Appeal No 5899 of 1983
From the Judgment and Order dated 13483 of the Bombay High Court in SA No 46 of 1983
VA Bobde and AK Sanghi for the Respondent
The Judgment of the Court was delivered by NP SINGH J
The defendant in a suit for eviction is the appellant before this court
The suit plot was let out to the appellant as a monthly tenant for an automobile garage
The plaintiff respondent hereinafter referred to as the respondent issued a notice on 1071975 determining 170 the lease in favour of the appellant with effect from 3171975
Later the suit in question was filed
As the suit premises had not been let out for residential purposes it was an admitted position that the Central Provinces and Berar Letting of Houses and Rent Control Order 1949 was not applicable
The Trial Court dismissed the said suit on a finding that as the appellant was using the suit premises for manufacturing purposes a six months  notice was required before the lease could be determined and as the notice issued to the appellant under section 106 of the Transfer of Property Act hereinafter referred as the Act had purported to deter mine the tenancy with 15 days  notice the suit in question could not have been filed
On appeal being filed on behalf of the respondent the Assistant Judge came to the conclusion that the premises in question had not been let out for any manufacturing purpose but for a motor workshop and as such the notice under section 106 of the Act was valid and the respondent was entitled to the possession of the plot in dispute
The second appeal filed on behalf of the appellant was dismissed in limine by the High Court saying that no substantial question of law was involved
Before this Court the finding recorded by the court of appeal below and affirmed by the High Court that the respondent was entitled to a decree for possession and the appellant was liable to be evicted was not questioned
A new stand was taken on behalf of the appellant that in view of the subsequent events the aforesaid decree of eviction passed against the appellant cannot be given effect to
It was pointed out that by CP and Berar Letting of Houses and Rent Control Second Amendment Order 1989 a new clause 13A has been introduced in the said Order
The new clause 13A is as follows 13 A No decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any court or before any Authority unless the landlord produces a written permission of the Controller as re quired by sub clause 1 of clause 13
 Leave to appeal was granted by this Court on 1st August 1983 and clause 13A has been introduced in the year 1989 during the pendency of the present appeal
By that very amending Order the definition of premises given in the original Order has also been amended and the said 171 definition after amendment includes not only building but even land not being used for agricultural purposes
if the definition of the Premises which has been amended had been in force on the date of the filing of the suit then the respondent had to pursue the procedure prescribed for eviction in accordance with the provisions of the Order aforesaid instead of filing a suit after service of notice under section 106 of the Act
There is no dispute that the amendment has not been introduced with retrospective effect and it is only prospective in nature
As the suit premises is only land and not a building when the suit was filed steps for eviction of the appellant could not have been taken in accordance with the provisions of the Order aforesaid because then those provisions were not applicable
But the stand of the appellant is that although clause 13A has been introduced not with retrospective effect still it shall be applicable to proceedings pending before any Court including this Court and in view of the bar imposed by said clause 13A no decree for eviction can be passed by this Court in the present appeal against the appellant unless the respondent landlord produces a written permission of the Controller as required by sub clause 1 of clause 13 of the Order
Reliance was placed on the case of H Shiva Rao vs Cecilia Pereira  wherein it was pointed out by this court  It is well settled legal principle that Rent Control legislations being beneficial to the tenant have to be given a liberal interpretation
While ordinarily substantive rights should not be held to be taken away except by express provision or clear implication in the case of Rent Control Act it being a beneficial legislation the provision which confers immunity to the tenant against eviction by the landlord though prospective in form operates to take away the right vested in the landlord by a decree of a court which has become final unless there is express provision or clear implication to the contrary
 It appears that in the aforesaid case the judgment was passed for possession of the premises in question on August 27 1970
Thereafter execution proceedings were initiated
During the pendency of the execution proceedings the village in which the suit premises was situated was included within the Mangalore Municipality by amendment of the Karnataka Rent Control After issuance of the notification the provisions of the aforesaid Rent Control Act became applicable even to the suit premises during the pendency of the execution
An objection was taken on behalf of the tenant that in view of sub section 1 of section 21 of the Act aforesaid the decree passed in the connected suit was not executable
Sub section 1 of section 21 provided Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant
 So far the aforesaid case is concerned once the provisions of the Karnataka Rent Control Act became applicable during the pendency of the execution proceedings the bar imposed on the Court from passing an order for recovery of possession of any premises in favour of the landlord became applicable
But clause 13A with which we are concerned is only in respect of passing a decree for eviction and not an order for recovery of the possession of any premises
If even in clause 13A a bar had been placed in respect of recovery of possession of any premises then there was no difficulty in accepting the contention raised on behalf of the appellant and holding that although there is a decree for eviction in favour of the respondent but as in the meantime a bar has been placed on recovery of the possession of the premises the decree became unexecutable
Reference was also made to the case of Ms East India Corporation Ltd vs Shree Meenakshi Mills Ltd JT It will appear that when the suit in question had been filed or even when the leave had been granted by this Court the building in question did not come within the purview of the Tamil Nadu Buildings Lease and Rent Control Act 1960 in view of an exclusionary provision contained in clause ii of section 30
During the pendency of appeal before this Court clause ii of section 30 was struck down by this Court in another appeal pending as being violative of Article 14 of the Constitution
The result whereof was that provisions of the aforesaid Act became applicable
In view of the subsequent events it was urged in the aforesaid case that section 10 of that Act became applicable as well
Section 10 provided  S10
Eviction of tenants 1 A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or sections 14 to 16 In view of the bar placed by section 10 aforesaid on the eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of section 10 or sections 14 to 16 which had become applicable in view of striking down of clause ii of section 30 the decrees for eviction passed by courts below were set aside
This case is clearly distinguishable because the bar had been placed in respect of eviction of the tenant whether in execution of a decree or otherwise and this Court while exercising jurisdiction under Article 136 of the Constitu tion could have taken note of that bar for purpose of setting aside the decree because in view of the subsequent events the decree passed in the suit became unexecutable in absence of compliance of section 10 or sections 14 to 16 of the Act
Here as the bar is on the part of the Court from passing a decree for eviction it has to be examined as to whether while affirming the decree for eviction passed by the High Court it shall be deemed that a fresh decree for eviction shall be deemed to have been passed by this Court
It was submitted that even if it is held that bar under clause 13A is only on respect of passing of the decree as appeal before this Court on basis of the leave granted under Article 136 of the Constitution is a continuation of the suitproceeding while dismissing the said appeal it shall be deemed that this Court has passed a decree for eviction which in view of clause 13A is barred and the said bar is applicable even on this Court
In this connection reference was made to the judgments of this Court in the cases of Amarjit Kaur vs Pritam Singh   and Sadhu Singh vs Sharan Dev AIR 1980 SC 1654
In the case of Amarjit Kaur vs Pritam Singh supra the suit for pre emption in question had been decreed by the Trial Court
The appeal preferred by the vendee was dismissed
While the second appeal was pending before the High Court the Punjab Pre emption Repeal Act 174 1973 came into force
In view of section 3 of the said Act the High Court allowed the appeal and dismissed the suit
Section 3 of that Act provided Bar to pass decree in suit for pre emption
On and from the date of commencement of the Punjab Pre emption Repeal Act 1973 no court shall pass a decree in any suit for pre emption
 In view of the fact that aforesaid section 3 said in clear and unambiguous term that no court shall pass a decree in any suit for pre emption after coming into force of the Act the High Court was of the view that said bar applied even
to the High Court while confirming the decree for pre emp tion as passed by the Trial Court because it amounted to passing a decree in a suit for pre emption
This Court said  As an appeal is a re hearing it would follow that if the High Court were to dismiss the appeal it would be passing a decree in a suit for pre emption
Therefore the only course open to the High Court was to allow the appeal and that is what the High Court has done
In other words if the High Court were to confirm the decree allowing the suit for pre emption it would be passing a decree in a suit for pre emption for when the appellate court confirms a decree it passes a decree of its own and therefore the High Court was right in allowing the appeal
 Again in the case of Sandhu Singh vs Dharam Dev supra the same section 3 of the Punjab Pre emption Repeal Act 1973 came up for consideration and this Court held The section is plain and its meaning unambiguous that there is a statutory mandate against passing a decree for enforcement of a right of pre emption in the State of Punjab
The only point here is as to whether a decree already passed by the trial court challenged in appeal after the Act was passed and affirmed on appeal would fall within the mischief of section 3 while the case pends in the High Court
We think that S3 interdicts the passing of a decree even in appeal
For one thing a decree challenged in appeal is reopended and the appellants  hearing is a 175 rehearing of the whole subject matter and when a decree is passed in appeal the first decree merges in the appellate decree and it comes within the scope of section 3
 From the facts of the aforesaid case it shall appear that even in this case section 3 of the Punjab Pre emption Repeal Act had come into force while appeal was pending in the High Court and the High Court had affirmed the decree of the Trial Court without taking note of the bar imposed by section 3 aforesaid
This Court said that section 3 interdicted the passing of a decree even in appeal because the decree which had been challenged in appeal had reopened the hearing of the whole subject matter and even while affirming the said decree it shall be deemed that appellate court had passed a decree for pre emption which was not permissible in view of the bar placed by section 3 of the Act in question
In the aforesaid cases section 3 of the Punjab Pre emption Repeal Act had come into force while the appeals were pending in the High Court and effect of section 3 of that Act was considered in connection with the pendency of the appeals before the High Court and not before this Court
Can it be said that when a special leave is granted under Article 136 of the Constitution by this court against the judgment of the High Court it is to be treated at par with an appeal entertained by the High Court against the judgment of a court subordinate to the High Court  Whether by granting leave to appeal the decree of the High Court is reopened for rehearing of the whole subject matter  Whether on the same analogy when an appeal is dismissed by this Court the decree of the High Court merges in the decree of this Court and amounts to passing a decree in the connected suit for eviction by this Court  Article 1361 of the Constitution confers on this court overriding and extensive powers of granting special leave to appeal
Article 136 does not confer a right to appeal it confers a right to apply for special leave to appeal which is in the discretion of this Court
The discretionary power under Article 136 cannot be construed as to confer a right of appeal where none exist
According to us although the power under Article 1361 is unfettered but it cannot be held that after having entertained a special leave petition against any final or interlocutory order this Court converts itself into a court of appeal for the hearing of the dispute involved and as 76 such when the appeal is dismissed the decree passed by the High Court merges into the decree of this Court and in that situation amounts to passing a decree for eviction
This aspect has been considered by this Court in the case of Gyan Chand vs Kunjbeharilal   in connection with Rajasthan Premises Control of Rent and Eviction Act 1950
Section 13A as amended by Rajasthan Ordinance 26 of 1975 extended the opportunity of paying arrears of rent by the tenant facing eviction
Benefit was made available in pending suits appeals therefrom and applications for revision pending on the date of commencement of the Ordinance
This Court examined whether that benefit of section 13A can be availed by the tenant while the appeal was pending before this Court
The Ordinance aforesaid had come into force after the special leave petition had been filed before this Court
The appellant submitted that on basis of the leave granted a proceeding was pending before this Court within the meaning of clauses a and b of section 13A aforesaid and as such he was entitled to the benefit of section 13A which had come into force during the pendency of the proceedingappeal before this Court
Chandrachud J as he then was speaking on behalf of the Court said  With regard to the first submission it may be pointed out that an application for special leave under Article 136 of the Constitution against a judgment or an order cannot be equated with the ordinary remedy of appeal as of right under any provisions of law
It is an extraordinary right conferred under the Constitution within the discretion of this Court and such an application for special leave does not come within the contemplation of appeal pending before the Court under Section 13Aa
It is true that the word proceeding which appears in Section 13Aa and b means suit appeal or application for revision according to the Explanation appended to Section 13A
Therefore in order to attract Section 13Aa a suit appeal or application for revision must be pending on the date of commencement of the Ordinance 26 of 1975
In view of the connotation of the word proceeding as given under the Explanation to Section 13A it is imper 177 missible to extend the meaning of the word proceeding to include an application for special leave under Article 136 of the Constitution
The collocation of the words suit appeal or application for revision in the Explanation to denote proceeding would go to show that suits regular appeals therefrom as provided under the ordinary law and applications for revision alone are intended
It is inconceivable that if the legislature had intended to include within the ambit of proceeding an application for special leave under Article 136 of the Constitution it would have omitted to mention it in express terms
 The bar placed by clause 13A of the Order in question shall be applicable only to suit or proceeding which was pending in any court under provisions of any special Act or under the provision of Code of Civil Procedure
as the case may be
It shall not become applicable to a special leave petition pending or an appeal registered before this Court on basis of leave granted under Article 136 of the Constitution
This Court while exercising its discretionary power under Article 136 of the Constitution even while dismissing the appeal shall not be deemed to have passed any decree for eviction
The matter would have been different if clause 13A instead of only imposing a bar on passing a decree for eviction had also prescribed a bar on passing any order for recovery of possession of any premises or on initiation of execution proceedings on basis of any decree passed earlier
In that event this Court could have taken not of subsequent change in the law and in exercise of its discretionary power could have passed an order directing the respondent not to recover possession of the premises on basis of the decree for eviction passed in his favour or to pursue the execution proceedings without complying with the requirement of clause 13A
We accordingly dismiss the appeal
But in the circumstances of the case there shall be no orders as to costs
Before we part with this appeal we any mention that during the pendency of the present appeal it was brought to our notice that amended definition of premises and clause 13A which had been inserted by CP and Berar Letting of Houses and Rent Control Second Amendment Order 1989 have been struck down by a Division Bench of Bombay High Court on 2361992
But the counsel neither produced a copy of the said 178 judgment nor could inform this Court whether any special leave to appeal against the said judgment is pending before this Court
As such we have considered the effect of clause 13A of the Order so far the present appeal is concerned
NVK Appeal dismissed


Summary:
Six accused persons were arrayed by the investigating agency for offences punishable under Sections 302 324 323 341 148 read with Section 149 IPC for an occurrence that took place on 24th December 1986 in which one Suku succumbed to injuries as a result of the assault during the occurrence
They were put on trial and the prosecution sought to establish its case by examining as many as six eye witnesses besides other evidence documentary and oral
According to the prosecution case all the six accused persons were armed with weapons like chopper iron rod knife cycle chain and torches and that the accused had held PW2 George and while the first accused kicked him the third accused inflicted injuries on him with a cycle chain
So far as Suku deceased was concerned all the accused except the first accused caused him injuries with a torch a cycle chain and a knife
The first accused was alleged to have caught hold of Suku by the collar and inflicted injuries on his hands arms and legs with a chopper
The assault took place in front of an arrack shop
It was alleged that enmity between the two groups on account of suspicion of information being passed on to the Excise Officials regarding illicit distillation was the cause of the occurrence but no evidence was led in support of this allegation and no motive for commission of the crime was established at the trial
85 At the trial four eye witnesses PW3 PW 6 PW7 the salesman and his assistant in the arrack shop and PW8 turned hostile and did not support the prosecution case
The prosecution case was sought to be proved by the ocular testimony of PW4 and PW5 both aged about 13 years at the time of the occurrence and other evidence
Both these eye witnesses supported their statements recorded under section 161 Cr
PC during their testimony in Court
The trial court on the basis of prosecution evidence found accused No 1 Subran guilty of an offence punishable under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life
Accused Nos 2 to 6 namely Rajan Preman Viswan Sura and Shajan were found guilty of an offence under Section 326149 IPC and each one of them was sentenced to undergo rigorous imprisonment for three years Besides accused 1 to 4 were convicted for an offence under Section 148 and sentenced to suffer rigorous imprisonment for one year
All the accused were also convicted for offences under Sections 14 341 323324 read with Section 149 IPC but no separate sentences were awarded on any of those counts
On appeal to the High Court the conviction and sentence awarded to accused 1 to 3 and 5 were confirmed while accused 4 and 6 were acquitted and the conviction and sentence recorded against them by the Sessions Judge was set aside
Ile participation of the 6th accused and the role assigned to him by the prosecution was doubted by the Judges of the High Court and he was given the benefit of doubt and acquitted
Similarly the High Court disbelieved the role assigned to accused No 4 and doubted his participation in the commission of the crime Me accused appealed to this Court by Special Leave
After preliminary hearing it was ordered that the appeal be heard on the limited question regarding the nature of the offence and the quantum of the sentence only
On the question  Whether after the acquittal of the two accused could the High Court Convict appellant No 1 for the substantive offence under Section 302 IPC an offence with which he had not been charged and appellants 2 to 4 for an offence under section 326149 IPC Partially allowing the appeal the Court HELD 1
A combined reading of Section 141 and Section 149 IPC 86 show that an assembly of less than five members is not an unlawful assembly within the meaning of Section 141 and cannot therefore form the basis for conviction for an offence with the aid of Section 149 IPC
92F 2
The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC
Where the existence of such an unlawful assembly is not proved the conviction with the aid of Sections 149 IPC cannot be recorded or sustained
The failure of the prosecution to show that the assembly was unlawful must necessarily result in the failure of the charge under section 149 PC
92H93A 3
A person charged for an offence under Section 302 IPC read with Section 149 cannot be convicted of the substantive offence under Section 302 IPC without a specific charge having been framed against him as envisaged by law
Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Section 302 IPC
93D 4
The conviction of appellants 2 to 4 for an offence under Section 326149 IPC cannot be sustained and the same would be the position with regard to the conviction of all the appellants for other offences with the aid of Section 149 IPC also
93B 5
The High Court failed to draw the distinction between an offence under clause b and c of Section 299 IPC and the one failing under clause 3 of Section 300 IPC
93G 6 The effect of the acquittal of the two accused persons by the High Court and without the High Court finding that some other known or unknown persons were also involved in the assault would be that for all intent and purposes the two acquitted accused persons were not members of the unlawful assembly
Thus only four accused could be said to have been the members of the assembly but such an assembly which comprises of less than five members is not an unlawful assembly within the meaning of Section 141 IPC
92G 7
Appellant No 1 Subran not having been charged for the substantive offence of murder under Section 302 IPC even the trial court which tried the six accused persons was not justified in recording a conviction against him for the substantive offence of murder punishable under Sec 87 tion 302 IPC after framing a charge against him for the offence under Section 302 read with Section 149 IPC only
93C 8
Appellant No 1 Subran was never called upon to meet a charge under Section 302 IPC simplicitor and therefore in defending himself he can not be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross examination of the prosecution witnesses
Therefore the conviction of the appellant No 1 for an offence under Section 302 was not permissible
93E 9
The intention to cause murder of Suku deceased could not be attributed to appellant No 1 and the medical evidence also shows that the injuries attributed to him were not sufficient in the ordinary course of nature to cause the death of the deceased
The conviction of appellant No 1 for the substantive offence under Section 302 IPC is therefore unwarranted and cannot be sustained
That Suku deceased died as a result of injuries inflicted on him by all the four appellants is not a matter which is in doubt
From the ocular evidence read with the medical evidence it stands established that the injuries on the deceased had been caused by all the four appellants and that the death of Suku had occurred due to the receipt of multiple injuries
93H 94A B 10
On a consideration of the circumstances of the case the type of weapons with which the accused were armed and the nature and seat of the injuries it is not possible to hold that all the four appellants had shared the common intention of causing such bodily injuries on the deceased as were likely to cause the death of Suku or were sufficient in the ordinary course of nature to cause his death
The appellants would therefore be liable for the offence committed individually by each one of them
94D E 11
The case of appellant No 1 therefore falls within Section 299 I PC punishable under Section 304 Part 1 PC
He is accordingly convicted for the said offence and sentenced to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs 2000 and in default of payment suffer further rigorous imprisonment for one year
Fine if realised to be paid to the heirs of the deceased
94G H 12 a With regard to the three other appellants their conviction for 88 an offence under Section 326 with the aid of Section 149 is not sustainable in law it is accordingly set aside and they are convicted under Section 326149 IPC
They would be responsible for their individual acts
The injuries caused by appellants 2 and 3 were with a torch iron rod and a cycle chain
None of the injuries caused by them according to the post mortem report were on any vital part of the body though some of the injuries caused by blunt weapons were grievous in nature
Each of them are convicted for an offence under Section 325 IPC and sentenced to suffer rigorous imprisonment for two years each
95B C 12 b Appellant No 4 caused grievous injuries to the deceased with a knife the offence would therefore fall under Section 326 IPC
He is therefore convicted for the said offence and sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs 500 and in default of payment to suffer rigorous imprisonment for a period of three months
The fine if realised shall be paid to the heirs of the deceased
95D 12 c The conviction of all the appellants for the offence under Section 324 as recorded by the High Court as also for the other offences are maintained but without the aid of Section 149 IPC