Kumaun Parishad vs Aditya Vikram Singh and Others

P.K. Chatterji, J.—This second appeal is directed against the judgment and order dated 25.4.1998, passed by XIIth Additional District Judge, Lucknow, allowing the first appeal of the Respondents and setting aside the judgment and order dated 6.4.1989, passed by vth Additional Munsif, Lucknow.

Heard learned Counsel for the parties and perused the record.

For the disposal of appeal, the following substantial questions of law are formulated:

(1) Whether the suit filed by the Plaintiff/landlord for arrears, damages and ejectment is maintainable under the provisions of CPC after the coming into force of U. P. Act 13 of 1972?

(2) Whether the learned court below legally erred in not considering the fact that in view of Section 43(2)(h) of U. P. Act 13 of 1972 the Plaintiff is required to make suitable amendment on the suit filed by him, which the Plaintiff had not made as such the suit filed by him was not maintainable and liable to be dismissed?

(3) Whether the suit filed by the Plaintiff/ landlord is barred by the provisions of Section 43(2)(h) of the U. P. Act?

The substantial question of law Nos. 2 and 3 are related to each other and hence they are being disposed of together.

It is admitted case of the Plaintiff that no amendment was made.

The learned Counsel for Appellant has argued that since the case was for eviction of a tenant on the ground of arrears of rent determined by tenancy and as well as also for sub-tenancy. The Plaintiff should have made amendment to this effect because the suit was not maintainable on such ground. But he has no where mentioned as to what amendment, the Plaintiff was called for to make. From the argument of the learned Counsel for Appellant, it transpires that probably he wants to argue that since the suit has been for the eviction of a tenant and with reference to Section 20 of the present Rent Control Act, all suits are barred therefore, he wants to say that without permission of the District Magistrate, the suit could not have been filed. The Sub-section (h) of Section 43 of the Act reads as follows:

Section 43(h)

any court or authority before which any suit or other proceeding relating to the recovery or determination or fixation of rent or, or eviction from, any building is pending immediately before the commencement of this Act may, on application being made to it within sixty days from such commencement, grant leave to any party to amend its pleading in consequence of the provisions of this Act;

This relates to the suit for fixation of rent or eviction from any building pending before the commencement of this Act. The amendment is required in its pleadings in consequence of the provision of this Act. The argument of the learned Counsel for the Respondent is that this meant that if any relief could not be granted for the cause of action which accrued under this Act, the said plea may be taken. The ingredient of the statute in this context is obvious that the old Act being not repealed in toto as per Section 43(s), which is quoted below:

Section 43(s) any suit for the eviction of a tenant instituted on any ground mentioned in Sub-section (1) of Section 3 of the old Act, or any proceeding out of such suit (including any proceeding for the execution of a decree passed on the basis of any agreement, compromise or satisfaction), pending immediately before the commencement of this Act, may be continued and concluded (in accordance with the old Act which shall, for that purpose , be deemed to be continued to be in force).

If a suit is instituted for eviction on any ground as mentioned in Sub-clause (1) of Section 3 of old Act pending immediately before the commencement of this Act may continue and conclude in accordance with the old Act and which shall for the purpose to be deemed to be continued to be in force, therefore, it is also inter alia with the old Act as the same has not been repealed in toto but it is still operating for the aforesaid purpose, therefore, the argument of the learned Counsel for Appellant that the amendment was required when already a plea for eviction was there is protected u/s 3 (1) of the old Act is deemed to be continued.

Section 3 (1) of the old Act reads as under:

Section 3 (1).--Subject to any order passed under Sub-section (3), no suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds:

(a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand ;

(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the accommodation ;

(c) that the tenant has, without the permission in writing of the landlord, made or permitted to be made any such construction as, in the opinion of the Court, has materially altered the accommodation or is likely substantially to diminish its value ;

(d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation or which is likely to affect adversely and substantially the landlord''s interest therein ;

(e) that the tenant has on or after the 1st day of October, 1946 , sub-let the whole or any portion of the accommodation without the permission of the landlord ;

(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant ;

(g) that the tenant was allowed to occupy the accommodation as a part of his contract of employment under the landlord and his employment has been determined.

The learned first appellate court has arrived upon the conclusion that Shah restaurant is nothing but sub-tenancy and is not run by the members exclusively for the benefit of the members and this Court has no jurisdiction to enter into the fact and reverse it.

No issue was framed before the learned trial court that the relief cannot be granted under the old Act and the amendment was to be sought for it. Therefore, the use of word may is not imperative and if leads to interpretation that it is for the Plaintiff to bring that amendment if it is so required. The learned Counsel for the Appellant has argued that the Act should be interpreted in favour of the tenant and it should be read that the tenant has been barred from eviction but such interpretation cannot be given as there is nothing in the Act itself to show that the Act should be interpreted in favour of the tenant only. Moreover the Court cannot be blank from considering the circumstances of the present case since the suit was filed in the year 1968 and the tenant is continuing on the same land and the prices have gone up about more than ten times. It is important to note that the landlord has to maintain the building in spite of the fact that the tenant has sub-let it for his own benefit. The Rent Control Act is simply for controlling the eviction etc by easy method than the complicated and time taking proceedings of the civil court, therefore, the argument of the learned Counsel for the Appellant that the Act should be interpreted in favour of the tenant has no force.

I have already discussed above that when the cause of action has already accrued under the old Act, the same shall be deemed to be in force and when the relief is granted under the old Act, the suit is only required to be amended in pursuance of the old Act. Therefore, the argument of the learned Counsel for the Appellant is also not maintainable.

The learned Counsel for the Appellant has relied on State of Punjab Vs. Mohinder Singh, ; Rattan Dev Vs. Pasam Devi, ; Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., ; Sanjay alias Kaka v. State (NCT) of Delhiand Dipak Banerjee v. Lilabati Chakraborty 1987 SCC 161. I have gone through all the above case laws and in my opinion they are not applicable to the present case.

In view of the discussion made above, the appeal has no force and is accordingly dismissed.

Let the record of the lower courts be sent back.