Madhu Gupta vs Satish Chand & Ors.

Poonam Srivastav, J.

Heard Sri P. K. Mishra, learned counsel for the petitionerstenant and Sri Rahul Sahai Advocate for the landlordrespondents.

Both the writ petitions are connected and these are decided by a common judgment.

Counter and rejoinder affidavits have been exchanged and as agreed between the counsels for the parties, writ petitions are heard finally.

Writ petitions are filed challenging the orders dated 9.7.2009 passed by Upper Zila Judge, Mathura, Court No. 5, in S.C.C. Suit No. 2 of 2006Satish Chand and others Vs. Smt. Madhu Gupta and 26.5.2009 passed by Upper Zila Judge, Court No. 4, Mathura in S.C.C. Suit No. 5 of 2006Satish Chand and others Vs. Smt. Kumud Gupta. Similar question is involved in Writ Petition No. 33434 of 2009Kumud Gupta Vs. Satish Chand and others wherein an interim order has been passed on 8.7.2009.

The petitioner is defendanttenant. Plaintiffrespondentlandlords instituted Suit No. 2 of 2006Madhu Gupta for possession of the tenanted shop after eviction of the tenantpetitioner on the ground of arrears of rent and also for recovery of arrears to a tune of Rs. 18,764/ and damages for occupation at the rate of Rs. 5,000/ per month and cost of suit. Written statement was filed on 27.4.2006 challenging jurisdiction of the Judge Small Causes Court. A separate application was filed on 8.7.2009 specifically challenging the jurisdiction in view of provisions of Section 15(2) of the Provincial Small Causes Courts Act, 1887 (hereinafter referred to as the Act). The objection on behalf of defendanttenant is that since the plaintiffs themselves have valued the suit at Rs. 40,326/ therefore, Judge, Small Causes Court has no jurisdiction. Objections were filed on 9.7.2009. The application dated 8.7.2009 was rejected by means of impugned order.

The submission of Sri P.K. Mishra that the basis of rejection of the petitioner''s application vide order dated 9.7.2009 by J.S.C.C. is that in the case of Mohd. Hanif Vs. Sunil Tuli, 2009 (1) A.R.C., 750 vide Notification dated 25.10.1972 issued under Section 25(2) of Bengal, Agra and Assam, Civil Courts Act, 1887, the District Judges and Additional District Judges have been granted jurisdiction to hear the cases under the provisions of Small Causes Courts Act irrespective of their value of the suit between the landlord and tenant. The J.S.C.C. had also recorded a finding that the provisions of Section 15 of the Act as well as Section 25(2) of Bengal, Agra and Assam, Civil Courts Act, have been made applicable by aid of Amending Act U.P. Civil Law (Amending Act, 1991).

The argument of Sri Mishra revolves on this very question that Section 15(2) and (3) of the Act became applicable w.e.f. 15.1.1991 by means of U.P. Act No. 17 of 1991 whereas the amended notification introduced under Section 25(2) of Bengal, Agra and Assam Civil Courts Act w.e.f. 25.10.1972 and therefore, if interpretation as adopted by the court below is accepted then it does not stand to reason. Section 15 amended in the year 1991 would be held redundant. The amendment in the Act has come up in the year 1991 whereas the amendment in Agra Civil Courts Act is 1972, specially since nothing is reflected in the State Amendment of the Small Causes Courts Act hence the conclusions of the court below amounts to a wrong interpretation of provisions of State Amendment of the Provincial Small Causes Courts Act.

Sri P.K. Mishra has placed reliance on the Apex Court decision Union of India and others Vs. Priyankan Sharan and another, JT 2008 (10) SC, 41. Paragragraph 12 of the said judgment is quoted below:

"12. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey [1880 (5) QBD 170], (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha [AIR 1961 SC 1596] and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta [AIR 1965 SC 1728]; when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso. "Said Lord Wason in West Derby Union v. Metropolitan Life Assurance Co. [1897 AC 647 (HL)]. Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors. [JT 1991 (2) SC 123: AIR 1991 SC 1406], Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors. [ JT 1991 (2) SC 604; AIR 1991 SC 1538] and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P) Ltd. and Ors. [JT 1994 (5) SC 113; 1994 (5) SCC 672]."

Sri P.K. Mishra has also laid emphasis on the difference of the two terms ''Landlord'' to be distinct from ''Lessor'' and ''Tenant'' from the term ''Lessee''.

Sri Ajit Kumar, Senior Member of the Bar consented to extend his assistance to the Court and submitted written arguments on the legal questions since it involves a number of cases and also suits instituted for relief of ejectment on the ground of arrears of rent. His arguments have been adopted by Sri Rahul Sahai appearing on behalf of the respondents.

While replying the arguments of Sri P.K. Mishra, Sri Ajit Kumar Advocate has laid foundation primarily on the object and reasons of enactment of U.P. Act No. 13 of 1972. Extract of salient features of the said Act introduced previously are being quoted below:

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3.Under Section 3 of the old Act the powers of the District Magistrate in the matter of grant of permission for instituting a suit for eviction of a tenant were not defined and he had an unfettered discretion to allow eviction on any ground whatsoever. The grounds on which such eviction of a sitting tenant may be permitted or release of a vacant building allowed, have now been restricted. Further in order to reduce multiplicity of proceedings and also to reduce the congestion in civil courts it has been provided that proceedings for eviction shall lie before the prescribed authority instead of in the civil court.

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5.Suits for eviction on the grounds specified in Section 3 of the old Act which lay in the Court of Munsif or Civil Judge, shall now lie in the Courts of Small Causes. This will do away with the multiplicity of appeals, as only a revision will lie against the decision of the Small Causes Court as in other cases decided by Judge, Small Causes Court. Further, grounds specified in the old Act, some have been modified. As it appears that allegation of causing a nuisance were sometimes made for creating a fictitious ground of eviction, this ground has been omitted. Moreover, mere making of material alteration will not be a valid ground of eviction and only structural alterations in the building which can be termed as damage to the building will form such ground.

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He has also placed Section 20(6) of U.P. Act No. 13 of 1972 which is quoted herein below:

(6)In the Provincial Small Cause Courts Act, 1887 (Act No. IX of 1887) in the Second Schedule, in entry No. (4) the following be inserted at the end, namely

" But not including a suit by a landlord for the eviction of a tenant (after the determination of his tenancy) from a building as defined in the Uttar Pradesh Buildings (Regulation of Letting, Rent and Eviction) Act, 1972."

A close analysis of the different provisions, notification and amendment, it is evident that U.P. Act No. 37 of 1972 was enacted with an object that the legislature intended to give wider scope to the suits relating to buildings after determination of lease. In fact this was the sole object to amend Section 15 and Schedule of Provision of Small Causes Courts Act for enabling the Court to take judicial notice. No doubt the word ''landlord'' is distinct from ''lessor'' and ''tenant'' is distinct from ''lessee'' but this foundation has to be laid in the pleadings as to how two are different in a particular case and in what manner ''landlord'' is differentiable to a ''lessor''. A ''lessor'' may be an agent of ''landlord'' and, therefore, the word ''landlord'' will include a ''lessor'' who may have a subordinate right but the term ''landlord'' will include the ''lessor''. A landlord is a person to whom rent is payable, therefore, by ''lease'' a person acquires right of ''tenancy'' or ''lessee''.

Learned counsel Sri P.K. Mishra while trying to distinguish the two words and negate the jurisdiction of the Judge Small Causes Courts has overlooked the notification issued by Allahabad High Court in exercise of powers under sub section (3) of Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887 as amended by U.P. Civil Laws Amended Act, 1972 and in suppression of all earlier notifications issued in this behalf, the Governor was pleased to delegate to the High Court of Judicature at Allahabad the powers of the State Government under the said section. Consequent to this, the High Court issued Notification which was published in U.P. Gazette dated 11.11.1972 which is quoted below:

APPENDIX5

Notification under Section 25(2) of Bengal, Agra and Assam, Civil Courts Act, 1887.

October 25, 1972

No. 525. In exercise of the powers conferred by subsection (2) of Section 25 of the Bengal, Agra, and Assam Civil Courts Act, 1887 (Act XII of 1887), as amended by the Uttar Pradesh Civil Laws (Amendment) Act, 1972 (U.P. Act No. 37 of 1972), delegated by the State Government under subsection (3) of the said Section 25 to the High Court, the High Court is pleased to confer upon all the District Judges and Additional District Judges, the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Acts, 1857 (Act IX of 1887), for the trial of all suits (irrespective of their value) of the nature referred to in the said subsection (2).

Published in U.P. Gazette, dated 11111972, page 3758.

Thus, in view of the aforesaid Notification, it is evident that all the District Judges and Additional District Judges were bestowed jurisdiction of a Judge, Small Causes for the trial of all suits irrespective of their value. The High Court though armed the District Judges and Additional District Judges with the power to try the suits of the nature referred to in sub Section (2). Perusal of the U.P. Civil Laws (Amendment) Act, 1991 was made effective from January 15, 1991 and amendment of Section 15 of Act No. IX of 1987 was liable to be read along with notification issued by the High Court.

In the case of Rajendra Shah Vs. Kamla Devi, 1983 A.R.C., 337, it was observed as follows;

"Section 15 of the Provincial Small Cause Courts Act deal with the jurisdiction of Courts of Small Causes constituted and established by the Small Cause Courts Act. It does not deal with conferment of jurisdiction on other classes of Civil Courts e.g., District Judges and Additional District Judges. The constitution and jurisdiction of other classes of Civil Courts is dealt with by the Bengal, Agra and Assam Civil Courts Act. Section 25 of the latter Act specifically deals with conferment of jurisdiction of a Judge Small Causes on the existing Civil Courts. Section 15 of the Provincial Small Cause Courts Act hence could not bar the conferment of jurisdiction of a Judge of Small Causes on the other Civil Courts. Further Section 15(2) itself operates subject to any other enactment for the time being in force. That will include Section 25 of the Bengal, Agra and Assam Civil Courts Act. Section 15 of the Provincial Small Cause Courts Act hence could not and did not bar conferment of jurisdiction of a Judge Small Causes on other classes of Civil Courts including District Judges and Additional District Judges."

In another decision of Lucknow Bench of this Court Ram Lal Yadav and another Vs. Kulwant Rai Puri and others, 1998 (1) A.R.C., 7, it was held that in view of notification issued by the High Court under Section 25(2) of Bengal, Agra and Assam Civil Courts Act, 1887, there was no lack of jurisdiction of the District Court in deciding the cases having higher valuation. Next decision relied upon is Smt. Ram Sakhi Dwivedi Vs. Rama Kant Gupta connected with Civil Revision No. 367 of 1984, Rama Kant Gupta Vs. Smt. Ram Sakhi Dwivedi, 1988 (2) A.R.C., 164. Extract of Paragraph 27 of the said judgment is quoted below:

"27. Section 15 of the Provincial Small Cause Courts Act provides for cognizance of suit by the Court of Small Causes. It excludes the suits specified in the Second Schedule. A proviso has been added by amendment to U.P. in subsection (3), which is quoted below:

"Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease, or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use and occupation thereof after such determination of lease, the reference in this subsection to two thousand rupees shall be construed as a reference to five thousand rupees."

In a recent case decided by this Court, Mohd. Haneef Vs. Sunil Tuli, 2009 (1) ARC, 750, the Court held that there is no conflict between two provisions of Section 25 Bengal, Agra, Assam Civil Courts Act as amended by U.P. Act No. 37 of 1972 and provisions of U.P. Civil Laws Amendment Act, 1991. Both can be read harmoniously and final result is that unlimited jurisdiction can be exercised by the District Judge and Additional District Judge exercising jurisdiction of Judge Small Causes Court where ever there is relationship of lessor and lessee and lease has been determined.

In the case of Khalil Ullah Khan Vs. IVth Additional District Judge, Allahabad and others, 1999 (1) Allahabad Rent Cases, 345, the suit was transferred from the court of Munsif to the Court of Judge, Small Causes. The jurisdiction was challenged. The argument was that a suit pending before the commencement of U.P. Civil Laws Amendment Act, 1972 may be continued and concluded in accordance with the old Act but after addition of the proviso in Section 15 of the Provincial Causes Court Act, 1887 by aid of Section 2 of the U.P. Civil Laws Amendment Act, 1972, a suit for eviction by a lessor after determination of the lease of the tenant and recovery of rent and damages was to be instituted in the Court of Judge, Small Causes Court and, therefore, the suits pending in the court of Civil Court or Munsif would stand transferred to such court having jurisdiction to decide the suit. The High Court was of the view that the suit was rightly transferred from the court of Munsif to the Court of Judge, Small Causes.

The insistence on the part of counsel for the petitioner regarding difference in the two terms ''landlord'' and ''lessor'', ''tenant'' and ''lessee'' is not very material and this alone would not take away the jurisdiction of the Small Causes Court.

The Apex Court while trying to distinguish in the expression ''landlord'' in context with usufructuary mortgagee, in the case of Narpatchand A. Bhandari Vs. Shantilal Moolshankar Jani and another, AIR 1993 Supreme Court, 1712, it was ruled that the expression ''landlord'' includes an usufructuary mortgage where the tenanted premises is the subject of such mortgage. Under Section 58 (d) of Transfer of Property Act, an usufructuary mortgagee is a transferee of a right to possession of the mortgaged property and the right to receive the rents and profits accruing from such property. When a lessor of a leased property creates an usufructuary mortgage in respect of such property what he transfers under Section 109 of the Transfer of Property Act as a mortgagor in favour of the usufructuary mortgagee includes his right to possession of such property and to receive the rents and profits accruing from it. Thus Section 109 of the Transfer of Property Act entitles the usufructuary mortgagee from the lessor, as against the lessee or legal rights which the lessor had against such lessee. From this, it follows that tenanted premises, if is mortgaged by the landlord by way of usufructuary mortgage, such mortgagee would become entitled to receive the rents and profits accruing from such property in his own right.

Similarly the Apex Court while interpreting Clause (3) of Section 5 of Bombay Rents, Hotel and Lodging House Rates Control Act (57) of 1974) (hereinafter referred to as Bombay Act) which contains the definition of ''landlord'', means any person who is for the time being receiving or entitled to receive rent in respect of any premises on his own account and includes any person not being a tenant who from time to time derives title under a landlord, unless there is anything repugnant to the subject or context. For a ready perusal, extract of paragraphs 5 and 7 are quoted below:

5.Whether the expression ''landlord'' in subsec. (1) of S. 13 of the Act cannot be said to include ''an usufructuary mortgagee'' where the tenanted premises is the subject of usufructuary mortgage, is the question which requires our answer in the light of the provisions of the Act...............Section 13(1) contains nothing repugnant in its subject or context which would disentitle an usufructuary mortgagee, as a landlord of the tenanted premises to recover its possession from the tenant on the said ground. Further, if the legislative intendment was that the usufructuary mortgagee was not to be regarded as a landlord for recovering possession of a tenanted premises on any of the grounds envisaged under subsec. (1) of S. 13 of the Act, it would not have omitted to state so, expressly, particularly when it had been so stated in clause (b) of the explanation to sub sec. (2) of S. 13 of the Act, as regards ''rentfarmer'' or a ''rent collector'' or an ''estate manager'' who would have been otherwise a landlord entitled to recover possession of a tenanted premises from the tenant under clause (g) of subsec. (1) of that section.

....................Thus it becomes clear that the expression ''landlord'' in subsec. (1) of S. 13 of the Act includes an usufructuary mortgagee where the tenanted premises is the subject of usufructuary mortgage."

Thus in view of the discussion herein above, the objection raised by Sri P.K. Mishra is devoid of substance. The narrow interpretation of the Act as substantiated by Sri Mishra will defeat the legislative intent and policy. The primary purpose of the Act must be interpreted to sub serve and help the implementation and intention of the legislature. It is the duty of the Court while construing a statute to give effect to the actual intention of the legislature and not only literal interpretation, therefore, in my view literal meaning to the word used such as landlord and lessor, tenant or lessee would defeat the very object. In fact the intention of the legislature was to empower the Judge, Small Causes Court vizaviz the pecuniary jurisdiction to decide the cases of eviction after determination of lease on the ground of arrears of rent. Higher valuation cases would definitely be decided by the Additional District Judge and District Judge i.e. more than valuation of Rs. 25,000/ but the District Judge has an absolute jurisdiction irrespective of the pecuniary jurisdiction.

The Apex Court had held as far back as in the year 1965 in the case of Kanwar Singh and others Vs. The Delhi Administration, AIR 1965 Supreme Court, 871 that it is the duty of the Court in construing a statute to give effect to the intention of the legislature. If, therefore, giving a literal meaning to a word used by the draftsman, particularly in a penal statute, would defeat the object of the legislature, which is to suppress a mischief, the Court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will ''advance the remedy and suppress the mischief''.

In view of what has been stated above, I am not in agreement with the objections raised by Sri P.K. Mishra, learned counsel appearing on behalf of the petitioners. I come to a conclusion that the impugned orders dated 9.7.2009 passed by Upper Zila Judge, Mathura, Court No. 5, in S.C.C. Suit No. 2 of 2006Satish Chand and others Vs. Smt. Madhu Gupta and 26.5.2009 passed by Upper Zila Judge, Court No. 4, Mathura in S.C.C. Suit No. 5 of 2006Satish Chand and others Vs. Smt. Kumud Gupta, does not call for any interference. The writ petitions are accordingly dismissed. The interim orders are vacated.

The Judge, Small Causes Court, Mathura is directed to proceed expeditiously and decide the suits as the matter has been kept pending for a long time.