1. These are revisions under S. 25 of the Provincial Small Cause Courts Act. The applicant in Civil Revision No. 83 of 1986 is the plaintiff-landlord. The applicants in the other two revisions are tenants. These revisions were heard together as the principal question involved in each of them is the same. And, the question is whether the date of completion of construction of a building is to be determined in accordance with the ‘deeming provision’ contained in Explanation I to S. 2(2) of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for brief, the Act) even where the plaintiff himself discloses a date of such construction which is different from the one contemplated by the Explanation. In Civil Revision No. 83 of 1986, an additional question was canvassed before me. The question is whether tenancy of distinct tenements can be terminated by a common notice under S. 106 of the Transfer of Property Act and a single suit in respect of such tenements with distinct tenancies could be instituted. But, first the facts: In Civil Revision No. 83 of 1986 Smt. Samundri Devi, the plaintiff, made an admission through her counsel before the Income-tax authorities that the completion of construction of the premises in dispute in the suit was on Aug. 31, 1975. The statement of plaintiffs husband, as her attorney, under O. 10, R. 2, C.P.C before the trial Court was that the accommodation in question was given on rent to Bhal and Duggal Company on June 25, 1976. The accommodation was, however, assessed for the first time to House Tax and Water Tax by the Nagar Palika, Ghaziabad with effect from Oct. 1, 1976.
2. In Civil Revision No. 390 of 1986 the assertion in para 3 of the plaint is that the construction of the house was completed in the beginning of December, 1974. In para 4 of the plaint, it was added that the provisions of U.P Act No. 13 of 1972 were not applicable to the accommodation. The building was, however, first assessed to tax by the Nagar Palika with effect from Oct. 1, 1976. In Civil Revision 448 of 1986 the plaintiff obtained the possession of the house from the Ghaziabad Development Authority in the year 1974. It was assessed to tax by the Nagar Palika in the year 1977 with effect from April 1, 1977. Now, the Law: S. 2 of the Act which deals with exemption from the operation of the Act say in sub-sec. (2) that:—
(2) Except as provided in sub-sec. (5) of S. 12, sub-section (1-A) of S. 21, sub-sec. (2) of S. 24; Ss. 24-A, 24-B, 24-C or sub-sec. (3) of S. 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed:
Provided that…………..
Explanation I. For the purposes of this sub-sections—
(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely from the purposes of supervising the construction or guarding the building under construction) for the first time:
Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants:
(b)-(c) ……………………
3. The submission made on behalf of the tenants is that where the date of completion of construction is given out by the plaintiff-landlord or is admitted to him, recourse to Explanation I cannot he had for finding out the said date. In other words, where there can possibly be no dispute about the date of completion of the construction of a building like a case where the landlord himself gives it out or admits it, one cannot look to the ‘deeming provision’ contained in Explanation I to find it out. Three decisions of this Court have been cited in support of this submission. The first of these is of K.N Goyal, J. in Laxmi Shanker Srivastava v. Dr. J.C Sharma, 1980 All Ren Cas 43. In that case the tenant had approached the High Court in a writ petition against a decision of the Judge, Small Cause Court directing his ejectment which, had been affirmed in revision by the Additional District Judge. The premises under tenancy were situated on the first floor. The ground floor had been constructed earlier and had been assessed to House Tax by the Nagar Mahapalika in 1953. The accommodation in question was part of the first floor about which the tenant himself had mentioned in earlier proceedings in the Court of Munsif that the portion in which he was a tenant was built in the year 1967–1968 and had been let out for the first time to him in the year 1968 after it has been completed. The date of occupation of the accommodation had been mentioned by the tenant in the writ petition as July 1, 1968. The case of the landlord was that the accommodation was constructed in the year 1968 and the tenant was its first occupant. U.P Act No. 13 of 1972 was not applicable to it. The plea of the tenant was that the provisions of the Act were applicable to it because the main building had been assessed to tax in the year 1953 and it was only some addition and alteration which had been made by the landlord, after getting a plan sanctioned from the Mahapalika, in the year 1968. The whole building was, therefore, likely to be treated to having been assessed in the year 1953.
4. The learned Judge negatived the submission made on behalf of the tenant that there could not be different dates of completion of construction in respect of different parts of a building designed or occupied as separate unit and on the basis of the admission of the tenant himself that the accommodation in dispute had been occupied by him for the first time after its completion in the year 1969, he said further that the finding of the two Courts below based on pleadings and evidence could not be deemed to be illegal. Thereafter, he observed, though it was not really necessary, that “……….Moreover, if the date of construction is, according to the rules of pleadings, to be deemed as impliedly admitted, under O. VIII, R. 5, C.P.C read with S. 58, Evidence Act then the question of ascertainment of various dates mentioned in the said Cl. (a) of the Explanation does not arise. I thus find no good ground, in exercise of the writ jurisdiction, to disturb the concurrent finding of fact of the two Courts in this point.”
5. The second decision is of A. Banerjee, J. in Fateh Chand v. Ratan Singh Sethi, (1985) 1 All Rent Cas 513. This too was a writ petition filed against the order of the Additional District Judge allowing a revision under S. 25 of the Provincial Small Cause Courts Act setting aside the decree of the trial Court dismissing the suit for ejectment filed by the petitioner. The Additional District Judge had held that the provisions of the Act were applicable to the premises in suit.
6. The suit was filed on Feb. 3, 1972. The case of the landlord before the trial Court was that the building was completed in the year 1966. The tenant's plea was that it was a pre-1951 construction. The trial Court held that the building had been constructed in the year 1966. That finding was upheld by this Court in Civil Revn. No. 3131 of 1977 on Aug. 27, 1979. No date given out. This Court allowed the revision and remianded the case back to the Additional District Judge to determine the question whether U.P Act No. 13 of 1972 applied and whether the tenant was entitled to the benefit of S. 39 thereof. The Additional District Judge came to the conclusion that the Act applied on July 15, 1972 when it came into force throughout the State and the tenant was entitled to the benefit of S. 39 and that he had deposited the requisite amount in accordance with that provision. In this Court it was urged on behalf of the landlord in the writ petition that the building would be deemed to have been completed only when the first assessment had been made with effect from April 1, 1974 and that, therefore, the Act would not apply till April 1, 1984. This plea was rejected by this Court. What was said in paras 7 and 8 of the Report was this
“7. The finding recorded earlier in Civil Revision No. 3131 of 1977 was to the effect that the building was constructed in the year 1966 without giving any date. Learned Counsel for the petitioner has, however, relied upon Annexure RA-1 (Copy of the Quinquennial Assessment 1974–79) to urge that the date of the first assessment was the 1st April, 1974. This was not the petitioner's case earlier. It was stated for the first time in the rejoinder affidavit. Learned Counsel for the respondent, tenant urged that this could not be looked into or relied upon for this was not in the pleadings of the landlord petitioner. The very fact that the petitioner has taken the plea that the building was constructed in the year 1966, he could not be allowed to resile from the stand and to urge a new date of the completion of the building for the first time in the writ petition and that too in rejoinder affidavit.
8. It is obvious that the plea has been taken after a perusal of the judgment of the case of Vineet Kumar (1984 All LJ 102) (supra) I am not inclined to go against the pleadings. The petitioner's case was that the building was completed in 1966 while the tenant pleaded that it was a pre-1951 construction. The finding was that the building was completed in 1966 and this finding has been affirmed by the High Court in the earlier civil revision. Unless the pleadings were amended it would not be any justification to accept the date of the completion of the building to the 1st April, 1974. That not having been done I am not prepared to place any reliance on the date now asserted by the petitioner.”
7. A. Banerjee, J. mentioned in the last paragraph of the judgment that he did not find it a fit case for interference in exercise of powers of this Court under Art. 226 of the Constitution.
8. The third decision is a recent one. It is by Om Prakash, J. In the case of Hirday Narain Singh v. Maloo Ram Srivastava, (1986) 12 All LR 131 : (1986 All LJ 689). The decision was given in Civil Revn. No. 19 of 1985. Hirday Narain Singh is the tenant of the ground-floor of the building. It was completed in January, 1975 as asserted by the plaintiff-landlord. Maloo Ram, the plaintiff, purchased the building on Sept. 10, 1974 and certain constructions were raised by him thereafter. He filed Suit No. 4 of 1981 for ejectment of two tenants in the suit, namely, Hirday Narain Singh and his wife. The case set up by him was that U.P Act 13 of 1972 did not apply to the building in question. In defence, it was asserted that the tenancy was created in favour of the wife. Also, that U.P Act 13 of 1972 was applicable since the construction pertained to the period preceding ten years. The trial Judge found that the tenancy had been created in favour of Hirday Narain and not his wife. Further, that the plaintiff was unable to prove that she had completed the construction in question in or about January 1975. In view of, this finding, the question relating to the effect of Cl. (a) of Explanation (1) to S. 2(2) of the Act was left undecided. The suit was dismissed on the finding that U.P Act 13 of 1972 was applicable. The plaintiff came to this Court in Civil Revision No. 498 of 1982 which was decided on April 28, 1983. The matter was remanded to the trial Judge, inter alia, to record a finding on the question as to when was the construction of the disputed portion actually completed and what was the date on which the first assessment relating to it came into effect. B.D Agarwal, J., who decided the Revision, felt that even though the trial Judge had found that the construction was not raised in or about January 1975, the question still remained as to when was it done, because even if the plaintiff had failed to establish that the construction came to be raised in January 1975 the trial Judge had to consider the effect of the fact that some construction did exist on or about September 10, 1974 when he had purchased the building. After the remand, the trial Judge went into evidence afresh and came to the conclusion that after the purchase when the construction was incomplete, the finishing work of the ground-floor and its construction was completed in January 1975. He also found, that the construction of the first floor was completed in December 1975 and the house was assessed to tax by the Nagar Mahapalika for the first time with effect from April 1, 1976. The suit was decreed on Jan. 5, 1985 with the finding that the provisions of U.P Act 13 of 1972 did not apply to the premises in dispute. Civil Revision No. 19 of 1985 was then filed by the tenants in this Court. The revision was allowed by Om Prakash, J. on Nov. 20, 1985 on his view that, inasmuch as, the plaintiffs own case was that the construction had been completed in January 1975, the date of completion of the construction could not be determined by reference to Cl. (a) of Expln. (1) to S. 2(2) of the Act.
9. From the facts of the case noticed above, it is clear that in January 1985 when the-trial Judge had decided the suit afresh in accordance with direction contained in the judgment of this Court dt. April, 28, 1983 in Civil Revision No. 498 of 1982 (reported in (1983) 2 All Rent Cas 50) a period of ten years had admittedly elapsed from the date of completion of the construction of the ground floor of the building, which was the accommodation in suit, even on the basis of the finding recorded by the Court on consideration of the evidence on record and the finding had become final between the parties. When the matter was dealt with by this Court a second time in Civil Revision No. 19 of 1985 (reported in 1986 All LJ 689), the fact that the finding on evidence was that the completion of the construction had taken place in January 1975, was not in issue between the parties. On that account, it is obvious, it was not necessary for this Court to go into the question as to whether the date of the completion of the construction in question could be determined by reference to Cl. (a) of Expln. (1) to S. 2(2) of the Act. The parties were at issue during the trial on the question whether the completion of the construction of the ground-floor was in January 1975 as pleaded by the plaintiff or was it earlier to it as pleaded by the defendants. That question was answered by the trial Judge, under the direction of this Court in the order of remand, on a consideration of the evidence on record, in favour of the plaintiff by saying that the completion of the construction was in January, 1975. On this finding recorded on the basis of the evidence led by the parties and which, had become final between them, the only conclusion which was possible in view of the decision of the Supreme Court in Vineet Kumar v. Mangal Sain Wadhera., (1984) 3 SCC 352 : AIR 1985 SC 817 : (1984 All LJ 102) was that the exemption from the operation of the provisions of the Act contained in S. 2(2) had ceased to operate in respect of the ground floor. This Court could not legitimately have been invited, as was done, to go into the further question whether the date of completion of the construction had to be determined with reference to Cl. (a) of Expln. (1) to S. 2(2) of the Act.
10. Explanation (1) to S. 2(2) which has been read earlier contains a ‘deeming’ clause. It creates a legal fiction. The rule about a legal fiction was stated by Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109 (b) in the following words:
“If you are bidden to treat an imaginary state of affairs as real, you must surely unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it…… The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.”
11. This principle was noticed by the Supreme Court in State of Bombay v. Pandurang Vinayak, AIR 1953 SC 244. Another principle which their Lordships of the Supreme Court noticed, with approval, in the same decision was that:
“When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and is bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. (Vide Lord Justice James in Ex. Parte Wallton; In Re Levy, (1881) 17 Ch D 746 at p. 756(a).”
12. The legal fiction thus is a legislative device for assuming something which, in reality, it is not. In other words, the intendment of the Legislature is to give an artificial meaning to the subject-matter of the fiction created by it. For example, in the Controller of Estate Duty, Gujarat v. Kanti Lal Trikamlal, (1976) 4 SCC 643 : AIR 1976 SC 1935, it defined ‘property’ in S. 2(15) of the Estate Duty Act, 1953 and by Explanation 2 the Parliament provided that the extinguishment at the expense of the deceased of a debt or other rights shall be deemed to have been a disposition made by the deceased in favour of the person for whose benefit the debt or right was extinguished and in relation to such a disposition the expression ‘property’ shall include the benefit conferred by the extinguishment of a debt or right. The same Act provided in S. 9 that property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos not made bona fide two years or more before the death of the deceased, shall be deemed to pass on the death. The Supreme Court laid down that expression ‘disposition’ in S. 9 must be read with the definition in Expln. 2 to S. 2(15) since that was the whole purpose of a ‘deeming’ provision. In other words, a transaction which may not otherwise amount to disposition of property in law shall be deemed to be such disposition for purposes of the Estate Duty Act by virtue of the deeming provision.
13. The mere fact that the deeming provision is expressed to be an explanation will not alter its basic character nor limit it to a mere explanation of substantive provision. A substantive provision may be given the nomenclature of an explanation. The Legislature has its own way of describing a provision. To quote the words of the Supreme Court in D.G Mahajan v. State of Maharashtra, (1977) 2 SCC 548 : AIR 1977 SC 915.
“It is true that the orthodox function of an explanation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it. But ultimately it is the intention of the Legislature which is paramount and mere use of a label cannot control or deflect such intention. It must be remembered that the legislature has different ways of expressing itself and in the last analysis the words used by the legislature alone are the true repository of the intent of the legislature and they must be construed having regard to the context and setting in which they occur. Therefore, even though the provision in question has been called in Explanation, we must construe it according to its plain language and not on any a priori considerations……….”
14. The Supreme Court, in S. Sundaram Pillai v. V.R Pattabhiraman, (1985) 1 SCC 591 : AIR 1985 SC 582 dealt inter alia, with the meaning to be given to the Explanation added to the proviso to S. 10(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Sub-sec. (2) of S. 10 said in its proviso that if the Rent Controller was satisfied that the tenants' default to pay or tender rent was not willful, he may give the tenant a reasonable time not exceeding fifteen days, to pay or tender the rent and on such payment or tender, the application for eviction shall be rejected. The Explanation said that for the purpose of the sub-section default to pay or tender rent shall be construed as willful if the default by the tenant in the payment or tender of rent continues after the issue of two months' notice by the landlord claiming the rent. The argument made on behalf of the tenants that even in a case where the landlord chose to give two months' notice to the tenant to clear up dues and the tenant did not pay the dues within the stipulated time, the Controller could yet decide whether there was willful default or not within the meaning of the proviso, was repelled by the Supreme Court (in para 62 of the report) by saying that if the landlord chose to give two months' notice to the tenant to clear up the dues and the tenant did not pay the dues within the stipulated time of the notice then the Controller would have no discretion to decide the question of willful default because such a conduct of the tenant would itself be presumed to be willful default. The Supreme Court dealt with the law relating to interpretation of a proviso or an explanation in a Statute and notice the opinion expressed in some books on Interpretation of Statutes and some earlier decisions of the Court. It, however, held on the language in which the explanation was couched that on the occurrence of the situation contemplated by the explanation, the Controller had no discretion but to presume that there was willful default on the part of the tenant. This decision unmistakably reiterates the cardinal principles of interpretation that primarily it is the intention of the legislature discernible from the language used by it which is to be given effect to.
15. The language in which Explanation (1)(a) is couched is clear. In effect, it says that for purposes of sub-sec. (2) of S. 2 of the Act, the construction of a building shall be deemed to have been completed:
(a) On the date on which its completion is reported to or otherwise recorded by the local Authority; and,
(b) In case of a building subject to assessment the date on which the first assessment thereof comes in effect.
of these the earlier of the two dates.
(c) And where there is no report, record or assessment, the date on which it is actually occupied.
16. This is the sequence in which the date of completion of construction is to be ‘deemed’ for purposes of S. 2(2). The Legislature, having regard to the fact that the building was to be kept out of the purview of the provisions of the Act for a specified period from the date of completion of its construction wished to ensure that the said date should be known with definiteness and in order to achieve this it engrafted a legal fiction in respect of the said date. In other words, irrespective of what the actual date of completion of construction may be, the date, for purposes of S. 2(2), would be the one determined with reference to the deeming provisions contained in the Explanation. That is the preponderant judicial view in the matter. Hari Swarup, J. observed in Tilak Raj v. Sardar Devendra Singh, (1976) 2 All LR 721 : (AIR 1977 NOC 184) that for the purpose of the case “a building is to be deemed to be constructed if it is subjected to assessment on the date with effect from which the first assessment is made. It is immaterial whether the building is constructed actually prior to that date or it has come into occupation prior to that date……….” M.P Mehrotra, J. opined in Hirday Ram v. H.S Kochar, (1977) 3 All LR 518 : (AIR 1977 NOC 357) that:
“It is significant that in the Explanation the actual date of construction has not been laid down to be the date on which the building is to be deemed to be completed. In other words, irrespective of the actual date of such construction, that date shall be deemed to be the date of completion which satisfies the criteria laid down in the aforesaid Explanation……….. when law has interposed to lay down a fiction, it is not open to fall back on the reality or the factual aspect of the matter were to be considered, then that course will be in the teeth, of the deeming provision……….”
17. A Division Bench laid down in Om Prakash v. Digvijendra Singh, (1979 All Rent Cas 469 that Cl. (a) of Expln. 1 together with the proviso was capable of only one meaning and not other and it was that in case of a building subject to assessment, the construction of a building shall be deemed to have been completed on the date on which the first assessment of the building comes into effect. This was affirmed by the Supreme Court in its decision reported as Om Prakash v. Digvijendra Pal Gupta, (1982) 2 SCC 61 : AIR 1982 SC 1230 (2) : (1982 All LJ 376) when it said (in paras 5 and 6 of the report) that:
“……….There is no ambiguity in the language of sub-sec. (2) of S. 2 and in the absence of any ambiguity there is no question of taking any external and for the interpretation of the sub-section………. Primarily the language employed is the determining factor of the intention of the legislature. The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the legislature itself……….In the present case, the language of sub-sec. (2) of S. 2 of the Act is not capable of two interpretations…… If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction……”
18. K.N Singh, J. in O.P Chopra v. Mt. Surjit Kaur, 1978 (U.P) RCC 599 : (1979 All LJ 109); M.N Shukla, J. (as he then was) in Anwar Khan v. 1st Addl. Dist. Judge, (1983) 1 All Rent Cas 364 : (1983 All LJ NOC 42) wherein he said that the very essence of a legal fiction is assumed existence of something that does not actually exist and that, therefore, even though the date of actual completion of construction of the building may be different, yet the law does not take notice of such date unless it is followed by the fulfillment of one of the conditions mentioned in the Explanation:
19. N.D Ojha, J. in Deoki Nandan v. 5th Addl. Dist. Judge, 1983 All LJ 733, I myself in Smt. Sharda Devi v. Purshottam Kumar, (1984) 2 All Rent Cas 200, V.K Khanna, J. in Ram Kishan v. Judge, Small Cause Court, Meerut, (1985) 2 All Rent Cas 248, R.C Deo Sharroa, J. in Pooranchand v. VII Addl. Dist. Judge, (1985) 1 Rent CR 127; R.K Shukla, J. in Lt. Col Kripal Singh Khera v. A.D.J, 1985 All WC 756 : (1985 All LJ 953) have expressed the same view. The matter was recently considered by the Supreme Court in Vineet Kumar v. Mangal Sain Wadhera., (1984) 3 SCC 352 : AIR 1985 SC 817 : (1984 All LJ 102). Dealing with S. 2 of the Act and referring to Explanation I thereof the Supreme Court said that the building in question before it “was subject to assessment, therefore, it will be deemed to have been completed on the date of assessment……….”
20. Even if one were to have reference to the objects of the Act, one would find, as observed by N.D Ojha, J. in Jhamman Das v. Ram Krishna, (1986) 1 All Rent Cas 427 that:
“The aforesaid sub-sec. (2) of S. 2 was brought on the statute book in order to provide incentive for investing money to constructing buildings so that they may be available for occupation of those who have no building to reside……….”
21. In Ganpat Ladha v. Sashikant Vishnu Shinde, (1978) 2 SCC 573 : AIR 1978 SC 955, while dealing with the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act (Act No. 57 of 1947), the Supreme Court, speaking through M.H Beg, C.J, said (in para 11 of the Report) that:
“It is clear to us that the Act interferes with the landlord's right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords' power to evict them, in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be; respected.”
22. These observations were quoted with approval by the Supreme Court in Mrunalini B. Shah v. Bapalal Mohanlal Shah, (1980) 4 SCC 251 : AIR 1980 SC 954.
23. The provisions of our Act appear to attempt a balance between the protection given to the tenant and the right of the landlord of evicting the tenant for his failure to perform his obligation as a tenant. In addition, the Act also has in mind the object of encouraging building activities in the State as is evidenced from S. 2(2). That one of the objects of the Act was to encourage building activity in the State is clear from the statement of objects and reasons for the Bill relating to the Act, 10 years holiday from regulation was being provided to give incentive for construction of new buildings. The date with reference to which the period of holiday was to operate was, therefore, to be made definite. The Legislature, in its wisdom, thought of providing it with reference to the legal fiction contained in Expln. I to S. 2(2).
24. Where, irrespective of the reality, the Legislature has unmistakably provided for assumption of the date of completion of the construction of a building in Expln. 1 to S. 2(2) of the Act it is immaterial whether the landlord admits or avers to a date of completion of construction of the building different from the one contemplated by the fiction. Normally an admission may be binding upon the person making it except where he is able to explain it away. But that principle will be wholly inapplicable to a case in which the Legislature, acting within its competence, mandates through a legal fiction assumption of a fact different from the reality. Judged in this context the submission founded upon, the statement of the principle that a legal fiction cannot be taken into account if truth is known mentioned in M.C Desai's Law Lexicon (Vol. II at page 778), nor the observations of the Division Bench of the Gujarat High Court in Ambalal Vallavbhai v. Mangalbhai Dhulabhai Bhoi, AIR 1978 Guj 208 (in para 10) to which a reference was made by Sri G.P Bhargava, leading the arguments on behalf of the tenants can be of assistance. In that case S. 4 of the Bombay Tenancy and Agricultural Lands Act, 1948 was up for consideration. It provided for a, person lawfully cultivating any land belonging to another person to be deemed to be a tenant of such land in certain circumstances. A learned single Judge of the Court took a view that S. 4 did not create an artificial class of deemed tenants. The Division Bench, which heard the matter, after referring to the provisions of the Statute and various decisions came to the ultimate conclusion that the language in which S. 4 was enacted could not be said to give rise to irrevocable fiction. The observations which it made in para 10 of the Report were these:—
“Now let us see the distinction between a presumption and a legal fiction. In our opinion, a legal fiction is one which is not an actual reality but which the law requires the Court to accept it as a reality. Therefore, in case of legal fiction, the Court believes something to exist which, in reality, does not exist. In other words, it is nothing but a presumption of the existence of a State of affairs which in actual reality is non-existent. When viewed from this context, there is not much difference between a legal fiction and a presumption. However, it cannot be said that legal fiction and a presumption are wholly identical in all respects. A presumption may be conclusive or it may be rebuttable. A presumption gives rise to a legal fiction. It is conclusive if no evidence can be permitted to be led to deny it. In case of a presumption which is rebuttable, unless the contrary is established, a fictitious state of affairs is presumed to exist as if it is an actual reality……….”
25. These observations themselves answer the submission made on behalf of the tenants because having regard to the language in which Expln. I to S. 2(2) is couched, it is not possible to say that it permits any freedom to assume a date of completion of construction for purposes of S. 2(2) in a manner other than that contemplated by the Explanation.
26. In Brijnandan Singh v. Jamuna Prasad Sahu, AIR 1958 SC 589, a Division Bench of the Patna High Court was called upon to interpret S. 6(1) of Bihar Land Reforms Act 30 of 1950. Under it all land used for agricultural or horticultural purposes, which was in possession of an intermediary on the date of vesting, was to be deemed to be settled by the State with such intermediary in certain situations. The Bench said that it was conceded before it that in the process of vesting the right of possession in such land also vested in the State and therefore, it was settled back by the outgoing proprietor by operation of law but felt that the main purposes for which the fiction of settlement had been imported in S. 6 was to adjust the relationship in regard to land specified in it between the incoming estate and the outgoing proprietor and thereby enabling on the one hand the incoming estate to assess rent on the land and on the other, the outgoing proprietor to have a definite legal status in the right of possession which was left behind in the matter of vesting. The rights of any third person with whom the proprietor of the land may have entered into a contract were presumed to be beyond the scope of that Act. And as such, their interest in the right of possession in lands referred to in S. 6 was not in any way affected or altered by vesting as provided in the Act. In this context the Bench observed (in para 12 of the Report), inter alia, that a fiction in the realm of law has a defined role to play and it could not be stretched to a point where it loses the very purpose for which it is used and in no case can it be allowed to perpetrate injustice.
27. As noticed earlier, the object of S. 2(2), inter alia, was to ensure a period of holiday for the landlord to encourage building activity. There is nothing in the scheme of U.P Act No. 13 of 1972, particularly having regard to the twin objects with which it has been enacted and which have been noticed earlier, to suggest that assumption of a date of completion of construction, different from the one provided for in Expln. I to S. 2(2) would sub-serve the objects of the Act or that in fixing the date of completion of the construction of a building in terms of Expln. I would, in any manner, defeat the objects of the Act.
28. The decisions of the Supreme Court in Nathoo Lal v. Durga Prasad , AIR 1954 SC 355 and N.B Gosavi Balajiwale v. G.V Gosavi, AIR 1960 SC 100 which lay down that admissions, even if they are not in pleadings, are bindings can also not be pressed into aid, as was attempted to be done on behalf of the tenants, for the plea that it was open to a landlord to aver to a date other than the one contemplated by the Explanation to be the date of completion of construction. It may also be mentioned that in Civil Revision No. 390 of 1986 the statement that the construction of the house was completed in the beginning of December, 1974 was accompanied with the statement that house tax was assessed much thereafter and that the provisions of U.P Act No. 13 of 1972 were not applicable to it. There was, thus, no unequivocal admission on the part of the plaintiff.
29. In Civil Revision No. 448 of 1986, the claim of the tenant was that the house was constructed in the year 1974 while of the landlord that it was constructed in September, 1976 and its first assessment was made in the year 1977. In Civil Revision No. 83 of 1986, the plea of the landlord was that the building in question was constructed in October, 1976 and was assessed to House Tax on October 1, so that U.P Act No. 13 of 1972 was not applicable. The case of the tenant was that it had been constructed earlier and that an admission had been made by the landlord before the I.T.O regarding the construction of the building on Aug. 31, 1975 so that the Act was applicable. In each of these three cases, therefore, the fact that the provisions of the Act were not applicable, having regard to the date of assessment to tax by the local authority was asserted by the landlords. In neither of these cases had the landlords pleaded unequivocally that having regard to the actual date of construction (without reference to Explanation I of S. 2(2)) the provisions of the Act were attracted. Clearly, thus, they had all sought exemption from the applicability of the provisions of the Act for the period of holiday contemplated by S. 2(2) with reference to the date of completion of construction provided for by the Legislature in Expln. I.
30. The suit giving rise to the landlord's Revision No. 83 of 1986 has been dismissed, even after finding the date of completion of the construction in favour of the landlord with regard to Expln. I of S. 2(1), on the ground that the tenancy consisted of two distinct tenements and it could not have been terminated legally through a single notice under S. 106 of the T.P Act nor could the ejectment of the defendant be sought from the tenements in a single suit. The finding in respect of default has been returned in favour of the tenant.
31. Sri K.N Tripathi, for the plaintiff-landlord, urged that the view in respect of a single notice and a single suit which the trial Judge took was manifestly erroneous in law.
32. The learned Judge has placed reliance upon the decision of this Court in Ram Chandra v. Judge Small Cause Court, 1983 All WC 955 : (1984 All LJ 143). The facts were these:—
33. The tenant, who had come before this Court in a writ petition, was a tenant of two different rooms in the same building, one at the ground-floor at the rate of Rs. 10/- per month for commercial purpose and one on the first floor at the rate of Rs. 25/- per month for residential purpose. These tenancies started from two different dates, namely, the first from the third of every month and the other from the 9th. The tenancies were found to be under two different agreements. A single suit for eviction was filed on the ground of default claiming arrears of rent at the rate of Rs. 35/- per month since the year 1973. The Court below found that the petitioner was in arrears and had not paid the rent. These findings were not challenged before this Court but what was urged was that on admitted facts one suit in respect of two tenancies or two tenements was not maintainable. This Court upheld the plea. The learned Judge (R.M Sahai, J.) who decided the case read the definition of a ‘building’ and of a ‘tenant’ in U.P Act No. 13 of 1972 which was, admittedly, applicable to the building. On the basis of these definitions he felt that the provisions of the Act enable a tenant, after service of notice upon him, to save his tenancy, in case two separate notices had been served upon him in respect of the two tenements claiming Rs. 10/- and Rs. 25/- instead of Rs. 35/-, he could have paid the rent of one to save himself from eviction. The learned Judge also felt that in case the tenant wished to take the benefit of S. 20(4) of the Act it would have been difficult for him to find out the amount to be deposited because the arrears, interest, cost of suit for one would be different from the other tenement.
34. A reading of the decision shows that it turned on its peculiar facts where there was no dispute between the parties that the provisions of U.P Act No. 13 of 1972 were applicable. The decision will have to be confined to its own facts and cannot be treated as laying down a general proposition that it was not possible to terminate the tenancy of two different tenement by a single notice or to seek ejectment of the same tenant from two different tenements belonging to the same owner in one suit.
35. Order II, C.P.C deals with the Frame of suit. Rule 3 of this Order relates to joinder of causes of action. It reads:—
“Joinder of causes of action.— (1) Save as otherwise provided, a plaintiff, may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) ……………..”
36. Under this rule, several causes of action against the same defendant may be united in the same suit by the same plaintiff. This is hardly in doubt after what a Full Bench of this Court said in the case of Ambika Upadhya v. Nakched Upadhya, AIR 1955 All 112 in para 2 of the Report. There were several mortgages. The creditor was the same. The debtor was also the same. Relying upon R. 3 of O. 2 C.P.C, the Full Bench ruled that “the creditor and the debtor being common, there was no bar to the creditor combining the claim for money due under the other four mortgages with the claim under the fifth mortgage……….”
37. In Brij Kishore Jain v. IInd Additional District Judge, Aligarh, 1985 All WC 742 : (1985 All LJ 1256), upon which reliance has been placed by Sri G.P Bhargava, a suit was filed in the Court of Munsif, Koil, Aligarh by the plaintiff for recovery of a total sum of Rs. 9,248/- which included Rs. 5,500/- as the amount of loans covered by different pronotes executed on different dates and Rs. 3,748/- being the amount of interest. The defendant raised a preliminary objection to the maintainability of the suit before the learned Munsif on the ground that the plaintiff ought to have filed four different suits, one in respect of each of the transaction in the court of Judge Small Causes, Aligarh. The preliminary objection was overruled. Eventually, the matter came up before this Court in a writ petition under Art. 226 of the Constitution. The petition was dismissed by saying that the Court of Small Causes was a Court of preferential and not of exclusive jurisdiction. Also, that an objection to the competence of the Court should have been made in the Court of the first instance and that it would have been shown that there had been consequent failure of justice. The learned Judge observed (in paragraph 8 of the Report) that “in the instant case it is not emerging that the petitioner ever raised the objection that in view of the assumption of jurisdiction by respondent 2 there had been a failure of justice”. The decision does not help the contention of Sri Bhargava that a common suit in respect of both the tenements was not maintainable.
38. In Murari Lal Agarwal v. Mithan Lal, 1977 All WC 41 Hari Swarup, J. upheld the plea that termination of three tenancies (three tenements of the plaintiff-landlord) created separately in favour of the same defendant (tenant) by a single notice under S. 106 of the T.P Act was not invalid. This decision does not appear to have been brought to the notice of R.M Sahai, J., nor has he considered the question of the validity of the notice in Ram Chandra's case. The decision of the trial Judge to the effect that termination of the tenancy of the defendants in respect of two distinct tenements by a single notice u/S. 106 of the T.P Act was invalid and that one single suit in respect of the two tenements was not maintainable is not in accordance with law within the meaning of that term in S. 25 of the Provincial Small Cause Courts Act. Therefore, the
Conclusion:
(a) Civil Revision No. 83 of 1986 is allowed. The decree of the trial Judge is set aside. The plaintiffs suit for the ejectment of the defendants shall stand decreed with costs.
(b) Civil Revision No. 390 of 1986 is dismissed with costs. The decree of the trial Judge is upheld.
(c) Civil Revision No. 448 of 1986 is dismissed with costs. The decree passed by the trial Judge is upheld.
39. Order accordingly.