Case: Gyan Chand Vs. Kunjbeharilal and Ors

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 (1 = appeal accepted, 0 = rejected): 0

Explanation:
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.