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Case Number

S.B Civil Second Appeal No. 533 of 1964

Advocates

B.D Sharma for respondent.
Sumcr Chand and Ram Vilas for appellant.

Judges

Mr. Vedpal Tyagi

Acts

Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter called the Act)
BOMBAY RENTS HOTEL AND LODGING HOUSE RATES CONTROL ACT 1947
section 12(1) of that Act, held:Section 12(1) enacts a rule
section 2(e)

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Smart Summary

Judgment Summary — Tyagi, J.

Factual and Procedural Background

This is the plaintiff's second appeal in a suit for ejectment. The material facts as recited in the opinion are:

The suit shop was constructed in March 1956.
The shop was let to the defendant (Krishna Kumar) on 1 April 1957 at a rent of Rs. 32 per month.
The defendant allegedly failed to pay rent in time and breached tenancy terms.
The plaintiff became owner by a gift deed executed in his favour on 22 September 1958.
The plaintiff served a notice on 27 October 1960 terminating the tenancy with effect from 1 December 1960, and subsequently filed a suit for arrears of rent and ejectment.
The trial court proceeded with the matter and judgment was pronounced on 8 March 1963. By that time a period of seven years (relevant under section 2(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950) had elapsed in respect of the construction.
The trial court dismissed the suit on the ground that once the seven-year period had elapsed the Court could not pass an ejectment decree except on grounds specified in section 13 of the Act; the District Judge, Jodhpur, affirmed that view on appeal. The present matter is a second appeal against those concurrent decrees.

Legal Issues Presented

Whether section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (the "Act") prevents a court from passing an ejectment decree in favour of a landlord in respect of premises once the seven-year exemption under section 2(e) has expired, even where the cause of action for ejectment had accrued and the suit was filed before the expiry of that seven-year period.
Whether section 13 of the Act can be applied to pre-existing causes of action (i.e., whether that provision operates retrospectively in relation to suits filed before the expiry of the seven-year exemption but decided after that period).

Arguments of the Parties

Appellant's Arguments

Counsel for the appellant (Mr. Bhandari) conceded that section 13 bars courts from passing ejectment decrees when the Act applies, but argued that this statutory bar should not affect a landlord who, on the day the suit was filed, was entitled to judgment for ejectment under the tenancy agreement.
The appellant contended that section 13 could not be applied retrospectively so as to deprive a landlord of the concession given by section 2(e) (the seven-year exemption for new constructions), when the cause of action and filing of the suit occurred before the expiry of the seven-year period.
The appellant attempted (unsuccessfully) to argue that the seven-year period had not yet expired on the date the trial court pronounced judgment, but was unable to identify an exact date of completion of construction to support that contention; the plaintiff had only stated the shop was constructed in March 1956.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (Supreme Court)	That section (analogous provision: section 12(1) in the Bombay Act) enacts a rule of decision that a landlord is not entitled to possession if the tenant pays, or shows readiness and willingness to pay the standard rent and observe other conditions of tenancy; examined whether such a provision could apply when the cause of action and suit arose before the statutory provision applied to the premises.	The Court relied on this authority to support the proposition that a provision like section 13(1) operates as a rule of decision and can apply once the statute becomes applicable to the premises; accordingly, a landlord cannot obtain possession contrary to that rule even if the cause of action arose earlier and suit was filed before the statute's application.

Court's Reasoning and Analysis

The court framed the question as the impact of section 2(e) (seven-year exemption for new constructions) upon section 13(1) of the Act. The analysis proceeded in these steps, relying only on material in the opinion:

Textual interpretation: The court quoted section 13(1) in full and observed that it contains a legislative mandate that "no Court shall pass any decree, or make any order, in favour of a landlord ... evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act." The court treated this as a rule of decision that limits courts once the Act applies to premises.
Statutory scheme and legislative intent: The court examined the scheme of the Act and concluded the Legislature intended to protect tenants generally, while making a temporary concession to landlords who construct new premises by exempting such premises for seven years under section 2(e).
Temporal effect of the exemption: The court reasoned that the exemption provided by section 2(e) is strictly time-limited to seven years from completion; after that period the newly constructed premises are "automatically subjected to the application of the general scheme of the Act."
Consequences of expiry: Once the seven-year period expires, the provisions of section 13(1) apply and the court is precluded from passing an ejectment decree in favour of the landlord except on grounds enumerated in section 13.
Definition of "tenant" and its scope: The court noted the Act's wide definition of "tenant," which includes persons who continue in possession after termination of tenancy. Consequently, a person in possession after termination remains covered by the Act if the Act applies to the premises; the court therefore cannot pass an ejectment decree against such a person on grounds other than those in section 13.
Application to the present facts: The tenancy here had been terminated by notice, but the defendant continued in possession. The court found that by the date of the trial court's judgment (8 March 1963) the seven-year exemption period had elapsed in relation to premises constructed in March 1956, so section 13(1) barred an ejectment decree on grounds outside that section.
Support from precedent: The court cited the Supreme Court decision in Shah Bhojraj Kuverji ... to show that analogous statutory provisions operate as rules of decision and can be applied in circumstances where the cause of action had arisen earlier but the statute subsequently became applicable to the premises.
Plaintiff's evidentiary gap: The court observed that the plaintiff did not specify an exact completion date in March 1956 that would avoid the conclusion the seven-year period had expired by the date judgment was pronounced; in the absence of a particular completion date, the plaintiff could not avail an argument that the seven-year period had not yet run.

Holding and Implications

DISMISSED — The appeal was dismissed.

Direct consequences for the parties:

The concurrent findings of the courts below that the seven-year exemption under section 2(e) had expired and that therefore section 13(1) barred an ejectment decree were upheld.
Because the defendant remained in possession after termination and the Act applied to the premises, the plaintiff could not obtain an ejectment decree except on grounds provided in section 13 of the Act.
The court ordered no costs ("looking to the circumstances of the case, I pass no order as to costs").

Broader implications: The opinion reasons that once the temporal exemption under section 2(e) expires, the statutory protection in section 13(1) applies to premises and to persons in possession (including those continuing in possession after termination), thereby preventing courts from granting ejectment except on statutorily specified grounds. The judgment relies on existing Supreme Court authority but does not state that it establishes a novel principle beyond applying those authorities to the facts at hand.

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Narayan Chand v. Krishna Kumar

Tyagi, J.:— This is plaintiff's second appeal in a suit for ejectment and it arises out of the following circumstances.

2. It is common ground between the parties that the plaintiff's father constructed the suit shop in the month of March, 1956, and it was given on rent to defendant Krishna Kumar on 1st April, 1957, and that the rent was fixed at Rs. 32/- per month. It is alleged that the defendant did not pay the rent in time and violated the terms of his tenancy, therefore, the plaintiff, who became the owner of the shop by virtue of a gift deed executed in his favour by his father on 22nd September, 1958, served the defendant with a notice on 27th October, 1960, terminating his tenancy from 1st December, 1960 and thereafter filed the present suit for arrears of rent and ejectment. The suit was opposed by the defendant and the trial somehow continued upto 8th of March, 1963. By the time the judgment was pronounced in the case by the trial court, the period of seven years which excluded the suit property from the operation of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter called the Act) elapsed and therefore the court held that no decree for ejectment can be passed on any ground other than those mentioned in sec. 13 of the Act and since the plaintiff's suit did not fall within the ambit of the Act the suit was dismissed. Learned District Judge, Jodhpur also upheld the view of the trial court in appeal. In this second appeal the concurrent finding of fact that the suit premises were constructed in the month of March, 1956 has not been challenged. The decree of the courts below has been assailed only on the ground that the protection extended to the tenant under the Act cannot be availed of by the tenant, if the cause of action for filing a suit for ejectment under the agreement of tenancy has Page: 313accrued to the plaintiff before the expiry of seven years and the suit has been actually filed before the lapse of that period.

3. Learned counsel for the appellant, however, attempted to raise a plea that the period of seven years did not expire on the day the judgment of the trial court was pronounced, but on enquiry he could not point the exact date of the completion is of the said construction and therefore he did not persue it any further. Moreover this is purely a question of fact and it is admitted by the plaintiff that the shop was constructed in the month of March and therefore completion of the suit property before the 8th of March, 1956 could not be ruled out. In the absence of any particular date given by the plaintiff for the completion of the construction of the suit shop, this plea would not be made available to him.

4. The next and more vital question is whether the trial court could pass a decree for ejectment even after the lapse of a period of seven years though the cause of action for ejectment had accrued to the plaintiff prior to the expiry of that period and the suit was actually filed by him much before seven years had elapsed. The argument of Mr. Bhandari, appearing for the appellant, is that sec. 13 of the Act no doubt bars the court to pass a decree or make an order in favour of the landlord, whether in execution or otherwise, for the ejectment of a tenant on any ground other than the one specified in sec. 13 of the Act if the Act applies to the suit premises but, according to him, that statutory bar would not come in the way of that landlord who, in spite of the Act, was entitled to get a decree for ejectment under the agreement of tenancy on the day when the suit was filed by him in a court of law. He further contended that section 13 of the Act in such cases cannot be applied retrospectively so as to deprive the landlord of the protection that has been extended to him by the Legislature itself by introducing cl. (e) in section 2 of the Act which specifically provides that the Act would not apply to new constructions for seven years.

5. In order to determine the contention of Mr. Bhandari, I shall have to examine the nature and the extent of the protection given to the tenant by enacting section 13(1) of the Act. The opening part of section 13(1) of the Act reads as follows:

“13.(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…”

6. This provision of the Act clearly contains a mandate of the Legislature that no court shall pass a decree, or make any order, for the ejectment of a tenant so long as the tenant pays the rent agreed upon between the parties to the landlord. There are certain exceptions to this provision and those exceptions are contained in various clauses of this section, but as they are not relevant for the purpose of the decision of this appeal, I need not consider them here. The only point which I have to consider is the impact of sec. 2(e) of the Act on the provisions of sec. 13(1).

7. Looking to the scheme of the Act, it is clear that the Legislature wanted to protect the tenants from being harassed by their landlords and that protection was extended by the Legislature by giving a mandate to the court not to pass any decree or make any order, whether in execution of a decree or otherwise, in favour of a landlord for the ejectment of a tenant on the ground other than those mentioned in sec. 13 of the Act. But the Legislature was also conscious of the fact that this Act is likely to give a setback to the activities of the landlords in making new constructions and therefore an exception was introduced in favour of the landlords who make new constructions and for that purpose section 2(e) was enacted by the Legislature, which provides:

“That nothing in the Act shall apply to any premises the construction of which was completed on or after the 1st June, 1951, for a period of seven years from the date of such completion.”

8. This concession that the Act would not govern the new constructions is available to the landlords only for a fixed term of seven years and thereafter the newly constructed premises are automatically subjected to the application of the general scheme of the Act. In this scheme of things, a landlord can therefore request the court for passing a decree or making an order for ejectment of a tenant Page: 314only upto the last day of the period of seven years from the date of the completion of the building and no sooner the period of seven years expires the provisions of section 13(1) of the Act would apply to the premises which clearly bars a court to pass a decree or order in favour of the landlord for ejectment except on any one of the grounds mentioned in that section itself.

9. I may examine this question from the other angle also. The term “tenant” is defined in the Act. According to this definition of tenant, tenant means the person by whom the rent is, or but for a contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant, or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act. This definition, in my opinion, is very wide and it covers that person also whose tenancy has been terminated, but he continues in the possession of the rented premises. The protection extended to a tenant can therefore be availed by that tenant also whose tenancy has been terminated but somehow he continued in the rented tenements till the suit is filed. The court in my opinion, is not competent to pass a decree against the person who falls within the term ‘tenant’ under the Act if the Act is made applicable to the premises occupied by him on any ground other than those mentioned in section 13 of the Act. The tenancy of the defendant was no doubt terminated by the plaintiff by his notice dated 27th October, 1960 with effect from 1st December, 1960, but it is admitted by both the parties that the defendant remained in possession even thereafter and on the date when the judgment was pronounced by the trial court he was in possession of the suit premises. In these circumstances, the bar imposed by section 13(1) of the Act precludes the court in passing a decree of ejectment in favour of the plaintiff landlord. This view of mine finds support from the Supreme Court authority in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (1). That case is from the Bombay State. In that case the tenancy was terminated by afflux of time and the landlord thereafter filed a suit for possession of the premises on 25th April, 1957. It so happended that before his suit was decided by the court, the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, were extended to the area wherein the premises were situate. The question that arose for the determination of the Supreme Court was whether section 12 of that Act, which is analogous to section 13 of the Act could apply retrospectivoly and could govern the case where the cause of action had arisen and a suit was filed thereon before the application of the provisions of that Act to that area. In that connection, their Lordships, while discussing the scope of the application of section 12(1) of that Act, held:

“Section 12(1) enacts a rule of decision, and it says that a landlord is not entitled to possession if the tenant pays or shows his readiness and willingness to pay the standard rent and to observe the other conditions of the tenancy.”

10. There Lordships, while discussing the province of the application of sec. 12, whether it was retrospective or prospective, further observed:

“But a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse. The sub-section says that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay the standard rent etc., and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned.”

11. Learned counsel for the appellant submits that giving retrospective application to section 13 of the Act to the cases which arise in respect of the premises which have been newly constructed would mean to take away the concession which the Legislature wanted to give to them. I do not agree with this contention of learned counsel. The concession envisaged in section 2(e) of the Act is available to the landlord upto the last day of the period of seven years and no court in spite of section 13 of the Act would deny the landlord his right to get a decree for ejectment of his tenant if he does not perform the terms of the covenant entered into between the landlord and the tenant, but no sooner the period of seven years is Page: 315passed the tenant can, with all justification seek the protection given to him by the Act, and if for one reason or the other he is in the possession of the premises after the lapse of a period of seven years, he can claim that he can be ejected from the rented premises only in accordance with the provisions of section 13 of the Act by which the ligislature has, in the peculiar circumstances prevailing in the country, provided special safeguard for the tenants.

12. For the reasons given above, I do not find any substance in this appeal and it is, therefore, dismissed, but looking to the circumstances of the case, I pass no order as to costs.

Narayan Chand v. Krishna Kumar

Judgment Summary — Tyagi, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Narayan Chand v. Krishna Kumar

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