajasthan Amending Act No. 14 of 1976 (the old Act, thus amended with effect from September 29, 1975, will hereinafter be referred to as the amended Act). Before the defendant made the said application, the plaintiff had already made his application dated, September 21, 1979, for an order directing the defence against eviction to be struck out on the ground that the defendant had failed to deposit or pay any amount referred to in sub-section (4) of section 13 of the old Act, and that he did not even avail of the special provisions of Section 13-A of the amended Act inasmuch as he did not make any application for determination of arrears of rent within the prescribed period of one month from September 29, 1975, when the amended Act came into force. The plaintiff filed a reply, dated, May 13, 1980, to the defendant's application dated, April 11, 1980. He repeated therein that since the suit was already pending on September 29, 1975, when the amended Act came into force, it will be governed by the provisions of the old Act, and therefore the defendant had already incurred the liability of his defence being struck out by reason of his failure to deposit or pay the amount referred to in sub-section (4) of section 13 of the old Act. On the other hand, the defendant took the stand that the suit is governed by Section 13(3) of the amended Act, and therefore a duty is cast on the court to make a provisional determination of arrears of rent to be deposited or paid by the defendant. Without such determination, it is further contended by the defendant, there is no question of deposit or payment by the defendant, and, for that matter, there is no question of his defence being struck out for non-deposit or non-payment.
5. The only question which fell for decision by the trial court in the matter of the defendant's application dated April 11, 1980, was whether the rights and liabilities of the plaintiff and the defendant in this suit which was instituted under the old Act and which was still pending when the amended Act came into force on September 29, 1975, would be governed by the old Act or by the amended Act. Relying on a judgment of this court reported in Hazariial v. Radha Kishan, Civil Revn. No. 307 of 1977, decided on November 20, 1978, the trial court held that the suit which was already pending when the amended Act came into force is governed by the provisions of the old Act, and that if the defendant wanted to save himself from the consequences of his failure to deposit or pay the arrears of rent in accordance with the provisions of Section 13(4) of the old Act, his only escape was by recourse to the special provisions of Section 13-A of the amended Act which deal with pending suits in a limited way. Since the defendant did not avail of the provisions of Section 13-A within the prescribed period of limitation his application, dated April 11, 1980, cannot be allowed. Consequently, the trial court dismissed the said application by its order dated December 12, 1980.
6. The defendant challenged the said dismissal by an appeal before the District Court. As already stated, his appeal was also dismissed by the Additional District Judge on July 23, 1981. Undeterred by these two dismissals, the defendant filed the present petition of revision which came up for hearing before G.M Lodha J. on December 11, 1981. Lodha J. felt some difficulty in deciding the matter by reason of what he described as a “seemingly serious conflict of opinion” expressed in certain single Bench decision of this Court. He therefore referred the revision petition for decision by a larger Bench. That is how a revision is before us for hearing and final disposal.
7. After hearing both sides, we are quite clearly of opinion that this matter is covered four-square by a number of decisions of this Court. We may start with the judgment reported in Carona Sahu Co. Ltd. v. Vinod Kumar Goyal, AIR 1979 Raj 1, which applies on all fours to the facts of this case. One of us (Kasliwal J.) who decided the cited case dealt with this point as under (at P. 4):—
“In my view the above provisions apply in a suit filed on or after coming into force of the amending Ordinance. However, the legislature was fully aware to deal with the pending suits and other proceedings by way of appeals, application for revisions etc., pending on the day of the commencement of the amending Ordinance and for which special provisions have been laid down by enacting Section 13A. It is a well settled proposition of law that where there are both special as well as general provisions with regard to a matter special provisions prevail over the general provisions.”
8. Reference may also be made to Jagdish Prasad v. Firozi Bai, 1981, WLN 497 : (AIR 1982 NOC 94), in which this Court discussed the effect of Section 6, Rajasthan General Clauses Act, 1955, on the repeal of some provisions of the old Act by their substitution by corresponding provisions of the amended Act, and concluded that a suit which was already pending at the time of such repeal was required to be continued as if the amended Act had not been passed.
9. Similarly, another single Bench of this Court has had occasion to deal with this point in Kishanlal v. Kamla Devi Sharma, 1979 Raj LW 369. The head-note in the report reads as under:—
The provisions of sub-sec. (3) of Section 13 as amended can only be made applicable to a case in which no order was passed under the earlier provisions of sub-sec. (3) or sub-sec. (4) of Sec. 13 of the Act. If at the time of the first hearing of the suit, the amended provisions of the Act were applicable as they existed before the amendment was introduced therein and if an order was passed by the court under the provisions of sub-sec. (3) or sub-sec. (4) of Sec. 13 of the Act, as they existed at that time then there is no further requirement under the amended provisions of sub-section (3) of Section 13 of the Act that the trial court should still proceed to pass a fresh order under the said provisions.
10. Hazarilal v. Radha Kishan, Civil Revn. No. 307 of 1977, decided by Kasliwal, J. on November 20, 1978, is a ruling relied on by the two Courts below in support of their decision that the suit giving rise to this revision petition will have to be decided in accordance with the provisions of the old Act by reason of the fact that it had already been instituted before the amended Act came info force. The cited case clearly supports the view taken by the Courts below. We may reproduce here from the cited judgment some observations which fully apply to the facts of this case. The relevant observations read as under:—
The provisions of Section 13A of the Amending Act, 1976, make it clear that provisions of Section 13(3) of the Amending Act 1976, do not apply in case of pending suits and actions. If a tenant in pending suit or action at the time of coming into force of the Rajasthan Amending Act, 1976 wanted to save himself from the default he should have resorted to Section 13A. The provisions of Section 13(3) of the Act number No. 14 of 1976 can only apply to suits filed after 29th September 1975. The present suit having been filed prior to this dated and the defendant having not moved any application under Section 13A of the Act No. 14 of 1976, will be governed by the provisions of Section 13(4) of the Act of 1950. The lower Courts have thus committed no error in passing an order striking out the defence of the defendant against eviction.
11. Reference may also be made to Banwari Lal v. Balkishan, 1972 Raj LW 635. The learned single Judge (Jagat Narayan C.J) held in the cited case that though Section 13(1) of the Act is retrospective but the provisions of sub-secs. (4) to (7) of Sec. 13 are prospective and do not apply to pending suits. This ruling also supports the view taken by the two Courts below.
12. We may now refer to Jai Narain v. Meena Devi, 1978 WLN (UC) 473 in which a learned single Judge of this Court (D.P Gupta J.) made certain observations which seem to support the defendant's contention that the amended Act will govern all suits which were pending at the time the amendments came into force. The learned Judge came to this conclusion on the view that provisions of sub-section (3) of Sec. 13 of the amended Act are procedural in nature and that therefore they would be applicable to all pending suits in which a written statement had not been filed before the amended Act came into force. We regret we cannot endorse the view that provisions of sub-sec. (3) of Sec. 13 of the amended Act are procedural in nature. If we read the provisions of sub-section (3) along with the provisions of sub-sections (4) and (5) of Section 13 of the amended Act which in fact have to be read together because they form integral links of the same chain, it will be seen that they create substantive rights and obligations which can be ignored by a party only at his peril. For example, if is held that sub-section (4) of section 13 of the old Act applies to a particular suit to the exclusion of sub-section (3) of Section 13 of the amended Act an obligation is immediately cast on the tenant to deposit or pay on the first date of hearing in the suit the arrears of rent due from him regardless of determination by the court and if he fails to do so, he runs the risk of his defence being struck out. That being so, a provision of law which creates rights and obligations of this, nature cannot by any stretch of reasoning be described as procedural in nature.
13. In view of the foregoing discussion of case-law, we hold that a suit for eviction which was already pending at the commencement of the amended Act will have to be tried in accordance with the provisions of the old Act as if the amended Act had not been passed and that therefore the rights and liabilities of the parties arising out of the tenant's failure to deposit or pay the arrears of rent in accordance with the provisions of sub-sections (4) and (6) of the old Act must be determined on the basis of the old Act and the special provisions of Section 13A of the amended Act. Consequently, we find on force in this revision petition and dismiss it as such leaving the parties to bear their own costs.
Revision dismissed.
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