Case: Gyan Chand Vs. Kunjbeharilal and Ors

GOSWAMI, J. 1. The facts of the case relating to this appeal by special leave have been fully described in the judgment of our learned brother, Fazal Ali, J. We agree with the conclusion reached by him that this appeal should be dismissed. We also agree with our learned brother that the appeal should be dismissed on the merits. However, so far as the question of law that arises in this appeal, we would like to confine our decision to the reasons given hereinafter. 2. The question of law , that arises in this appeal is as to whether an application for special leave or an appeal by special leave to thin, Court is an appeal within the meaning of section 13A of the Rajasthan Premises (Control of Rent and Eviction) Act 1950, as amended by the Rajasthans Ordinance No. 26 of 1975 (briefly the Act). We should, therefore, read section 13A: 13A. Special provisions relating to pending and other matters: Notwithstanding anything to the contrary in this Act as it existed before the commencement of the Ordinance or in any other law, (a) no court shall, in any proceeding pending on the date of commencement of the amending Ordinance pass any decree in favour of a landlord for eviction of a tenant on the ground of non-payment of rent, the tenant applies under clause (b) and pays to the landlord, . or deposits in court, within such time such aggregate of the amount of rent in arrear s, interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause; (b) in every such proceeding, the court shall, on the application of the tenant made within thirty days from the date of commencement of the amending Ordinance, notwithstanding any order to the contrary, determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon at six per cent per annum and costs of the suit allowable to the landlord; and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the court, and on such payment being mad e within the time fixed as aforesaid, the proceeding shall be disposed of as if the tenant had not committed any default;(c) the provisions of clause (a) and (b) shall mutatis mutandis apply to all appeals, or applications for revision, preferred or made after the commencement of the amending Ordinance, against decree$ for eviction passed before such commencement with the variation that in clause (b), for the expression from the date of commencement of the amending Ordinance the expression from the date of the presentation of the memorandum of appeal or application for revision shall be substituted; (d) no court shall in any proceeding pending on the date of commencement of the amending Ordinance, pass any decree in favour of a landlord for eviction solely on the ground that due to the death of the tenant as defined in clause (vii) of section 3 as it stood before the commencement of the amending Ordinance, his surviving spouse, son, daughter and other heir as are referred to in sub-clause (b) 04 clause (vii) of section 3 were not entitled to the protection against eviction under this Act as it stood before the commencement of the amending Ordinance; (e) no decree for eviction passed by any court before the commencement of the amending Ordinance shall, unless the same already stands executed before such commencement, be executed against the surviving spouse, son, daughter and other heir as are referred to in sub-clause (b) of the clause (vii) of section 3 if such decree was passed solely on the ground as is referred to in clause (d) and such decree shall be deemed to be a nullity as against them; and (f) the provisions of clause (d) shall mutatis mutandis apply to all appeals, or applications for revision preferred or made, after the commencement of the amending Ordinance, and Explanation: For the purposes of this section:- (a) amending Ordinance means the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975; and(b) proceeding means suit, appeal or application revision. Even in the original Act passed in 1950 section 13(1)(a) was there with two provisos and there was restriction against eviction. Under section 13(4) of the original Act a right was conferred upon the tenant in a suit founded on the ground of non-payment of rent to pay the arrears with interest and costs as determined by the court on the first day of hearing within the outside limit Of fifteen days from the date of the order. If , the tenant complied with the order, the suit for eviction stood dismissed, 3. By the Amending Rajasthan Act 12 of 1965 section 13A was introduced. Sub-section (4) of section.13 of the original Act was substituted by still preserving the tenants right to pay the arrears with interest and costs within the outside limit of two months and on payment of the same no decree for eviction on the ground of nonpayment of rent shall be passed. The Rajasthan Ordinance No. 26 of 1975 inter alia has amended the opening non-obstante clause of section 13A and except for substituting the word Act by Ordinance in clauses ( a), (b) and (c) nothing else has been altered. Section 13A is selective enough. Only one type of eviction decree which is solely based on the ground of non-payment of rent is taken care of extending still further the period for payment , of arrears with interest and costs. Under section 13A, as amended, the benefit is available in pending suits of that category, appeals therefrom and applications for revision pending on t he date of commencement of the Ordinance, that is, on 29th September, 1975. 4. The decree of eviction with which we are concerned in this appeal is founded on the ground of non-payment of rent as specified in section 1 3(1) (a).There is a two-fold submission by the learned Counsel for the appellant. First, in view of the fact that the appellant lodged on 23rd September, 1975, an application under Article 136 of the Constitution praying for special leave to appeal against the judgment of the High Court and the Ordinance was passed on 29th September, 1975, after that application, his case is governed by section 13A(a) and (b) of the Act. In the alternative, the appellant submits that at any rate after the special leave had been granted by this Court there was an appeal reading against the judgment of the High Court and since he submitted a n application within 30 days from the grant of Special leave his case is covered by section 13A(c) of the Act : With regard to the first submission it may be pointed out that an application for special leave under Ar ticle 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 Consti tution, 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 13A(a). It is true that the word procee ding winch appears in section 13A(a) and (b) means suit, appeal or application for revision according to the Explanation appended to section 13A. Therefore, in order to attract section 13A(a), a suit, appeal or application for revision , must be pending on the date of commencement of the Ordinance No. 26 of 1975.. 5. In view of the connotation of the wordl proceeding as given under the Explanation to section 13A it is impermissi- b le 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 Expla nation 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.We will now deal with the second submission of the appellant. which is the alternative argument.6. It is submitted by the appellant that even if an application for special leave is not an appeal for the purpose of section 13A(a) in view of the fact that leave of this Court had been obtained and an appeal had been pending in pursuance of the grant of special leave he is entitled to invoke the protection under section 13A(c). It is on that basis that t he appellant submitted a second application relying on section 13A(c). 7. Under Order XVI, rule 11 of the Supreme Court Rules, on the grant of special leave the petition for special leave shall, subject to the payme nt of additional court fee, if any, be treated as the petition of. appeal and it shall be registered and numbered as such. Under section 13A(c) read with section 13A(b), in a pending appeal, the tenant has to make an application within 30 days from the date of the presentation of the memorandum of appeal. There is no provision in an appeal by special leave for presentation of a memorandum of appeal, but, as stated earlier, under rule 11 on the grant of special leave the petition for special leave is treated as the petition of appeal and registered and numbered as such.. We may in this connection contrast the provisions of the Civil Procedure Code where the procedure is laid down for appeals. Order 41, Civil Procedure Code, deals with appeals from original decrees. Under sub rule (1) of rule 1 of Order 41, every appeal shah be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. Under Order 42, the rules of Order 41 shah apply, so far as may be, to appeals from appellate decrees. Similarly the same procedure, as under Order 41, is provided for under Order 43, rule 2, with regard to appeals from orders. It is, therefore, clear that under the Civil Procedure Code an appeal has to be preferred in the form of a memorandum and presented to the court or to such officer appointed by the court in that behalf.The question of limitation provided under section 13A(b) and (c) is important and t he terminus a quo for the purpose of section 13A (c) is from the date of presentation of the memorandum of appeal. Since no petition of appeal has to be presented in this court after special leave is granted, such a contingency of appeal to this Court by way of special leave is not intended to be covered by section 13A(c). On the other hand the expression the presentation of the memorandum of appeal in section 13A(c) chimes with the construction that the legislature clearly intended to include only the hierarchy of appeals under the Civil Procedure Code wherein presentation of the memorandum of appeal is an obvious requisite. 8. We may next deal with the question whether section 22 of the Act is of assistance in deciding this controversy since our learned brothers conclusion has received sustenance also from the said section. We do not think so. 9. Before we proceed further we may turn to some of the material provisions in the Act. 10. Section 6 provides for fixation of standard rent and under sub section (1 ) thereof the landlord or the tenant ma y institute a suit in the lowest court of competent jurisdiction for fixation of standard rent for any premises. Sub-section (1) of section 7 provides for fixation of provisional rent by the same court upon the institution of a suit under section 6. Under sub-section (4) of section 7 any failure to pay the provisional rent for any month by the fifteenth day of the next following month shah render the tenant liable to eviction under clause (a) of sub-section (1) of section 13, and all sums due from the tenant as such rent shall be recoverable from him as if the order under subsection (1) were a decree of the court in a suit for periodical payments. Section 11 provides for procedure for increasing rent and the landlord may bring a suit under subsection (3) of section 11 for increasing rent or standard rent in the lowest court of competent jurisdiction. Under sub-section 11(4) the court shall, after such summary enquiry, as it may think necessary, make orders according to law, and a decree shall follow. Section 19A provides for payment, remittance and deposit of rent by tenants and the court for the purpose of that section as well as for sections 19B and 19C with respect to any local area means any civil court which may be specially authorised by the State Government by notification in this behalf, or where no civil court is so authorised; the court of the Munsif, and the court of the Civil Judge, where there is no court of Munsif having jurisdiction over the area.Section 12 provides for dealing with disallowance of amenities by the landlord by the Magistrate. The Magistrate means the sub Divisional Magistrate having jurisdiction. over the place where the premises in question are situated and includes such other Executive Magistrate having jurisdiction over and sitting at that place, as the State Government may empower in this behalf section 3(i)]. Under sub section (6) of section 12 the order of the Magistrate under subsection (3) shall be executed by the Munsif having jurisdiction, or where there is no Munsif, by the Civil Judge having jurisdiction over the area in which the premises are situated as if it were a decree passed by such Munsif or Civil. Judge, as the case may be. Next, section 17 describes the powers of a Magistrate to require premises to be let and certain orders can be passed under that section by the Magistrate. Similarly section 19 enables the Magistrate to pass certain orders with regard to the vacant building sites. 11. From a conspectus of the above provisions it will be seen that there are two types of forums for instituting action under the Act. One category of actions is taken to the lowest court of competent jurisdiction which is a civil court and the other category is lodged before the Magistrate on the executive side. 12. The word court, however, is not defined in the Act but for purposes of sections 19A, 19B and 19C. While the forums are specified for certain types of actions enumerated in the Act no court as such is specified in the Act for entertaining suits of eviction by landlord against a tenant. It is, therefore, manifest that such suits will lie in the ordinary civil court of competent jurisdiction. That court will, however, have to take into account the relevant provisions of the Act, for the purposes of determination of controversies raised before it. The benefits conferred by the Act upon the tenants will have to be given by the civil court in trying eviction suits. Where there is a bar of eviction under the Act the court will have to give effect to it.As is clear from the above narration that there is a dichotomy of forums under the Act, some matters are lodged before the lowest court of competent jurisdiction and some others before the Magistrate. There is a tertium quid, namely, the usual court which is available to the landlord for instituting suits for eviction against tenants. The landlord, however, will have to take note of the provisions under the Act and comply with those provisions in such a litigation. The tenant also, in such suits, will be able to claim all the benefits conferred upon him under the Act which the courts will, in appropriate cases, grant. 13. In the above background of the provisions in the Act section 22 which provides for appeals and revisions may be read: 22(1) From every decree or order passed by a. court under this Act, an appeal shall lie to the court to which appeals ordinarily lie from original decrees and orders passed by such former court. (2) No second appeal shall lie from any such decree or order; Provided that nothing herein contained shall affect the powers of the High Court for Rajasthan in revision; (3) Any person aggrieved by an order of the. Magistrate may, within fifteen days from the date of-such order, appeal therefrom to the District Magistrate or such. authority. as the State Government may from time to time appoint in that month. It is very significant that while Section 22( 1 ) qualities the decree or order as being under this Act, Section 13A, on the contrary, does not describe proceeding to be under the Act. 14. Section 22(1) refers to every decree or order passed by a court under this Act. The decree or order passed. under this Act must, therefore, have reference to those passed under Sections 6, 7, 11, 19A and 19C. Sub-section (2) provides that no second appeal shall lie from any such decree or order. Such decrees or orders are, therefore, again referable to those passed under the above mentioned sections under the Act, While a second appeal is barred in case of those decrees and orders under the Act the High Courts power of revision is not barred. Sub-section (3), of section 12 provides for appeals from an order of a Magistrate to the District Magistrate or such authority as may be appointed by the Government. As noticed earlier Certain orders are passed by the Magistrate under section 1, (3), Section. 17 and section 19 Section , 22(3) makes provision of appeal against such orders passed under section 12(3), section 17 and section 19.It is, therefore, clear that the Act provides for the. institution of actions in two different forums and also makes provision for appeals and revisions against orders and decrees passed under the Act. There is no provision in the Act for institution of suits for eviction which will, there- fore, lie in the ordinary courts of competent jurisdiction. Appeals, also revisions, where competent, will lie against decrees in eviction suits in the usual hierarchy of Courts. 15. It is manifest from a perusal of the scheme of the Act that appeals or applications for revision under section 13A(c) relate only to decrees in:suits for eviction based on the ground. of nonpayment of rent. Such appeals or applications for revision under section 13A(c) are not contemplated under section 22 of the Act. As shown above, decrees or orders passed by the court under the Act against which appeals and revisions are provided in Section 22 do not take in decrees or orders passed in a Suit for eviction. Usual rights of appeal and revision will be available in the latter class of suits. To hold otherwise will be to deny a right of second appeal to a litigation, be he a landlord or tenant, against a decree in an eviction suit which is clearly not the intention of the legislature. Second appeal is only barred in ease of decrees or orders passed under the Act to which a copious reference has been made hereinabove with reference to the various provisions of the Act. 16. With regard to execution proceedings, it. would appear that these are outside the scheme of clauses (a) to (c) of section 13A but it is unnecessary to express any firm opinion on that point since it does not arise in this appeal. 17. We are of opinion that the appellant cannot take advantage of section 13A in this appeal by special leave.

Decision:
0[ds]Thus it is manifest that t he appellant was fully aware of the proceedings that had taken place as also of the order that had been passed against the defendants striking out their defence.may be. stated at the outset that when the appellant applied for setting aside the ex parte order he gave no explanation whatsoever for his non-appearance in the suit, after the summonses were served on him but merely tried to explain his absence on November 26, 1968. We have already pointed out that the appellant knew very well that the defence had been struck , out by an order of the Court and had actually joined in the appeal and the revision flied by the other two defendants. In spite of that for two years he kept quiet and gave no explanation whatsoever for not appearing before the Court and participating in the proceedings until November 30, 1968. This delay of two years which has been seriously commented upon by the High Court has not been explained satisfactorily by the appellant.High Court has rightly pointed out that the conduct of the appellant in not giving any explanation for not participating in the proceedings despite service of the summonses speaks volumes against him. The argument of the appellant that the entire proceedings should be cancelled as they had taken place in his absence was rightly rejected by the High Court. In view of the concurrent findings of fact recorded on this point by the District Judge and the High Court, we are not at all inclined to interfere, in this appeal by special leave, with the merits of the case decided by the Courts below we are satisfied that the appellant was not diligent at all and has to thank his stars if the decision of the Courts below went against him In these circumstances, we do not propose to enter into merits of the appealsignificance of these Civil Miscellaneous Petitions appears to have been that if the special leave petition was not treated as a n appeal, then the moment the special leave was granted by this Court the appeal stood admitted by this Court and, therefore, the second application was filed for directions under s. 13A of the Act as amended.22. Thus a perusal of clause (6) of the statement of Objects and reasons would clearly show that the intention of , the Legislature was to confer certain benefits on the tenants to pending suits and proceedings for ejectment only on ground of defaults by giving them an opportunity to deposit the arrears within a specified time. It is nowhere mentioned in clause (6) that this benefit was to be extended beyond the frontiers of the State in appeals which Were not ordinary remedies but which were special remedies provided for under the Constitution. Thus the scope of the amendment was to confine the protection given to the tenants within the limits of the hierarchy of courts mentioned by the Act, and to the Courts in the State of Rajasthan. It may be noticed that the statement of, objects and reasons does not even give a hint that the benefit conferred by s. 13A would be available even in the execution proceedings after the decree had` been passed.23. 13A contemplates only three kinds of proceedings, namely, suits, appeals and applications for revisions and these proceedings must be under the Act , itself. Clause. (a) of s. 13A of the A ct provides that no court after the commencement of the mending ordinance shall pass any decree on the ground of non-payment of rent if the tenant applies and a s to the landlord the entire rent in arrears interest and full costs of the suit. Clause (b) requires that such an application is to be made within thirty days of the commencement of the amending ordinance on, Which the Court would determine the rent in arrears and direct, interest to be paid at the rate of six per cent per annum. Clauses (a) and (b) obviously do not apply to the present case, because the proceedings were not pending in any court when the ordinance or the Act came into force. Reliance was, however, placed on the word proceeding as appearing in clauses (a) and (b) in order to plead an argument that the word proceeding was wide enough to include not. only Suits, but appeals at a ll stages. This argument in our opinion is based on a serious misconception of the interpretation of the word proceeding. The Legislature has not left the connotation of the word proceeding in doubt because clause (b) of the Explanation clearly indicates what proceedings contemplated by s. 13A in clauses (a), (b) and (c) are. The Explanations clearly shows that proceeding means suit, appeal or application fo r revision. A logical interpretation of clause (b) of the Explanation would clearly reveal that the Act itself has limited the scope of the proceeding to suits, appeals or applications for revision under the hierarchy of the statute. In other words, the Explanation refers only to Such proceedings as may be pending in any suit, appeal or application for revision under the Act.Section 22 provides for an appeal to the Court where an appeal ordinarily ties, i.e. the Court of the District Judge in the instant case and thereafter an application in revision to the High Court. The use of the words such proceeding in clause (b) of s. 13A fortifies our conclusion that the proceedings contemplated by s. 13A are really the proceedings referred to in Explanation which means proceedings in the nature of suits, appeals or applications for revision as referred to in s. 22 of the Act. In these circumstances we are unable to agree with the learned counsel for the appellant that proceedings in this Court would fall within the ambit o f clauses (a) and (b) of s. 13A of the Act.true that clause (e) applied the provisions of clauses (a) and (b) mutatis mutandis to appeals and applications for revision. It may be noticed, however, mat this benefit is not conferred even in the execution proceeding s arising out of decrees passed in suits or appeals and upheld in revisions. The true interpretation of clause (c) of s. 13A would, therefore, be that this clause also contemplated the same proceedings as contemplated by clauses (a) and (b), namely the proceedings indicated in the Explanation. Thus the benefit conferred by clause (c) would apply only to appeals or applications for revisions filed under the A ct as provided by s. 22 of the Act. The Legislature never intended to confer this benefit beyond the frontiers of the State.It was however, submitted that the word appeal is wide enough to include an appeal by special leave filed in this Court. It is, however, not possible to accept this contention. The amendment was passed some time in the year 1975 i.e. about 25 years after the Constitution had come into force. An ap peal by special leave was a special remedy provided for by Art. 136 of the Constitution and the State Legislature of Rajasthan must be presumed to be aware of this special remedy as also the nomenclature of this remedy. If the intention was to extend the benefit to appeals for special leave it should have been so clearly stated in clause (c). Furthermore, the Rules flamed by the Supreme Court, the knowledge of which also must be ascribed to the State Legislature, make a clear-cut distinction between an application filed in the Court for grant of special leave and a petition of appeal after the leave is granted. It was suggest ed that the application for special leave to appeal may be treated as the memorandum of appeal as referred to in clause (c) of s. 13A. It is, however, not possible to accept this , contention, because the constituents and ingredients of an application for special leave to appeal are quite different from those of a memorandum of appeal preferred to an appellate Court under O. XLI r. 1(2) of the Code of Civil Procedure. Under O. XVI r. 4 of the Supreme Court Rules, 1966 the petition for special leave is to contain only the necessary facts and not the grounds. It is true, r. 11 of O. XVI of the Supreme Court Rules provides that the petition for special leave would be treated as a petition of appeal after the special leave is granted, but that also cannot be equated with a memorandum of appeal as contemplated by clause (c) of s. 13A of the Act.25. It would thus appear that the provisions of r. 1 (2) of O. XLI Code of Civil Procedure require that the memorandum of appeal has to set forth under the distinct heads the grounds of objections to the decree appealed from. No such requirement is to be found in the Supreme Court Rules either for an application for special leave to appeal or in the petition of appeal which is required to be field if certificate by High Court is granted. The Legislature must be presumed to be aware of the difference between an application for special leave to appeal and a memorandum of appeal. If the intention was to extend the benefit of s. 13A even to appeals before the Supreme Court, then apart from the word memorandum of appeal, the words application for special leave to Supreme Court should have been mentioned. The fact that clause (c) of s. 13A merely mentions the wordsfrom the date of the presentation of the memorandum of appeal or application for revision clearly indicate that the remedies contemplated by the Act are the remedies of appeal and revision as provided for by s. 22 of the Act. In fact, as already pointed out, the benefit conferred by s. 13A of the Act does not extend-even to the. execution proceedings and in these circumstances it cannot be assumed that it would have applied to a Court which is beyond the frontiers of the State and to a remedy which has been provided not by the State Legislature but by the Constitution itself.26. For these reasons, therefore, we reject the argument of the appellant that clause (c) of s. 13A of the Act would apply to the present appeal and that the appellant is, therefore, entitled to the benefit of this provision on the basis of the Civil Miscellaneous Petition filed by him. We are clearly of the opinion, on an interpretation of the various clauses of s. 13A of the Act and the Explanation thereto that the benefit under s. 13A has been intended by the Legislature to be conferred only on the appellate and revisional courts and even execution proceedings have been excluded from the ambit Of the protection granted.