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Chandbai v. Phoolchand
Structured Summary of the Opinion
Factual and Procedural Background
The applicant, Chandbai, filed a suit for ejectment against Phoolchand (the defendant) on three grounds: (1) non-payment of rent; (2) sub-letting of the premises; and (3) genuine requirement of the accommodation as contemplated by section 12(1)(a), (b) and (e) of the M.P. Accommodation Control Act, 1961. Chandbai had purchased the house from the previous landlord in February 1961 and served a notice on the defendant after that transfer seeking termination of the tenancy on those grounds.
The defendant pleaded, among other things, that Chandbai could not rely on the ground of genuine requirement because section 12(4) of the Act precludes a transferee from bringing a suit on that ground until at least one year has elapsed from acquisition.
The trial court treated the issue of genuine requirement as a preliminary issue and decided it in favour of the defendant. The plaintiff (Chandbai) challenged that decision by way of revision. Relevant temporal facts: the M.P. Accommodation Control Act, 1961 came into force on 30-12-61 and the suit was filed on 1-1-62.
Legal Issues Presented
- Whether the genuine requirement for the accommodation existed at the time of the purchase (February 1961), thereby giving the purchaser the right to file or maintain a suit based on that ground.
- Whether a person who acquired the property before the coming into force of the M.P. Accommodation Control Act, 1961 could, without waiting the statutory period of one year specified by section 12(4), go to Court after the Act came into force (i.e., whether the change in the law on the date of filing the suit affects the transferee's right to sue).
- Relatedly, whether the subsequent legislation (Act No. 41 of 1961) took away a substantive or vested right that had accrued before its commencement, or merely postponed the time when the right could be exercised.
Arguments of the Parties
Applicant's (Chandbai's) Arguments
- At the time of purchase (February 1961) there was a genuine requirement for the accommodation, and that right accrued before the M.P. Accommodation Control Act, 1961 came into force; therefore the subsequent Act should not bar the filing or maintenance of the suit.
- On the date when the trial court gave its decision more than one year had elapsed since transfer, so the suit could be maintained at that time.
- The words "maintainable" in section 12(4) should be distinguished from "filing the suit"—the applicant's counsel argued a difference between the bar on starting a suit and a bar on keeping a suit in existence.
- Counsel relied on the decision in Bherusingh v. Rao Kanhaiyalal (1960 MPLJ 49) to support distinctions in statutory wording and their effects on the right to litigate.
Defendant's (Phoolchand's) Arguments
- The plaintiff cannot press the ground of genuine requirement because section 12(4) of the Act requires a transferee to wait at least one year from the date of acquisition before maintaining a suit on the ground of genuine requirement.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State v. Moharsingh, AIR 1955 S.C. 84 | That a repeal without any saving clause would destroy any proceeding not yet prosecuted to a final judgment so as to create a vested right. | The Court cited this authority to explain the general rule that repeal of a statute ordinarily destroys actions dependent on it unless there is a saving; used to contextualize how repeal/savings can affect rights and proceedings. |
| Kannilal v. Udhamal (1957 MPLJ 526) (Newaskar J.) | Quoting a Division Bench of the Nagpur High Court: "Generally an action dependent upon a Statute falls with its repeal, even after the action thereon has been instituted, in the absence of a saving clause. Rights dependent upon a Statute and still inchoate ... are lost by a repeal of the Statute." | The Court relied on this passage to illustrate the effect of repeal on inchoate rights and proceedings, informing its analysis of whether the right to sue on genuine requirement persisted after the 1961 Act. |
| Bherusingh v. Rao Kanhaiyalal, 1960 MPLJ 49 | Distinction between statutory expressions — e.g., "shall proceed" (bar to further progress after institution) and "shall be entitled to bring a suit" (bar to bringing the suit at all). | The Court examined this authority for the applicant's contention that "maintainable" differs from "filed" and concluded that, read carefully, the decision actually supports the proposition that only further progress after institution may be stopped in some wordings; overall the Court found the authority did not support the applicant's position and, in effect, went against it. |
Court's Reasoning and Analysis
The court proceeded by addressing the two central questions identified in the pleadings.
First, on the factual question whether genuine necessity existed at the time of purchase: the trial court made no specific finding on that point. The present court noted that the plaint alleges the necessity existed at the time of purchase and that the acquisition was made because of that necessity. The court emphasized that maintainability or the right to continue a suit depends on the allegations in the plaint even though the ultimate factual result may be otherwise.
Second, on the legal effect of the 1961 Act on rights accrued before its commencement, the court recalled the cardinal principle that a substantive or vested right cannot be taken away by subsequent legislation unless the later statute expressly or impliedly enjoins such deprivation. The court observed that prior to the 1961 Act (and before 31-12-61) a landlord could file a suit on the ground of genuine necessity immediately upon its occurrence; the 1955 Act contained no restriction of the kind introduced in section 12(4) of the 1961 Act. Section 51 of the 1961 Act repealed the 1955 Act but contained a saving clause preserving pending suits under the 1955 Act to be continued and disposed of as if the 1955 Act were still in force.
The court then reconciled two strands of reasoning:
- On one view, the right to sue for genuine requirement existed prior to the 1961 Act and was not extinguished; what the 1961 Act did was postpone the time when that right could be exercised (i.e., a temporal limitation rather than a complete deprivation).
- On the other view, a holistic reading of the 1961 Act, particularly section 12(1)(e) read together with section 12(4), indicated that the legislature intended to curtail the right of transferees to pursue eviction on the ground of genuine requirement until one year had elapsed. The Act prescribes procedural conditions for a landlord to go to Court; those conditions applied on the date the suit was filed (1-1-62).
The court analysed the linguistic difference between "no suit shall be filed" (a bar on instituting proceedings) and "no suit ... shall be maintainable" (a bar on continuing proceedings). While acknowledging that the phrases are formally different, the court concluded that in practice the distinction is of little consequence because a suit that is not maintainable becomes, for practical purposes, dead immediately upon filing. The court relied on Bherusingh v. Rao Kanhaiyalal to examine such distinctions but found that authority did not support the applicant's contention; indeed, that decision, properly read, tended against the applicant's argument.
Applying these principles to the facts, the court held that the ground of genuine requirement was "dead" immediately upon filing of the suit on 1-1-62 because section 12(4) barred maintenance of such suits by a transferee within one year. A suit based on that ground therefore could not remain in existence or be agitated in the suit; the preliminary issue decided by the trial court in favour of the defendant was thus correct.
Holding and Implications
Holding: The revision petition is dismissed with costs. (Final line: "Revision dismissed.")
Implications:
- Direct effect on the parties: the plaintiff cannot maintain or agitate the ground of genuine requirement in the present suit because section 12(4) of the M.P. Accommodation Control Act, 1961 bars maintenance of such a suit by a transferee until one year has elapsed from acquisition. The trial court was justified in deciding the preliminary issue in favour of the defendant.
- The court treated the restriction in section 12(4) as a procedural curtailment that operates on the time when a suit may be prosecuted; a suit that is not maintainable under that provision is effectively dead upon filing.
- No new precedent was laid down beyond applying established principles concerning repeal, saving clauses, and the effect of procedural bars—i.e., the decision applies statutory interpretation principles to the facts but does not claim to create a novel legal rule beyond those applications.
Costs: revision dismissed with costs; counsel's fee according to scale, if certified.
(1.) Chandbai, the present applicant filed a suit for ejectment against Phoolchand, the non-applicant on three grounds:(1) Non-payment of rent; (2)sub-letting of the premises, and (3) genuine requirement of the accommodation as mentioned in section 12 (1) (a) (b) and (e) of the accommodation control act of 1961.
(2.) The house was purchased by Chandbai from previous landlord of the defendant in February 1961. A notice was given after the transfer to the defendant for terminating the tenancy on the grounds mentioned above.
(3.) The defendant contended amongst other pleas that the plaintiff cannot be allowed to press the ground of genuine requirement in view of section 12 (4) of the Act. According to him the transferee has to wait for a year at least before he could maintain a suit on the ground of genuine requirement.
(4.) The trial Court tried the issue regarding genuine requirement as preliminary issue and has held it in favour of the defendant. The plaintiff has now come up in revision.
(5.) It may be mentioned here that the M. p. Accommodation Control Act, 1961 came into force on 30-12-61 and the suit was filed on 1-1-62, The counsel for the applicant contends that when he had purchased the house in February 1961 there was no bar for filing a suit on the ground of genuine requirement and as that right had accrued previous to the coming into force of the M. P. Accommodation Control Act of 1961 there cannot be any bar for his filing the suit or maintaining the same.
(6.) This involves two questions. One is whether the genuine requirement existed at the time of purchase thereby giving her the right to file or maintain a suit. This question however was not discussed by the trial Court nor does it seem to have been pressed there. The point however remains whether the plaintiff who had purchased the property before coming into force the M. P. Accommodation Control Act of 1961 has a right to go to the Court without waiting for the statutory period of one year not considering the change in the law on the date of filing the suit.
(7.) On the date when the trial Court gave a decision the suit could be maintained as it was more than one year after the date of transfer. Therefore when the suit was alive the trial Court should not have dismissed the suit on this ground. At that time, suit could be maintained, the plaintiff contends.
(8.) As regards the first question that there was a genuine necessity on the date when the plaintiff purchased the house, there is no finding. But the plaint allegations mention that the necessity existed and that is why the house in suit was purchased. The maintainability or the right to continue the suit depends on the allegations in the plaint and though ultimate result may be otherwise. The necessity therefore existed at the time when the house was purchased i.e. before the Act of 1961 came into force. The question therefore is whether the subsequent Act can take away this right.
(9.) It is a cardinal principle of interpretation of Statutes that a substantive right or a vested right cannot be taken away by a subsequent legislation, unless the subsequent legislation expressly or impliedly enjoins.
(10.) It is true that section 12 (4) of the Accommodation Control Act,1961 did not exist in any of the Statutes before this Act came into force and before 31-12-61 a landlord could file a suit on the ground of genuine necessity immediately the necessity occurred irrespective of the fact that the landlord has come as a transferee within one year of the filing of the suit. Accommodation Control Act of 1955 provided no such restriction. This 1955 Act was however repealed by section 51 of Act of 1961.
(11.) Section 51 reads as follows:-
"(1) The M. P. Accommodation Control Act 1955 is hereby repealed. (2) Notwithstanding such repeal, all suits and other proceedings under the said Act, pending, at the commencement of this Act, before any Court or other authority shall be continued and disposed of in accordance with the provisions of the said Act as if the said Act had continued in force and this Act had not been passed and the provisions for appeal under the said Act shall continue in force in respect of suit and proceedings disposed of thereunder."
(12.) In State v. Moharsingh(AIR 1955 S.C. 84) it has been observed:-
"A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of the repealing Act and not already prosecuted to a final judgment so as to create a vested right."
(13.) In Kannilal v. Udhamal (1957 MPLJ 526) Newaskar J. quoted with approval following observations made by a Division Bench of the Nagpur High Court in Second Appeal No. 312 of 1948.
"Generally an action dependent upon a Statute falls with its repeal, even after the action thereon has been instituted, in the absence of a saving clause. Bights dependent upon a Statute and still inchoate, that is not perfected by a final judgment, are lost by a repeal of the Statute."
(14.) In the present case the right of filing a suit on the ground of genuine need existed but that right before it was put into action was hazed up by limitation. The right has not been taken away. The right still exists; only a particular time has been allotted before which right could be exercised. Therefore it cannot be said that the right has been taken away. What has been done is that it has been postponed to a future date. Therefore it cannot be said that subsequent legislation has taken away that right.
(15.) Even then according to me the provisions of subsequent Act viz. Act No. 41 of 1961, if read as a whole, shows that if they had the right before the Act came into force it has been taken away by proper interpretation of of the section. The right to sue is given in section 12 (e) on the ground of genuine requirement but that right is curtailed by the conditions mentioned in section 12 (4) which says that no suit is maintainable under section 12 (1) (e) by a transferee unless a period of one year has elapsed from the date of the acquisition. Section 12 therefore has to be read together. It is a procedural right so far as time of filing the suit is concerned. The procedural right can be taken away at any time even when the litigation is pending. Chapter III of the Act under which section 12 comes deals with "Control of eviction of tenant." It prescribes the mode by which a landlord can go to Court. If any person wants to go to Court under this provision he has to follow the procedure laid down and can file a suit under those conditions. Therefore if a suit has to be filed it has to be filed by following those provisions. On the date when the suit was filed this provision of section 12 (1) (e) and 12 (4) came into existence. So if a person wants to file a suit under the accommodation control act he has got to file a suit by following those conditions.
(16.) The learned counsel has contended that the ward 'Maintainable' appearing in section 12 (4) should be distinguished from the words 'filing the suit.' It is true there is a difference between the two words 'filing a suit' and 'maintaining a suit' if maintaining means to keep in existence.
(17.) The learned counsel for the applicant placed reliance on a decision of this Court in Bherusingh v. Rao Kanhaiyalal(1960 MPLJ 49) in which my learned brother Newaskar J. made a distinction between the two Acts, M. B. Money Lenders Act and M. P. Money Lenders Act. In that case his Lordship was discussing a difference between the two Acts. In the M. P. Act the words used were 'shall proceed' whereas in the M. B. Act in place of the above expression the words 'shall be entitled to bring the suit' are used. His Lordship opined that there is a difference between the two clauses.
(18.) There cannot be doubt on this question. "Shall proceed" means shall go on while in the words "No moneylender shall be entitled to bring a suit" bar is against bringing of the suit. In one case it is the further progress after the institution that is barred and in other case no suit can be instituted. In fact if we carefully read this judgment, we find that it goes against the contention of the applicant as his Lordship has remarked "it is only further progress after its institution which is stopped".
(19.) I agree that in S. 12 (1) the words used are that no suit shall be filed, whereas in S. 12 (4) the words used are "no suit for the eviction of a tenant shall be maintainable". There is a difference between these two. Strictly speaking the first expression means one cannot go to the Court at all and the other is if one goes to the Court he cannot support his contention or keep it in existence. The Dictionary meaning of the word "maintainable" given in the Oxford Universal Illustrated Dictionary, 3rd Edn., is "to continue, preserve, to carry on, to keep up". These phrases are undoubtedly different from the words "no suit shall be filed". There is always a difference between starting an action and maintaining the same. section 12(1) is a bar for starting an action whereas section 12 (4) is a bar for continuing the same. But in practice it makes very little difference. One cannot maintain the suit, means one cannot continue the suit after he has filed it and the suit becomes dead immediately after it has been filed.
(20.) Therefore, the argument that on the date when the Court passed the order more than one year had elapsed will not be available to him. One cannot continue a thing which is already dead. Dead man cannot be given a life. Though it is one of the grounds on which he seeks ejectment but this ground is dead immediately after the filing of the suit on 1-1-62. A litigant after filing a suit maintains the same if he does not withdraw it. It is therefore clear that on the next day he illegally maintained the suit. That is prohibited under the law. Therefore a suit which is based on this ground cannot remain in existence.
(21.) I have already mentioned that genuine requirement is only one of the grounds, therefore the suit cannot be maintained on this ground and it cannot be agitated in the suit.
(22.) It is further agitated that as one year has elapsed he had a right to apply for an amendment, assuming the ground for genuine requirement could not be corporated originally. If such an amendment is made certainly many considerations would arise and it is not proper for me to discuss that question at this stage. The Court was therefore justified in holding the preliminary issue in favour of the defendant.
(23.) The result is the revision petition is dismissed with costs. Counsel's fee according to scale, if certified. Revision dismissed. BHARAT.
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