R.D Ram Nath & Co. And Another v. Girdhari Lal And Another

N.D Ojha, J.:— This second appeal arises out of a suit for arrears of rent, damages and ejectment. The defendants are the appellants. During the pendency of the second appeal the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P Act No. 13 of 1972) (hereinafter referred to as the Act) was enacted and by Sec. 43 of the Act the U.P (Temporary) Control of Rent and Eviction Act 1947 was repealed. The appellants made an application claiming the benefit of Sec. 39 read with Sec. 40 of the Act. They made an application on 10th of July 1973 for permission to deposit a sum of Rs. 5,000/- which, according to them, was the amount liable to be deposited by them under Sec. 39/40 of the Act. An order was passed on the same day permitting the said amount to be deposited within two days. The deposit was made on 11th July 1973 in this Court. In this application it was also stated that the appellants had already deposited the amount contemplated by Sec. 39/40 of the Act in the trial court within a month from 15th July 1972 which is the date on which the Act came into force. It was further stated that since the case of the plaintiffs-respondents was that the construction of the accommodation in question was completed or 12th of June 1963, it had become necessary to make a deposit in this Court also in as much or the assertion of the plaintiff-respondents and in view of Sub-sec. (2) of Sec. 2 of the Act it could be argued that the commencement of the Act for the purposes of this case was 12th of June 1973 and a deposit had to be made within a month of that date as contemplated by Sec. 39 thereof.

2. The appeal came up for hearing before a learned Single Judge and in view of the various submissions made for the parties the following questions were referred for decision by a Division Bench:

(1) Whether in case of an appeal or revision the deposit contemplated by Sec. 39 of the Act has to be made in the appellate or revisional court where the appeal or revision is pending or its deposit even in the trial court would amount to a substantial compliance of the said section?

(ii) What would be the date of commencement of the Act for purposes of Sec. 39 of the Act namely, whether it would be 15th July 1972 or the date on which the provisions of the Act become applicable to the building in respect of which the suit for ejectment is pending? and

(iii) What amount would represent the ‘full cost of the suit’ in respect of a pending suit and in respect of a pending appeal or revision?

3. Learned counsel have made their submissions on question No. 2 first and accordingly, we propose to deal with the said question at the outset. It would be useful to quote Secs. 39 and 40 at this place:

Sec. 39. Pending suits for eviction relating to buildings brought under, regulation for the first time. In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit whichever be later, deposits in the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same, rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's full cost of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to Sub-sec. (1) or in clauses (b) to (g) of Sub-sec. (2) of Sec. 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary:

Provided that a tenant the rent payable by whom does not exceed twenty-five rupees per month need not deposit any interest as aforesaid.”

4. Section 40 reads:

“Sec. 40. Pending appeals in suits for eviction to buildings brought under regulation of the first time, Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of Sec. 30, which shall mutatis mutandis apply.”

5. It is not disputed that the Act came into force on 15th July 1972 Sub-sec. (2) of Sec. 2 of the Act is to the effect that except as provided in Sub-sec. (2) of Sec, 24 or Sub-sec. (3) of Sec. 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. The explanation attached to the sub-section is not relevant for our purpose. Question No. 2 referred to us arises in view of the conflicting arguments raised for the parties. The case of the defendants-appellants has been that the words ‘commencement of this Act’ in Sec. 39 referred to the date on which the provisions of the Act became applicable to the building concerned whereas the case of the plaintiffs-respondents, has been that these words mean the date on which the Act came into force, namely, 15th July 1972. A similar question arose for consideration before a Division Bench of this Court in Hazari Lal…(Defendant); v. Kanhaiya Lal…(Plaintiff). A.I.R 1953 All. 686 D.B.. In that case interpretation of Secs. 14 and 15 of U.P (Temporary) Control of Rent and Eviction Act 1947 was involved. The said section were to the following effect:

“14. Execution, of pending decrees for eviction. No decree for the eviction of tenant from any accommodation passed before the date of commencement of this Act shall, in so far as it relates to the eviction of such tenant, be executed against him as long as this Act remains in force, except on any of the grounds mentioned is Sec. 3.

Provided that the tenant agrees to pay to the landlord (reasonable annual rent) or the rent payable by him before the passing of the decree, whichever is higher.”

“15. Pending suits for eviction—In all suits for eviction of a tenant from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in Sec. 3.”

6. In view of its Sub-sec. (3) of Sec. 1 that Act was deemed to have come into force on the first day of October 1946. In Hazari Lal's case the suit was filed on 10th May 1947 for ejectment from a shop situate in the town of Raya. It was the common case of the parties that at the time when the said suit was filed the U.P (Temporary) Control of Rent and Eviction Act had not been extended by notification of the State Government to apply to the town of Raya. The question arose as to whether for purposes of the said suit the commencement of the Act would be first of October 1946 or the date on which the Act was extended to apply to the town of Raya. It was held—

“The whole point for decision, therefore, is whether the words “the date of the commencement of this Act” in Sec. 15 mean the original date when the Act came into force or the date when the Act was made applicable to a particular area…………….

7. The point was, however, carefully considered by a division, bench of this Court in L. Kedar Nath…Defendant- v. L. Kishan Lal…Plaintiff-. A.I.R 1952 All. 500.. Mr. Bind Bashni Prasad, J. after having carefully considered the previous authorities on the point came to the conclusion that to areas to which the Act was subsequently made applicable the date of commencement of the Act within the meaning of Sec. 15 must be the date when the Act was so extended by notification. Learned counsel has urged that the decision of the bench in Kedar Nath's case, should be reconsidered by a larger bench. We have, therefore, heard him at some length and we are not satisfied that there is any reason to differ from the conclusion “arrived at in—Kedar Nath's case.”

8. The Bench took into consideration the circumstance that the aforesaid Act was intended for the benefit of tenants in view of the shortage of housing accommodation in the State and took the view that it must be interpreted so as to carry out the intention of the Legislature and to give protection to the tenants for whose ejectment decrees had either already been passed or proceedings for whose ejectment were pending either in the trial court or in a court of appeal. It was pointed out that the aforesaid object of granting protection to all the tenants could only be achieved if it was held that Secs. 14 and 15 would govern the decrees already passed and all suits instituted upto the date to which Sec. 3 came into effect so as to govern all suits instituted thereafter and in this view of the matter the date of the commencement of the Act mentioned in Secs. 14 and 15 must be the date on which Sec. 3 of the Act came into operation so as to govern suits instituted thereafter. The date of the commencement of the Act for purposes of Secs. 14 and 15 must, therefore, be the date on which the Act became applicable. It was further held:—

“On the interpretation-sought to be put on the words “Commencement of the Act” in Secs. 14 and 15 by learned counsel for the plaintiff, Sec. 3 would only govern suits instituted on or after the date on which the Act became applicable whereas Secs. 14 and 15 would govern decrees passed before 1-10-1946 or suits pending on that day. The result would be that decrees passed between 1-10-1946 and 1-3-1947, in the case of areas to which the Act was made applicable as soon as published under Sub-sec. (2) of Sec. 1, and suits instituted after 1-10-1946, and before 1-3-1947 arising out of the said areas would not be governed by the provisions of Secs. 14 and 15. Similarly, in other areas to which the Act might be applied later by a subsequent notification, decrees passed between 1-10-1946, and the date on which the Act was applied as well as suits instituted between two dates would not be governed by these sections. Of course, Sec. 3 can, in no case, govern these decrees and suits. There might be cases where a suit might have been instituted after 1-10-1946, and decided on some day prior to the date on which the Act became applicable to the area from which that suit arose and such decrees would also not be governed by the provisions of the Act at all. It is clear that the legislature could never have intended to create discrimination between various tenants and to grant no protection at all to those tenants against whom suits were instituted after 1-10-1946, and which were either decreed before or were still pending on the date on which the Act was applied to the area from which the suit arose. The interpretation that would create such an anomalous position must, therefore, clearly be ruled out.

9. The words “commencement of the Act” in Secs. 14 and 15 with reference to a particular area must be interpreted to mean the date on which the Act became applicable to that area. This is the only interpretation that would effectively serve the purpose of the Act.”

10. In our opinion similar is the situation in the instant case too. Here again the Act is a beneficent piece of legislation and was intended for the benefit of tenants in view of the shortage of housing accommodation in the State. If the words “commencement of the Act” used in Sec. 39 are interpreted to mean the date on which the Act came into force i.e 18th July 1972 the protection granted by Sec. 39 would be available only to the tenants of such buildings which were constructed after the 1st day of January 1951 and before 14th August 1962. It is only such tenants who could make the required deposit before 15th of August 1972 namely, one month from the date on which the Act came into force. As pointed put in Hazari Lal's case there seems to be no good ground to take the, view that the Legislature intended to create such a discrimination between various tenants and to grant protection only to the tenants of the class of buildings referred to above and not to those who were tenants of buildings which were constructed after 14th August 1962 and to which buildings the Act became applicable on the expiry of ten years from the date of the completion of the buildings within the meaning of Sub-sec. (2) of Sec. 2 of the Act.

11. The decisions in Hazari Lal's case was mainly given keeping in view the beneficent purpose of legislation. The question came up for consideration before the Supreme Court in another context in K. Manickchand v. Elias Saleh Mohammed Sait 1969 1 SCC 206. In paragraph 18 of the report, after referring to the definition of ‘commencement’ as contained in Sec. 3(13) of the General Clauses Act, it was held:

“Obviously, an Act can only commence in a particular area on the date on which that Act comes into force in that area. The mere fact that it was in operation in other areas will not result in the Act having commenced in the area where it had not yet been applied. In this connection, notice may be taken of the language of Sub-sec. (3) of Sec. 5 of the General Clauses Act where it is laid down that “unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement”.

12. This Sub-section clearly indicates that there is a distinction between an Act coming into operation, and the commencement of the Act. The date of coming into operation is not necessarily the date of commencement. In interpreting Sec. 2(3)(b) and (c) of the Act, we are concerned with the expression “commencement of the Act”, and not with “coming into operation of the Act”. In view of the definition of ‘commencement’ given in Sec. 3(13) of the General Clauses Act which applies to this expression as used in the Act, it has to be held that the commencement of the Act for the purposes of the present suit must be held to be the date on which the Act came into force in Bangalore Civil and Military Station and, consequently, only 1st April, 1937 and not earlier.”

13. The only distinction in the cases referred to above and in the instant case is that in the aforesaid cases the Act was made applicable subsequently to an area whereas in the instant case the applicability is in regard to buildings with reference to their date of construction. In our opinion this distinction is of no consequence and the principles laid down in the cases referred to above squarely apply to the interpretation of the: words “commencement of the Act” in Sec. 39 of the Act.

14. Learned counsel for the plaintiffs-respondents, however, brought to our notice the fact that Sec. 39 as stood initially contained an explanation which reads “In this section and in Sec. 40, the expression date of commencement of this Act”, in relation to a building, means the date on which this Act becomes applicable to that building.” It was pointed out that the aforesaid explanation was omitted, by Sec. 8 of the Uttar Pradesh Civil Laws Amendment Act 1972 (Act No. 37 of 1972). It was urged that in view of the explanation it was possible to give a wider meaning to Sec. 39 and by the circumstance that the Legislature subsequently omitted the explanation it must be inferred that its intention was not to give under meaning to the words “commencement of this Act” in Sec. 39. We are, however, unable to agree with the submission.

15. In Rihta Co-operative Development and Cane Marketing Union Ltd. v. Bank of Bihar A.I.R 1967 S.C 389., it was held:—

“The Explanation must be read so as to harmonise with and clear up any ambiguity in the main section. It should not be so construed as to widen the ambit of the section.”

16. It cannot, therefore be said that the purpose of the Explanation was to widen the ambit of the section. Its only purpose could have been to harmonise with and clear up any ambiguity in the main Section. In our opinion in view of the decision of the Supreme Court in Manickchand's case, it cannot be said, that there was any ambiguity in Sec. 39 which required any explanation so as to harmonise and clear up the said ambiguity. The Legislature must have considered the explanation as superfluous and omitted it on that score. We perused the statement of objects and reasons contained in the Bill of the Amending Act aforesaid but it rendered no assistance on the point whatsoever. In our opinion, therefore, the fact that the explanation was subsequently omitted is not of any, consequence.

17. As already pointed out above there is no ambiguity in Sec. 39. Even if there was an ambiguity it is a settled principle of rule of interpretation of a beneficent piece of legislation that in case there is an ambiguity the construction which advances the beneficent purpose should be accepted in preference to the one which defeats that purpose and if there is any doubt that doubt should be resolved in favour of the person for whose benefit the Act was passed. See Mahadeolal Kanodia v. Administrator-General Of West Bengal A.I.R 1960 S.C 936. and Jivabhai Purshottam v. Chhagan Karson A.I.R 1961 S.C 1491..

18. The words “commencement of this Act” in Sec. 39 must, therefore, mean the date on which the provisions of the Act became applicable to the building in respect of which the suit for ejectment is pending.

19. Coming to question No. 1 it would be seen that so far as the pendency of a suit is concerned there appears to be no difficulty. The required deposit has to be made within the prescribed period in the court before which the suit is pending. The difficulty arises, as has arisen in the instant case, when the suit is pending not in the trial court but in the appellate or revisional court. By virtue of Sec, 40 of the Act the provisions of Sec. 39 in regard to a suit would apply mutatis mutandis to pending appeals or revisions. What is the scope of matutis mutandis is the real question. The expression “mutatis mutandis” means “with the necessary changes in points of details”. See Bhutnath Das v. State of West Bengal A.I.R 1964 Cal. 552.. Wherever the word ‘suit’ occurs in Sec. 39 the word ‘appeal’ or ‘revision’, as the case may be, can be substituted. The words, “land-lord's full costs of the suit” would mean full costs of the suit which will include costs of appeal, second appeal or revision, as the case may be. If so construed, the amount contemplate ed by Sec. 39 would have to be deposited within one month of the commencement of the Act in cases of appeal or revision in the court before which the appeal or revision is pending. That seems to be the correct interpretation of the plain language of the section.

20. Learned counsel for the appellants, however, urged that the provision in Sec. 39 in so far as it related to the court in which the amount was to be deposited was not mandatory but only directory. It was urged that the purpose which is aimed at in getting the deposit made of the amounts mentioned in Sec. 39, is to ensure payment to the land-lord of his upto date dues including interest and costs and if the said amount is deposited not in the appellate or revisional court but in the trial court, there would be substantial compliance and the purpose of the Act would not in any way be defeated. On the other hand, reliance was placed by learned counsel for the plaintiff-respondents on the decision of a learned Single Judge of this Court in Bijai Bahadur v. Mahabir Prasad 1972 A.W.R 747. where it was held that in case of appeal or revision the deposit is to be made in the court where the appeal or revision was pending and not in any other court. As already pointed out above, the expression mutatis mutandis means ‘with necessary changes’. In Corporation of Calcutta v. Sirajuddin A.I.R 1957 Cal. 399. it was held by Chakravartti, C.J—

“When a law directs that a provision made for a certain type of case shall apply mutatis mutandis in another type of case, it means that it shall apply with such changes as may be necessary, but not that even if no change is necessary, some change shall nevertheless be made.”

21. In the same case Guha Ray, J., held:—

“The expression ‘mutatis' mutandis’ is an adverbial phrase qualifying the verb ‘shall apply’ and meaning ‘those changes being made which must be made’.”

22. Learned counsel for the appellants referred to K. Kamraja Nadar v. Kunju Thevar A.I.R 1958 S.C 587. and Chandrika Prasad v. Shiv Prasad A.I.R 1959 S.C 827. where it was held that the words “in favour of the Secretary to the Election Commission” in Sec. 117 of Representation of the People Act 1951 were directory and not mandatory. Sec. 117 aforesaid is a provision relating to the deposit of security for the costs of the petition. When a petitioner presents an election petition he is to enclose with the petition a Government Treasury receipt showing that the requisite amount of security has been deposited by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition. Their Lordships in the case of K. Kamraj Nadar pointed out that if, for instance, the petitioner made the deposit in favour of the Election Commission itself in place of in favour of its Secretary could if be said that the requirement of Sec. 117 had not been complied with. In this background it was held that the words in favour of the Secretary to the Election Commission could not be treated as mandatory but were only directory. It would, however, be noticed that the provision that the deposit was to be made either in the Government Treasury or in the Reserve Bank of India, was treated as mandatory. It was held that what is the essence of the provision contained in Sec. 117 is that the petitioner should furnish for the costs of the petition and should enclose along with the petition a Government receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India.

23. In Chandrika Prasad's case the rule laid down in the case of K. Kamraj Nadar was followed.

24. In Senior Superintendent, R.M.S Cochin v. K.V Gopi Nath 1973 3 S.C.C 867. it was held that if the precise, words used are plain and unambiguous, the Court is bound to construe them in their ordinary sense.

25. In V.D Jhingan v. State Of Uttar Pradesh A.I.R 1958 S.C 107., it was held that in construing the provisions of a statute it is essential for a court, in the first instance, to give effect to the natural meaning of the words used therein, if those words are clear enough.

26. In our opinion, the only changes which are necessary to be made in Sec. 39 in regard to its applicability to appeals or revisions are those which have already been pointed out above. It would be stretching the scope of mutatis mutandis too wide to interpret the word ‘the court before which the suit is pending’ with reference to the pendency of an appeal or revision to mean the trial court and not the court before which the appeal or revision is pending. The benefit of Sec. 39, namely, that no decree for eviction shall be passed on the deposit being made except on any of the grounds mentioned therein, can be given to the tenant only by the court before which the case is pending. If it is the stage of suit it is the trial court. If, on the other hand, the case is pending before the appellate or revisional court, it is that court on which a duty is cast not to pass a decree for eviction except in the circumstances mentioned in Sec. 39. No decree for eviction is to be passed only if the necessary deposit has been made within the prescribed period. Whether the necessary deposit has been made within the prescribed time would be one of the questions which the court will have to take into consideration before dismissing the suit, for eviction. The court on which a duty has been cast not to pass a decree for eviction would be in a better position to ascertain whether the necessary deposit has been made within the prescribed period if the said deposit is made in that very court. This may have been the purpose of making a provision for the deposit in the court before which the suit is pending which, with reference to appeal or revision, would, as pointed out above, mean the court before which the appeal or revision is pending.

27. It was urged by learned counsel for the appellants that there may be cases in which the rent or damages for use and occupation contemplated by Sec. 39 including the costs of the suit, or of first appeal, may have been deposited in the trial court in pursuance of an order passed by the appellate or revisional court, and on the interpretation that the deposit has to be made before the appellate or revisional court the tenant would be required to deposit the same amount twice over in the appellate or revisional court. In our opinion, this apprehension has no substance. Sec. 39 contemplates deposits of only such amount which have not already been either paid to the landlord or deposited in a court either in pursuance of some statutory provision entitling the tenant to make such a deposit or in pursuance of an order of court. If any of the amounts mentioned in Sec 39 have already been paid to the landlord that amount is not due and no question of depositing it can arise. Likewise, if any amount contemplated by Sec. 39 has been deposited in a court either in pursuance or some statutory provision entitling the tenant to make such deposit or in compliance with an order of Court, such amount will also not be due and will not have to be deposited again, in the appellate or revisional court. Only such amount referred to in Sec. 39 would have to be deposited within one month of the commencement of the Act in the appellate court or revisional court, which had, neither been paid to the landlord nor deposited in the manner stated above in court before the commencement of this Act and remains payable by the tenant on the date of commencement of the Act which he would be bound to deposit within one month of the commencement of the Act in the appellate or revisional court.

28. In regard to question No. 3 it was urged by learned counsel for the appellants that the word ‘full’ in the expression ‘full costs of the suit’ was very vague in as much as when the suit, appeal or revision was still pending it is not possible to ascertain as to what would be the full costs of such proceedings. Learned counsel tried to elaborate his submission by giving an illustration. It was pointed out that suppose on the date of the commencement of the Act the suit was at the stage when not even written statement had been filed. It would not be possible to ascertain at that stage as to whether the defendant would contest the suit or not and even if he would contest the suit how many witnesses will be examined by the plaintiff and what would be the costs incurred by him in prosecuting the suit.

29. At that stage it would be impossible to deposit any such amount which could be equated with the full costs of the suit. In our opinion, the words ‘full costs of the suit’ have to be given a harmonious construction.

30. It is an axiom that the law does not seek to compel a man to do that which he cannot possibly perform—Lex non co. git ad impossibilis. In our opinion, the expression ‘full costs’ in Sec. 39 refers to such costs as can be ascertained on the date of the deposit with reference to the material on record and the Rules of the Court. The amount of court lee paid on the plaint and on the memorandum of appeal or revision and on other documents and other taxable expenses incurred by the landlord by the date of deposit together with such amount of the advocates fee including the fee of his clerk as is taxable on the contested scale, whether any certificate of fee has or has not been filed by the date of deposit, would, in our opinion represent ‘full costs of the suit’ within the meaning of Sec. 39 of the Act.

31. In view of the foregoing discussion, our answers to the questions referred to us are:

(i) In the case of an appeal or revision the deposit contemplated, by Sec. 39 of the Act has to be made in the Court where the appeal or revision is pending.

(ii) The date of commencement of the Act for purposes of Sec. 39 of the Act would be the date on which the provisions of the Act become applicable to the building in respect of which the suit, for ejectment is pending.

(iii) The expression ‘full costs of the suit’ in respect of a pending suit will represent the amount of court fee paid on the plaint and on other documents and other taxable expenses incurred by the landlord by the date of deposit together with such amount of the Advocate's fee and the fee of his clerk as is taxable on the contested scale whether any certificate of fee has or has not been filed by the date of deposit.

32. In case of a first appeal or revision filed against a decree or order of the trial Court it will represent the costs awarded to the landlord in the decree or order, together with the amount paid as court fee on the memorandum of appeal or revision and other documents and other taxable expenses incurred in the first appellate or revisional Court including the Advocate's fee and the fee of his clerk which are to be computed in the manner stated above.

33. In case of second appeal or revision filed against a decree of order of the first appellate or revisional Court it will represent the costs awarded to the landlord in the decree or order of the trial Court as well as the first appellate or revisional Court together with the amount paid towards court fee on the memorandum of appeal or revision and on other documents and other taxable expenses incurred in the second appellate or revisional Court including the Advocate's fee and the fee of his clerk which are to be computed in the manner stated above.

34. The appeal may now be listed before the single Judge with this opinion.

35. Questions answered.