Civil Appeal No 1172 of 1979
Appeal by Special Leave from the Judgment and order dated 1 2 1979 of the Madras High Court in OSA No 7577
878 G Swaminathan AC Muthana M Subramaniam K Rajendra Chowdhary and NN Sivam for the Appellant
P Chidambaram Shakeel Ahmed MN Krishnamani and MA Malik for Respondent No 1
SV Gupte and V N Ganpule for Respondent 2 4 6
The Judgment of the Court was delivered by VENKATARAMIAH J
The question involved in this case is whether a suit for ejectment filed in respect of any non residential building or part thereof pending before any court on the date on which the Tamil Nadu Buildings Lease and Rent Control Act 1960 Act No XVIII of 1960 hereinafter referred to as the principal Act  was amended by the Tamil Nadu Buildings Lease and Rent Control Amendment Act 1964 Act No XI of 1964 hereinafter referred to as the Amending Act  could have been proceeded with after that date
It arises in the following circumstances Haji Mohamed Hussain Sait the father of the plaintiff Haji Abdulla Sait was the owner of a building situated in the city of Madras
He leased it out in favour of the defendant K Seetharama Rao under a lease deed dated July 8 1940 for the purpose of Running a restaurant known as Modern Cafe  in it for a period of three years with effect from July 15 1940 on a monthly rent of Rs 950 
The agreed h period of lease expired in July 1943 but the defendant continued to be in possession of the building as a tenant holding over
On the coming into force of the Madras Non residential Buildings Rent Control order in 1946 the defendant became a statutory tenant of the said building and fair rent in respect of it was fixed under that order in the year 1946 at Rs 1680 per month
The aforesaid order was replaced by the Madras Buildings Lease and Rent Control Act
1949 which was also applicable to the said building
On the death of the landlord Haji Mohamed Hussain Sait in 1955 under a partition amongst his heirs the plaintiff became the owner of the building
The protection which the defendant was enjoying under the Act of 1949 came to an end on the passing of the principal Act by virtue of section 35 thereof which repealed the Act of 1949 and section 30iii thereof which provided that nothing contained in the principal Act was applicable to any non residential building the rental value of which on the date of the commencement of the principal Act as entered in the property tax assessment book of the municipal council district board panchayat or panchayat union council or the Corporation of Madras exceeded Rs 400 per mensem
The defendant however continued to be in possession of the building by paying the rent every month
879 The plaintiff issued a notice to the defendant terminating the tenancy with effect from the expiry of February 29 1964 and as the building was not governed by the principal Act at that point of time he instituted a suit in Civil Suit No 730 of 1964 on the file of the City Civil Court Madras on March 2 1964 for eviction and for damages at the rate of Rs 6000 per month
The defendant filed his written statement on May 2 1964 before the City  Civil Court
On June 10 1964 the Amending Act came into force
The relevant part of it is reproduced below 2
Amendment of section 30 Madras Act XVlII of 1960
In section 30 of the Madras Buildings Lease and Rent Control Act 1960 hereinafter referred to as the principal Act i in clause ii the word or occurring at the end shall be omitted ii clause iii shall be omitted iii in the Explanation for the words brackets and figures clauses ii and iii  the word brackets and figures clause ii shall be substituted
Certain pending proceedings to abate
Every proceeding in respect of any non residential building or part thereof pending before any court or other authority or officer on the date of the publication of this Act in the Fort St George Gazette and instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause iii of section 30 of the principal Act shall abate in so far as the proceeding relates to such building or part
All rights and privileges which may have accrued before such date to any landlord in respect of any non residential building or part thereof by virtue of clause iii of section 30 of the principal Act shall cease and determine and shall not be enforceable Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date mentioned in this section
 The statement of objects and reasons appended to the Bill which ultimately became the Amending Act read as follows The Madras Buildings Lease and Rent Control Act 1960 Madras Act 18 of 1960 relates to the regulation of 880 the letting of residential and non residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the State of Madras
Under section 30 of the said Act certain buildings are exempted from the provisions of the said Act
Any non residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees is one such building or part is exempted under the said section 30
It has been brought to the notice of the Government that the landlords of such non residential buildings taking advantage of the exemption referred to above demand exorbitant rents from the tenants of such buildings who mostly belong to the business community and threaten to evict the tenants when the latter do not concede to the demands for such rents
In order to provide relief to such tenants and to ensure that the interests of trade and industries do not suffer by demands of landlords for unreasonable and exorbitant rents
the Government consider that the exemption now available to any non residential building or part thereof fetching a monthly rent exceeding four hundred rupees should be withdrawn
At the same time the Government consider that there is no need to take away the exemption available at present to any residential building or part thereof fetching a monthly rent exceeding Rs 250 
The Bill seeks to achieve the above object
 The result of the amendment was that the buildings which had been exempted from the operation of the principal Act under clause iii of section 30 came within the scope of the principal Act and the relationship between landlords and tenants of such buildings was to be regulated thereafter in accordance with the provisions of the principal Act
Apparently in order to give protection to tenants of such buildings against whom proceedings for eviction had been instituted in civil courts section 3 of the Amending Act provided that such proceedings should be treated as having abated
The proviso to section 3 of the Amending Act however provided that nothing contained in that section should be deemed to invalidate any suit or proceeding in which the decree or order passed had been executed or satisfied in full before the date mentioned in that section the said date being June 10 1964
This by necessary implication section 3 of the Amending Act was applicable even to the case of a building in respect of which a decree for eviction had been passed but had not been executed or satisfied in full before June 10 1964
In view of the above provision the City 881 Civil Court dismissed the suit as having abated by its order dated December 4 1964
The plaintiff filed two applications before the City Civil Court in March 1965 one under order 9 Rule 9 of the Code of Civil Procedure to set aside the order dated December 4 1964 dismissing the suit as having abated and another under section 5 of the Limitation Act for condoning delay in filing the application under order 9 Rule 9 of the Code of Civil Procedure
He also filed an appeal in AS No 266 of 1965 on the file of the High Court of Madras against the order of the City Civil Court dated December 4 1964
Both the above applications were allowed by the City Civil Court on August 3 1965
On August 13 1965 the defendant filed an additional written statement before the City Civil Court raising the plea that the suit had actually abated by virtue of section 3 of the Amending Act
He also filed two revision petitions against the order passed by the City Civil Court allowing the two applications on August 3 1965
In the meanwhile on an application made under section 24 of the Code of Civil Procedure by the plaintiff the suit was withdrawn to the file of the High Court and it was renumbered as CS No 218 of 1965
It should be mentioned here that owing to the alteration of the pecuniary jurisdiction of the City Civil Court the suit stood transferred to the file of the High Court on May 1 1964 itself
The defendant died on January 15 1968
He had made will on January 7 1968 appointing executors and administrators in respect of his assets and issuing directions regarding the manner in which his assets should be disposed of
By an order dated July 20 1970 made by the High Court defendants Nos 2 to 10 who had been appointed executors an administrators were impleaded as legal representatives of the defendant who was shown as defendant No 1 thereafter
The two civil revision petitions filed by the defendant against the order passed on August 31965 by the City Civil Court and the Appeal Suit No 266 of 1965 filed by the plaintiff against the order of the City Civil Court dated December 4 1964 were disposed of by a Division Bench of the High Court of Madras by a common order on June 28 1972 the relevant part or which read as follows It is seen from the foregoing dates that at the time of the dismissal of the suit the lower court had no jurisdiction to deal with suit and in that view the counsel appearing on both sides represent that the order dismissing the suit as having abated may be set aside and the suit may be tried on the original side of this Court
We accordingly allow the appeal and set aside the order of dismissal of the suit on the ground that the City Civil Court had no jurisdiction to deal 882 with the same on the date of dismissal and direct the suit to be posted on the original side for being dealt with
 It may be mentioned here that as stated earlier the suit had already been withdrawn to the file of the High Court under section 24 of the Code of Civil Procedure and had been numbered as Civil Suit No 218 of 1965
In July 1973 the plaintiff sought an amendment of the plaint praying for relief against defendants Nos 2 to 10 on the ground that after the death of the original defendant No 1 they were not entitled to continue in possession of the building as statutory tenants and the plaintiff was entitled to a decree against them in that very suit
The above contention was based on the definition of the expression tenant in section 28 of the principal Act as it stood then
After the amendment of the plaint fresh written statements were filed by defendants Nos 2 to 10 raising several pleas including the pleas which had already been raised in the written statements filed by defendant No 1 before the City Civil Court
On the basis of the pleadings the trial court framed the following issues 1
Is the suit maintainable  2
Has the plaintiff given proper notice of termination of the suit premises  3
Does the suit abate by reason of Act XI of 1964  4
Are not the defendants entitled to protection under the Madras Buildings Lease and Rent Control Act 1960 as amended by Act 23 of 1973  5
Whether the tenancy came
to an end upon the death of K Seethararma Rao  6
Whether the defendants have no legal interest in the premises and consequently liable to be rejected  7
To what reliefs are the parties entitled  At the conclusion of the trial the learned Judge held on issue No 1 that the suit was maintainable on issue No 2 that the notice to quit had validly terminated the tenancy on issue No 4 that the defendants were not entitled to protection under the Madras Buildings Lease and Rent Control Act 1960 on issue No S that the tenancy had come to an end even on March 1 1964 and on issue No 6 that the defendants had no legal interest in the premises
He however declined to record any finding on issue No 3 which related to the question whether the suit had abated ar not on June 10 1964 by virtue of section 3 of  the Amending Act
The learned Judge proceeded to dispose of the suit as if it was a fresh suit instituted after the death of the original 883 defendant No 1 on January 15 1968 even though there was no specific issue on the question whether it cd be treated such
This appears to be so in view of the following observations made by the trial Judge in the course of his judgment Under the above circumstances if the plaintiff files a suit today against the defendants he is entitled to get an executable decree for possession without the necessity of going to the Rent Control Court inasmuch as defendants 2 to 10 had never become tenants  under the Act
Therefore even if the suit filed in
the City Civil Court is held to have abated under the peculiar circumstances of this case I see no reason why I should not treat the suit before me to be a fresh one
It is to be seen that the application under section 24 of the Code of Civil Procedure for transfer of the suit from City Civil Court to this court was consented by the defendants
In AS No 266 of 1965 apart from setting aside the order of abatement passed by the City Civil Court this Court directed that the suit be tried on the original side of this Court
Even if the City Civil Court had no pecuniary jurisdiction to deal with the matter and record abatement the defendants could have pressed in AS No 266 of 1965 for an order by this Court that the suit had abated
It is need less to point out that the order that was under appeal was one by which the City Civil Court held that the suit had abated
No doubt that was passed without jurisdiction inasmuch as the pecuniary jurisdiction of that Court had been reduced
But it is open to this Court to have held in the said appeal itself that the suit had abated
But the order was that the suit was to be tried on the original side
The suit had been originally filed in 1964 that is more than 12 years ago
Under such circumstances I think it is wholly unnecessary to drive the plaintiff to a fresh suit
 On the basis of the findings recorded by him the learned trial Judge passed a decree for possession and damages for use and occupation
The quantum of damages was directed to be determined under order 20 Rule 12 of the Code of Civil Procedure
Defendants Nos 2 to 10 were however allowed three years  time to deliver vacant possession of the premises
Aggrieved by the decree passed by the trial Court the plaintiff filed OSA No 23 of 1977 and defendant No 2 filed OSA 75 of 1977 on the file of the High Court of Madras
The plaintiff in his appeal questioned the decree of the trial court only to the extent it granted a period of three years to the defendants to deliver possession 884 of the premises
Defendant No 2 in his appeal questioned the entire decree
Both the appeals came up for hearing before a Division Bench of the High Court
In the course of its judgment the Division Bench formulated the following points for its consideration 1
What was the status of late Seetharama Rao after the termination of the tenancy whether he was a trespasser or a tenant holding over or a tenant at sufferance  2
Did the suit building come within the purview of the Act and did late Seetharama Rao become a tenant as defined in the Act on the coming into force of the Tamil Nadu Act XI of 1964  3
Whether the suit instituted by the plaintiff abated in view of section 3 of the Tamil Nadu Act XI of 1964  4
Whether the tenancy came to an end upon the death of Seetharama Rao  5
Whether defendants 2 to 10 are entitled to protection against eviction from the suit property by virtue of the Act as amended by the Tamil Nadu Act 23 of 1973  The Division Bench held that the status of the defendant Seetharama Rao from March 1 1964 was that of a trespasser and he was liable to pay profits or damages for use and occupation to the plaintiff that the defendant Seetharama Rao was not entitled to the benefit of the principal Act by the coming into force of the Amending Act as the building itself was outside the scope of the principal Act and even if the building was within its scope he was not a tenant as defined in the principal Act that section 3 of the Amending Act did not apply to the suit in question and hence it did not abate on June 10 1964 and that after the death of the defendant Seetharama Rao defendants 2 to 10 were not entitled to the protection against eviction under the principal Act as amended by the Tamil Nadu Act No 23 of 1973
Accordingly it dismissed the appeal filed by defendant No 2
The appeal filed by the plaintiff was also dismissed as a period of 26 years out of the period of three years  time granted by the trial court had expired by the time the judgment in appeal was delivered
Aggrieved by the decree passed by the Division Bench defendants 2 to 4 and 10 have filed the above appeal by special leave in this Court
The principal contention urged in support of the appeal before us was that the suit having abated on the coming into force of the Amending Act it was not open to the trial court to treat the proceedings before it as a new suit instituted after the death of the defendant Seetharama Rao against defendants Nos 2 to 10 and to pass a decree
In the 885 instant case as noticed earlier the trial court did not decide the question whether the suit abated on the coming into force of the Amending Act
The Division Bench of the High Court has held that the provisions of section of the Amending Act were not applicable to the suit and therefore the question of its abatement did not arise
The undisputed facts in this case are 1 Seetharama Rao held the suit property as a lessee before the institution of the suit 2 that the lease had been terminated by the issue of a notice in accordance with section 106 of the Transfer of Property Act 3 that a suit for eviction of Seetharama Rao was filed on March 2 1964 before the City Civil Court Madras which was competent to try it on the date of its institution I that by virtue of alteration of the pecuniary jurisdiction of the City Civil Court and consequential provisions made in that connection the suit stood transferred to the file of the original side of the High Court with effect from May 1 1964 and that the suit was therefore deemed to be pending in law on the file of the High Court on June 10 1964 on which date the Amending Act was published in the official Gazette even though in fact the file was Lying on that date with the City Civil Court
The other proceedings which have been referred to above in some detail are not relevant for the purpose of deciding the question whether the suit abated on the publication of the Amending Act in the official Gazette
Section 2 ii of the Amending Act repealed clause iii of section 30 of the principal Act
Consequently any non residential building the rental value of which on the date of the commencement of the principal Act as entered in the property tax assessment book of the municipal council district Board panchayat or panchayat union council or the Corporation of Madras as the case may be exceeded four hundred rupees per mensem was also brought within the scope of the principal Act and the relationship between the landlord and tenant of such building came to be regulated by it with effect from June 10 1964
Section 3 of the Amending Act consists of three parts
Under the first part it directed that every proceeding in respect of any nonresidential building or part thereof pending before any court or other authority or officer on the date of the publication of the Amending Act in the Fort St George Gazette and instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause iii of section 30 of the principal Act abated in so far as the proceedings related to such building or part
Under the second part it provided that all rights and privileges which might have accrued before such date to any landlord in respect of any non residential building or part thereof by virtue of clause iii of section 30 of 886 the principal Act would cease and determine and would not be enforceable
The proviso to section 3 which is the third part of that section provided that nothing contained in section 3 should be deemed to invalidate any suit or proceeding in which the decree or order passed had been executed or satisfied in full before the date mentioned in that section
On behalf of the plaintiff three contentions were urged in the appeal before the High Court in support of his case that section 3 of the Amending Act was inapplicable to the present case
They were i that section 3 of the Amending Act had no reference to a suit at all ii that even if it had any reference to a suit it did not apply to a suit of the present nature and iii that even if it applied to a suit of the present nature still on the pleadings of the plaintiff
the present suit was not affected by the said provision
The Division Bench rejected the first contention of the plaintiff that section 3 had no reference to a suit at all but it however upheld me case of the plaintiff on the basis of the other two contentions
Relying upon the language of section 10l of the principal Act which provided that a tenant was not liable to be evicted whether in execution of a decree or otherwise except in accordance with the provisions of that section or sections 14 to 16 and the decision of the Madras High Court in Theruvath Vittil Muhammadunny vs Melepurakkal Unniri  Anr
and the decision of this Court in BV Patankar  ors vs CG Sastry the Division Bench held that it was settled law that the principal Act itself did not prohibit the filing of a suit by a landlord for recovery of possession of the property from a tenant but only a decree passed in the said suit could not be executed except in accordance with the provisions of the principal Act and if that was the true legal position in respect of the buildings to which the principal Act applied from its commencement  there was no justification whatever for the Legislature making a contrary provision in respect of non residential buildings to which the principal Act became applicable by virtue of the Amending Act
The Division Bench therefore held that section 3 of the Amending Act was not applicable to the case on hand
We are of the view that the above conclusion of the Division Bench is erroneous
It is not for the Court to ask whether there was any justification for the Legislature to make a contrary provision in respect of the suits of the present nature
It was not the contention of the plaintiff that section 3 of the Amending Act was unconstitutional
In that situation the High Court had no option but to apply the provision in question to the case on hand without going 887 into the question whether there was any justification for enacting it
We are however
Of the view that in the circumstances in which the Amending Act came to be enacted there was every justification for enacting section 3 in order to give protection to tenants against whom suits for eviction had been filed from buildings which were brought within the scope of the principal Act by deleting clause iii of section 30 of the principal Act
The third contention of the plaintiff in support his plea that section 3 of the Amending Act was inapplicable was formulated thus The provisions of the aforesaid section 3 would apply only when the three conditions viz i that there should be a proceeding in respect of a non residential building or part thereof ii that proceeding should be pending before any court or other authority or officer on the date of the publication of the Amending Act in the Fort St George Gazette and iii that proceeding should have been instituted on the ground that such building or part thereof was exempt from the provisions of the principal Act by virtue of clause iii of section 30 of the principal Act existed
It was argued that since the present suit did not satisfy the third requirement referred to above as the plaintiff had not referred to clause iii of section 30 of the principal Act in the plaint section 3 of the Amending Act should be held to be inapplicable to it
The Division Bench upheld the above contention observing that in order to attract section 3 of the Amending Act there should be an allegation in the plaint that the building in question was exempt from the provisions of the principal Act by virtue of clause iii of section 30 of the principal Act
In order to arrive at the above conclusion it relied upon the decision of the Madras High Court in Ms Raval  Co vs K G Ramachandran  Ors
and the decision of this Court in P J Gupta Co vs K Venkatesan Merchant  ors
The passage in the case of Ms Raval  Co supra on which the Division Bench relied was follows It has to be immediately conceded that the wording of this section can by no means be described as happy or free from any cloud of ambiguity
It is not very clear how a proceeding could have been instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause iii of section 30  or what is the precise scope of the rights and privileges which may accrue to the landlord and which are to cease and determine 888 We do not think that in the context in which section 3 of the Amending Act was enacted it could be said that it was not possible to identify the proceedings to which that provision referred
In the case of P J Gupta  Co supra the effect of section 3 of the Amending Act is set out as follows The obvious result of section 30iii of the Act as it stood before the amendment was that if the rental value of a non residential building as entered in the property tax book of the Municipality exceeded Rs 400 per mensem a description which applies to the premises under consideration before us the landlord would have no right to proceed against the tenant for eviction under section 102 ii a of the Act
Section 3 of the Amending Act on the face of it applies to two kinds of cases
Its heading is misleading in so far as it suggests that it is meant to apply only to one of these two kinds
It applies firstly to cases in which a proceeding has been instituted on the ground that a non residential building was exempt from the provisions of the principal Act and is pending and secondly to cases where rights and privileges which may have accrued before such date to any landlord in respect of non residential building by virtue of clause iii of section 30 of the principal Act exist
In the kind of case falling in the first category the amendment says that the pending proceedings shall abate
As regards the second kind of case the amendment says that the rights and privileges of the landlord shall cease and determine shall not be enforceable Proceeding further this Court observed It is not necessary for the purposes of tho case before us to speculate about the types of cases which may actually fall within the two wings of the obviously inartistically drafted section 3 of the Amending Act
It is enough for us to conclude as we are bound to on the language of the provision that the case before us falls outside it
 The above observations were made by this Court in a case where a proceeding had been initiated before the City Rent Controller in December 1964 by a landlord for eviction of his tenant from a non residential building situated in the city of Madras which had been leased at Rs 600 per month on the ground that the building had been sub let
The City Rent Controller ordered the eviction of the tenant
In appeal the Court of Small Causes at Madras allowed the 889 tenant s appeal holding that the tenant had the right under the original lease of August 21 1944 to sub let and also because even violation of a clause of the subsequent lease of April 3 1963 prohibiting subletting did not entail a forfeiture of tenancy rights under the provisions of the Transfer of Property Act
Its view was that in the case of what it described as a contractual tenancy the provisions of the Transfer of Property Act applied to the exclusion of the remedies provided by the principal Act so that unless the lease deed itself provided for a termination of tenancy for sub letting in addition to a condition against subletting the tenancy right itself could not be forfeited or determined by such a breach of the contract of tenancy
In exercise of its revisional jurisdiction under section 25 of The principal Act the High Court of Madras reversed the judgment and order of the Small Cause Court holding that the rights of the landlord and tenant were governed on the date of the application for eviction by section 102 ii a of the principal Act which contained a prohibition against sub letting which involved parting with possession
On appeal to this Court the decision of the Madras High Court was affirmed holding that the effect of the amendment was that the landlord acquired a new right to evict a tenant under section 102 ii a
This Court held that by virtue of section 3 of the Amending Act all rights and privileges which might have accrued before the date of publication of the Amending Act in the official Gazette to any landlord in respect of any non residential building or part thereof by reason of clause iii of section 30 of the principal Act alone became enforceable
But the right to seek eviction of the tenant Under section 102 ii a was unaffected even though the sub letting of the building had taken place prior to the enactment of the Amending Act
From a reading of he above decision it is obvious that This Court held that the right which the landlord acquired under section 102 ii a to evict the tenant was a now right and was not a pre existing right which could possibly be affected by section 3 of the Amending Act
It is however clear from the observations of this Court extracted above that a proceeding which had been instituted on the ground that a non residential building was exempt from the provisions of the principal Act by virtue of clause iii of section 30 of The principal Act and was pending on the date of publication of the amendment in the official Gazette would abate
This Court did not however go into the question as to what types of cases would fall within the scope of section 3 of the Amending Act
We are of the view that the identification of such cases depends on the true cons 890 truction of the said provision
In this case we are faced with that question
It is appropriate to refer at this stage to the following passage occurring in Craies on Statute Law Sixth Edition at page 99 In Bratt vs Bratt 1926 3 Addams 210 216 Sir John Nicholl M R said as follows The key to the opening of every law is the reason and spirit of the law it is the animus imponentis the intention of the law maker expressed in the law itself taken as a whole
Hence to arrive at the true meaning of any particular phrase in a statute the particular phrase is not to be viewed detached from its context in the statute it is to be viewed in connection with its whole con text meaning by this as well the title and preamble as the purview or enacting part of the statute
 We have already referred to the object with which the Amending Act was passed and that was to give relief against unreasonable evictions and demands for unconscionable rates of rents to tenants of buildings which had been originally exempted from the operation of the principal Act
It is clear that while doing so the Legislature gave relief also to persons against whom suits had been filed
WE think that the words instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue  of clause iii of section 30 of the principal Act should be construed in the context in which they appear as referring to a proceeding which had been instituted in the light of section 30iii of the principal Act which granted exemption in respect of the buildings referred to therein from the operation of the principal Act and any other construction would defeat the object of the Amending Act
lt is seen that in the instant case the original plaint was filed on the basis that the tenancy had been terminated with effect from the expiry of February 29 1964
The plaintiff prayed for eviction of the original defendant and also for a decree for damages for use and occupation at the rate of Rs 6000 per month from the date of the plaint till delivery of the vacant possession on the assumption that after the termination of the lease the original defendant No 1 was not a tenant and was liable to pay damages and not the rent of Rs 1680 per month which was the fair rent fixed in respect of the building in a former proceeding under the rent control law in force then
The suit in the above form could be filed for the relief referred to above only because of the exemption granted by clause iii of section 30 of the principal Act because in the absence of such exemption no effective decree for ejectment could be passed by the City Civil Court in view of section 891 10 of the principal Act which provided that no tenant could be evicted from a building except in accordance with the provisions of section 10 and section 14 to 16 thereof
The plaintiff could not also have asked for a decree for damages at Rs 6000 per month which he had claimed in the plaint but for such exemption
We are therefore
Of the view that section 3 of the Amending Act was applicable to the suit in question as it was a proceeding instituted in the City Civil Court on the ground that the building in question was exempt from the provisions of the principal Act by virtue of clause iii of section 30 thereof although no express allegation was made in the plaint to that effect
In order to get over the inevitable consequences flowing from section 3 of the Amending Act and the effect of an earlier decision of a Division Bench of the Madras High Court in Moolchand Gupta vs Madras Piece Goods Merchants Charitable Trust a novel and ingenious contention was urged on behalf of the plaintiff the said contention being that after the termination of the lease with effect from February 29 1964 by the issue of a notice under section 106 of the Transfer of Property Act the original defendant became a trespasser and the premises in question ceased to be a building as defined in section 22 of the principal Act
On the above basis it was contended that the original defendant could not claim the benefit of any of the provisions of the principal Act and section 3 of the Amending Act
It was argued that since a contention of this nature had not been considered in the case of Moolchand Gupta supra it had no binding effect on the Division Bench which heard this case
It is appropriate at this stage to set out the passage from the judgment of the Division Bench of the High Court in which the binding nature of Moolchand Gupta s case supra is considered In this context Mr Govind Swaminathan brought to our notice a decision of a Bench of this Court in Moolchand Gupta vs Madras Piece Goods Merchants Charitable Trust supra to which one of us was a party
In our opinion in that decision this question was not considered
That case also was concerned with a non residential building which did not fall within the purview of the Act because of section 30iii of the Act
The tenancy was terminated on 31st October 1960 and the suit in ejectment was instituted on 19 12 1960 which ended in a compromise decree dated 31st January 1963
The decree provided for a direction for eviction against the quondam tenant subject to cer 892 tain terms thereafter mentioned to wit the landlord being entitled to take possession of the portion of the premises in occupation of one Panchand and the Bullion Market Post Office immediately by executing the decree in so far as The said portion was concerned and the quondam tenant delivering possession of the rest of the portion in his occupation on or before 31st January 1964 and the quondam tenant paying mesne profits at Rs 1340 per month for the period from 1st November 1960 to 31st January 1963 and further mesne profits at Rs 800 per month for the period commencing from 1st February 1963 till delivery of possession
The decree also provided that if there was default in payment of the sum of Rs 800 or the other sum per month the landlord would be entitled to execute the decree immediately
Time for vacating was extended and before the building was actually vacated the Tamil Nadu Act 11 of 1964 intervened
The question was whether by virtue of the intervention of the Tamil Nadu Act 11 of 1964 the decree could be executed
The learned trial Judge felt that in view of the fact that there had been a surrender of a part of the holding by the quondam tenant s sub tenant there was a disruption of the entire holding and therefore the quondam tenant would not be a statutory tenant within the meaning of section 28 of the Act
The Bench disagreed with this conclusion and held that the quondam tenant would be a tenant under section 28 of the Act as he continued to remain in possession of the property even after the termination of the tenancy in his favour
No point was urged before the Court that the termination of tenancy having taken place  before Tamil Nadu Act 11 of 1964 came into force the definition of the term tenant  in section 28 did not apply to the quondam tenant in that case and therefore the said decision cannot be considered to be an authority for the point which is now raised before us
 From the facts of Moolchand Gupta s case supra it is clear that the Division Bench of the Madras High Court had held that a tenant whose tenancy had been terminated with effect from October 31 1960 and against whom a decree for eviction had been passed prior to the date on which section of the Amending Act came into force was entitled to be treated as a tenant by virtue of the said provision since he had continued to remain in possession of the property even after 893 the termination of the tenancy
The only ground on which the Division Bench which heard the present case did not follow the ruling in Moolchand Gupta s case supra is that the effect of the termination of tenancy prior to the date on which Tamil Nadu Act No Xl of 1964 came into force had not been considered in that case
The binding effect of a decision as observed by this Court in Smt
Sommavanti  Ors
vs The Sate of Punjab  Ors does not depend upon whether a particular argument was considered therein or not provided that the point with reference to which an argument was subsequently advanced was actually decided
On going through the decision in Moolchand Gupta s case supra we are of the view that the appropriate procedure which the Division Bench should have followed in this case was to refer it to a full Bench instead of bypassing the said decision in the manner in which it has been done in this case
The well settled practice to be followed in such cases is succinctly put by Das Gupta J in Mahadeolal Kanodia vs The Administrator General of West Bengal as follows Before we part with this appeal however it is our duty to refer to one incidental matter
We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deorajan s case was cited before the learned Judges  who heard the present appeal they took on themselves to say that the previous decision was wrong instead of following the usual procedure in case of difference of opinion with an earlier decision of referring the question to a larger Bench
Judicial decorum no less than legal propriety forms the basis of judicial procedure
If one thing is more necessary in law than any other thing it is the quality of certainty
That quality would totally disappear if judges of co ordinate jurisdiction in a High Court start overruling one another s decision
If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench and holding the view that the earlier decision is wrong itself gives effect to that view the result would be utter confusion
The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench
894 In such a case lawyers would not know how to advise their the clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court
As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench a reference is made to a larger Bench
 Be that as it may we are of the view that having regard to our finding that the suit stood abated on June 10 1964 by virtue of the provisions of section 3 of the Amending Act the original defendant Seetharama Rao became a statutory tenant of the premises in question and he could not be evicted from the premises except in accordance with the procedure specified in the principal Act
The position would not have been different even if a decree for eviction had been passed against him before June 10 1964 and the decree had not been executed or satisfied in full on that date
The several decisions on which reliance was placed by the Division Bench for determining the character of possession of the original defendant Seetharama Rao after the expiry of the notice given under section 106 of the Transfer of Property Act were not relevant for the purpose of this case because in none of them there was any occasion to consider the effect of a provision similar to section 3 of the Amending Act
We therefore do not agree with the finding of the Division Bench that the original defendant was a trespasser in possession of the premises in question after June 10 1964
We also find it difficult to agree with the finding of the Division Bench that the premises in question was not a building  as defined in section 22 of the principal Act
The reason given by the Division Bench for holding that the building in question was not a building  within the meaning of section 22 of the principal Act was that it was not a building which was either let  or to be let  separately for residential or non residential purposes
It is necessary to extract that part of the judgment of the Division Bench where the above question is dealt with The definition of the word building  in section 22 states building  means any building or hut or part of a building or hut let or to be let separately for residential or non residential purposes   895 Consequently it is not every building that comes within the scope of the Act but only a building let or to be let separately for either of the two purposes
Admittedly on 10 6 1964 the suit building was not let because the tenancy came to an end by 29 2 1964 and late Seetharama Rao was not occupying the building from 1 3 1964 as a tenant as found by us
Therefore the only other question is whether the suit building can be said to be a building to be let separately for non residential purposes on 10 6 1964
We have already referred to the claim of their plaintiff in his plaint that he needed the building for his own use and the contention of late Seetharama Rao in his written statement dated 25 4 1964 that the plaintiff was merely anxious to extort higher rent and for that purpose had from time to time approached him that although he was prepared to pay a reasonable rent he was not willing to pay anything exorbitant and that it is because of that the plaintiff had instituted the present suit on a pretence of requiring it for his own business
With reference to the notice exhibit P 2 late Seetharama Rao stated that notice was merely in keeping with the previous notices to the same effect which were not intended to be acted upon
However before the trial Judge the claim of the plaintiff that he required the premises for his own need was not put in issue and no issue was framed with reference thereto
Tho learned Judge himself states in his judgment On the relevant date undoubtedly there was no letting of the building and it is nobody s case that the same was to be let
 The correctness of this statement found in the judgment of the learned Judge namely that it was nobody s case that the building was to be let has not been challenged either in the ground of the appeal filed before this Court or in the arguments before us
Therefore we have to proceed on the basis that it was not the case of the defend its that the plaintiff wanted to let the premises in question
This Court has construed the relevant expression namely building to be let  occurring in section 22 of the Act as meaning building intended to be let  in R K Veerappa Naidu  Anr
vs N Gopalan In the present case on 10 6 1964 it was not the case of the defendants that the building was intended to be let and it was not also their case that at any stage thereafter the plaintiff intended to let the 896 suit building
Therefore it follows that the suit building did not come within the purview of the Act as a result of the amending Act 11 of 1964
 The reason given by the Division Bench for holding that the building in question was not a building  within the meaning of section 22 of R the principal Act appears to be a strange one
A definition clause does not necessarily in any statute apply in all possible contexts in which the word which is defined may be found therein
The opening clause of section 2 of the principal Act itself suggests that any expression defined in that section should be given the meaning assigned to it therein unless  the content otherwise requires
The two fold reasoning of the Division Bench for holding that the building in question was not a building  is that on June 10 1964 i there was no lease in force and hence it was not let and ii that on that date the plaintiff had no intention to lease it and therefore it was not to be let
We are of the view that the words any building  let  also refer to a building which was the subject matter of a lease which has been terminated by the issue of a notice under section 106 of the Transfer of Property Act and which has continued to remain in occupation of the tenant
This view receives support from the definition of the expression tenant  in section 28 of the principal Act which includes a person continuing in possession after the termination of the tenancy in his favour
If the view adopted by the Division Bench is accepted then it would not be necessary for a landlord to issue a notice of vacancy under section 3 of the principal Act when a building becomes vacant by the termination of a tenancy or any the eviction of the tenant when he wants to occupy it himself
In law he cannot do so
He would be entitled to occupy it himself when he is permitted to do so under section 33 or any of the provisions of section 3A of the principal Act
This also illustrates that the view of the Division Bench is erroneous
We therefore hold that the building in question was a building  within the meaning of that expression in section 22 of the principal Act on the date on which section 3 of the Amending Act became operative
It thus becomes clear that the Suit came to an end in the eye of law on June 10 1964 and the original defendant became entitled to the protection of the principal Act
He could thereafter be evicted from the building only after an order was made by the Controller under any of the provisions of the principal Act which conferred jurisdiction on him to do so
As mentioned earlier no formal order was passed by the High Court on its original side stating that the suit had abated on June 10 1964 till the death of the original defendant which took 897 place
On January 15 1968
Owing to certain proceedings which were instituted by one or the other of the parties the case was treated as a pending proceeding on the file of the High Court although in law it was not open to the court to proceed with it after June 10 1964
The next significant step that was taken before the High Court was the application made by the appellant in the year 1973 requesting the Court to permit him to amend the plaint by the inclusion of a prayer for possession against defendants Nos 2 to 10 on the basis that they were not tenants  as defined in section 28 of the principal Act
That application was allowed
Defendants Nos 2 to 10 thereafter filed their written statements and the issues framed in the suit were recast in the light of the pleadings
The learned trial Judge as stated above disposed of the suit as a fresh one as against defendants Nos 2 to 10 without recording a finding on the question whether it had abated or June 10 1964
The learned trial Judge does not state in the course of its judgment the date from which the proceeding was treated as a fresh suit
In the instant case the suit itself was originally flied on March 2 1964
The original defendant died on January 15 1968
Even if the proceeding was treated as a fresh suit against defendants Nos 2 to 10 it could be treated as such only from a date subsequent to January 15 968 on which date the original defendant did since the contention of the plaintiff which found favour with the learned single judge and the Division Bench of the High Court was that defendants Nos 2 to 10 who were legal representatives of the original defendant could not succeed to the tenancy right of the original defendant
In the instant case since the plaintiff based his claim on the above contention in the year 1973 when he made the application for 1 amendment of the plaint the date of the institution of the fresh suit could not be earlier than the date on which the application for amendment was made even if it was permissible to do so
By his judgment the learned single Judge passed a decree for possession against defendants Nos 2 to 10 and for damages to be determined under order 20 Rule 12 of the Code of Civil Procedure without specifying the date from which damages would be payable
In the absence of such specification the plaintiff became entitled to claim damages under order 20 Rule 12 of the Code of Civil Procedure even from the date of the suit ie March 2 1964
The Division Bench by its judgment affirmed that part of the decree of the trial court
The direction for payment of mesne profits given in the decree of the trial court without specify the date from which damages should be computed could not have been passel consistently with its judgment in which it had been stated that the suit was being treated as a fresh suit
This defect however is of a 3 473SCI79 898 minor character
What is more fundamental in this case is that it was not permissible for the trial court to Treat the proceeding which had been instituted against the original defendant prior to June 10 1964 as a live proceeding which could be converted into a fresh suit instituted against defendants NOS
2 to 10 after the death of the original defendant Seetharama Rao
An amendment of a plaint by inclusion of a new prayer or by addition of new parties can be made only where a suit is pending before a court in the eye of law
On June 10 1964 the entire proceedings commenced with the plaint filed on March 2 1964 stood terminated and there was no plaint in a live suit which could be amended by the addition of new parties and the inclusion of a new prayer
We are of the view that the addition of new parties which took place after the death of Seetharama Rao and the amendment of  the plaint in the year 1973 and the passing of the decree by the trial Judge against defendants Nos 2 to 10 who were not parties to the suit prior to June 10 1964 on a cause of action which accrued subsequent to January 15 1968 were all without jurisdiction
It was however argued on behalf of the plaintiff before us relying upon the decision of this Court in B Banerjee vs Anita
Pan that since the parties had gone to trial with open eyes knowing fully that the plaintiff was relying upon a cause of action which accrued in his favour after the death of the original defendant and on the basis of the amendment of the plaint in the year 1973 the decree passed by the trial court and affirmed by the Division Bench of the High Court should not be interfered with in the interests of justice and equity
It is no doubt true that in the decision referred to above this Court permitted the t parties to file fresh pleadings and to prosecute the proceedings after the disposal of the case by this Court having regard to the delay which had already ensued
It was possible for this Court to do so in that case because there was no legal impediment as we have in the present case
To repeat in the present case the suit abated by reason of an express provision in a statute on June 10 1964 the new cause of action on which the plaintiff depended accrued on January 15 1968 ie the date of the death of the original defendant the plaint itself was amended in the year 1973 claiming relief against defendants Nos 2 to 10 not as legal representatives who inherited the tenancy right of the original defendant but as persons who had not inherited the said right 
It is thus seen that there was no proceeding in the eye of law rending after June 10 1964 the cause of action on the basis of which relief was claimed was totally different and the persons against whom the relief was sought were also different
Parties could not either by 899 consent or acquiescence confer jurisdiction on court when law had taken it away
In these circumstances we feel that the only course which we can adopt is to set aside the findings of the trial court and of the Division Bench on issues relating to the claim of the plaintiff to get possession of the property from defendants Nos 2 to 10 on the ground that they were not statutory tenants ie issues Nos 4 and 6 and to leave the questions involved in them open reserving liberty to the parties to agitate them in appropriate proceedings
In view of our finding on issue No 3 we hold that the decree passed by the trial court and the appellate court are unsustainable
We accordingly allow the appeal set aside the decrees passed by the trial court and by the Division Bench of the High Court and dispose of the suit as having abated on June 10 1964
The findings on issues Nos 4 and 6 are set aside without expressing any opinion on them reserving liberty to the parties to agitate the question in appropriate proceedings
Having regard to the peculiar circumstances of the case we direct the parties to bear their own costs throughout
PBR Appeal allowed


Summary:
In July 1940 the plaintiffs father leased out the building of which he was the owner to the defendant on a monthly rent of Rs 950 for running a restaurant
Even after the expiry of the period of lease in July 1943 the defendant continued to be in possession of the building
By virtue of the Madras Non residential Buildings Rent Control order 1946 the defendant became a statutory tenant and under the order fair rent was fixed at Rs 1680 pm
In 1949 the 1946 order was replaced by the Madras Buildings Lease and Rent Control Act
On the death of his father in 1955 the plaintiff became the owner of the building
The 1949 Act was repealed and replaced by the Tamil Nadu Buildings Lease and Rent Control  Act 1960 the Principal Act
Section 30iii of the Principal Act provided that it was not applicable to non residential buildings the rental value of which according to the assessment of the Corporation of Madras exceeded Rs 400 pm
Even so the defendant continued to be in possession of the building
Since the building was not governed by the Principal Act the plaintiff issued notice to the defendant to quit and instituted a civil suit in the City Civil Court on March 2 1964 for eviction and damages
In the meantime in June 1964 by an amendment Act the exemption contained in section 30 of the Principal Act in respect of non residential buildings was withdrawn so that from then on non residential buildings with a monthly rent of Rs 400 and above were also governed by the Principal Act
Sec ion 3 of the Amending Act also provided that proceedings for eviction of the tenants of such non residential buildings instituted in civil courts should be treated as having abated
In view of the amendment in December 1964 the City Civil Court dismissed the plaintiff s suit as having abated
Thereupon the plaintiff filed an application under O IX r 9 of the Code of Civil Procedure to set aside its order dismissing the suit as having abated
This application was allowed
The defendants filed additional written statements in the City Civil Court raising the plea that the suit had actually abated by virtue of section 3 of the Amending Act
In the meantime as a result of the plaintiff s application under section 24 Code of Civil Procedure the High Court withdrew the suit to its file on the death of the original defendant defendants 2 to 10 were impleaded as his legal representatives
On the issue whether the suit had abated on June 10 1964 by virtue of section 3 of the Amending Act the trial judge of the High Court refused to record a finding and disposed of the suit as if it was a fresh suit after the death of the 876 original defendant
He passed a decree for possession and damages for use and occupation
On appeal by the defendants the Division Bench of the High Court held that from March 1 1964 the original defendant was a trespasser that he was not entitled to the benefit of the Principal Act that with the coming into force of the Amending Act the building itself was outside the scope of the principal Act that section 3 of the Amending Act did not apply to the suit and so it did not abate on June 30 1964 and that on the death of the original defendant defendants 2 to 10 were not entitled to the protection against eviction under the Principal Act as amended in 1973
Allowing the appeal  HELD Section 3 of the Amending Act was applicable to the suit as it was a proceeding instituted in the City Civil Court on the ground that the building was exempt from the provisions of the Principal Act by virtue of section 30iii thereof although no express allegation was made in the plaint to that effect
891 B 1
a The view of the Division Bench that section 3 of the Amending Act was not applicable to this case was erroneous in the absence of a contention by the plaintiff that section 3 was unconstitutional
It was not for the court to ask whether there was any justification for the legislature to make a contrary provision in respect of the suits of the present nature
There was every justification for enacting section 3 in order to give protection to the tenants against whom suits for eviction had been filed for buildings
which were brought within the scope of the Principal ACT by deleting cl
iii of section 30 of the Principal Act
886G 887B b In the context in which section 3 of the Amending Act was enacted it could not be said that it was not possible to identify the proceedings to which that provision referred
In P J Gupta s case this Court held that a proceeding which had been instituted on the ground that a non residential building was exempt from the provisions of the Principal Act by virtue of section 30iii and was pending on the date of publication of the amendment in the official gazette would abate but did not consider the type of cases which would fall within the scope of 3 of the Amending Act 888A B 889G H P J Gupta  Co vs K Venkatesan Merchant  ors
  held inapplicable
e The words instituted on the ground that such building or part was exempt from the provisions of the Principal Act by virtue of cl
iii of section 30 of the Principal Act should be construed in the context in which they appeared as referring to a proceeding which had been instituted in the light of section 30iii of the Principal Act which granted exemption in respect of the buildings refer red to therein from the operation of the Principal Act
Any other construction would defeat the object of the Amending Act
890E F In the instant case the original plaint was filed on the basis that The tenancy had been terminated with effect from the expiry of February 29 1964
The plaintiff prayed for the eviction of the defendant damages for use and occupation and not the fair rent fixed under the Rent Control law
The suit could be filed only because of the exemption contained in section 30iii of the Principal Act 877 because in the absence of such exemption no effective decree for ejectment could be passed by the City Civil Court in view of section 10 of the Principal Act
890 G H 2
The original defendant was not a trespasser in possession of the premises after June 10 1964
He became a statutory tenant of the premises and could not be evicted from them except in accordance with the procedure specified in the Principal Act
The position would not have been different even if a decree for eviction had been passed against him before June 10 1964 and the decree had not been executed or satisfied in full on that date 894 C D 3
a The building in question was a building within The meaning of that expression in section 21  of the Principal Act on the date when section 3 of the amending Act came into force
896 F G b The view of the Division Bench that the suit property was not a building within the meaning of section 22 on the ground that there was no lease in force and hence it was not let and that on that date the plaintiff had no intention to lease it and therefore it was not to be let was erroneous
A definition clause does not necessarily apply in all possible contents in which the word may be found
The opening clause of section 2 of the Principal Act suggests that any expression defined in that section should be given a meaning assigned to it therein unless the context otherwise requires
896 B C 4
The original defendant became entitled to The protection of the Principal Act on June 10 1964 and he could be evicted from the building only after an order was made by the Rent Controller
The High Court did not pass an order the suit had abated on June 10 1964 till the death of the original defendant on January 15 1968
As a result of the proceedings instituted by one or the other of the parties the case was treated as pending although in law it was not open to the Court to proceed with it after 10
896G 897A 5
It has not permissible for the trial court to treat the proceeding which had been instituted against the original defendant prior to June 10 1964 as a live proceeding which could be converted into fresh suit instituted against defendants No 2 to 10 after the death of the original defendant
An amendment of the plaint by inclusion of a new prayer or by addition of new parties can be made only where in the eye of law a suit is pending before a Court
When the suit filed on March 2 1964 stood terminated with the coming into force of the amending Act on June 10 1964 there was no plaint in a live suit which could be amended by the addition of new parties and the inclusion of a new prayer
Therefore the addition of parties which took place after the death of the original defendant and the amendment of the plaint in 1973 requesting the court to pass a decree against defendants 2 to 10 who were not  parties to the suit prior to June 10 1964 on a cause of action which accrued subsequent to January 15 1968 were without jurisdiction
898A D B Banerjee vs Anita Pan   held inapplicable