Mrs. S.P. Sawhney and Others vs Shrimati Rajeshwari Devi

Falshaw, C.J.—This is an appeal against a decree for possession of the premises in suit and for recovery of Rs. 2,000/- as mesne profits.

The suit was instituted by Mst. Rajeshwari Devi on the 13th of July 1957 for the possession of the ground-floor flat of the building No. 16, Jangpura-B, on the allegation that by an agreement of lease dated the 1st of July 1954 the plaintiff let the flat to Mr. S.P. Sawhney defendant at a monthly rent of Rs. 300/-, a term of the lease being that it should continue as long as both parties were agreeable. A notice was served on the tenant on the 12th of February 1957 terminating the tenancy as from the 28th of February 1957 and as the tenant did not vacate the premises the suit was instituted in the ordinary civil Court for possession and for menses profits from the 1st March 1957 at the rate of Rs. 500/- per mensem.

The suit was contested by the defendant on grounds which gave rise to the issues-

(1) Whether the provisions of Act 38 of 1952 are not applicable to the premises in suit?

(2) Whether the plaintiff''s suit is in respect of a part of the tenancy only? If so, its effect?

(3) Whether a valid notice of ejectment and demand was served by the plaintiff on the defendant? If not, its effect?

(4) Whether any cause of action arose to the plaintiff as alleged in paragraph No. 5 of the plaint in respect of the amount claimed in suit? If not, its effect?

(5) Is the plaintiff entitled to claim menses profits from the defendants for the period in suit? If so, at what rate?

(6) Is the defendant liable to ejectment on the grounds mentioned in the plaint?

All these matters were decided against the defendant, and the Court also had to deal with an application filed during the pendency of the suit based on the provisions of the Delhi Rent Control Act, LIX of 1958, which had come into force on the 9th of February 1959, it being claimed by virtue of the provisions of sub-section (2) of section 50 of the Act of 1958, which had repealed and superseded the Act of 1952, this suit had abated. This point was also decided in the plaintiff''s favour and her suit was accordingly decreed.

The first and most-important point to be dealt with is whether the suit had in fact abated as the result of the provisions of section 50(2) of the Act of 1958. As I have mentioned above the tenant had claimed the protection of the Act of 1952, but this was resisted by the plaintiff on the ground that the provisions of the Act did not apply to the property in suit. This plea was based on the provisions of section 39 of the Act which reads-

All premises, the construction of which is completed after the 1st day of June 1951, but before the expiry of three years from the commencement of this Act, shall be exempted from the operation of all the provisions of this Act for a period of seven years from the date of such completion.

That Act came into force on the 9th of June 1952, and therefore, as long the construction of the premises in suit was completed by the 9th of June 1955, the premises were to remain exempted from the provisions of the Act for seven years after the date of completion of the construction. The lower Court has in fact found on the evidence produced by the parties that it was proved that the construction of the premises was completed by the 1st of July 1954 i.e. by the time that they were leased to the defendant, and this finding has not now been attacked.

This brings us to the provisions of section 50 of the Act of 1958, which came into force on the 9th of February 1959. It may be mentioned that the defendant had died on the 1st of October 1958 and in his place the plaintiff had impleaded as his legal representatives his widow Mrs. S.P. Sawhney, his mother Mrs. Narain Das Sawhney and a married daughter named Mrs. S.P. Sethi, and it was they who filed the application based on the provisions of section 50(2) of the Act of 1958. Sub-section (1) bars the jurisdiction of civil Courts for the determination of any matter which the Rent Controller is empowered to decide under the Act. Sub-section (2) reads-

If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil Court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June 1957, but before the 9th day of June 1955, such suit or proceeding shall, on such commencement, abate.

It is not in dispute that the premises in suit are premises to which the Act applies, as they are situated in New Delhi Municipal Area, and it is quite clear that they are premises the construction of which was completed between the dates mentioned in the sub-section, and these dates are clearly fixed in reference to the provisions of section 39 of the Act of 1952. The clear intention of sub-section (2) is to cause the abatement of any suit pending on the 9th of February 1959 brought by a landlord to evict a tenant from the premises exempted from the provisions of the Act of 1952, or in other words to bring the formerly exempted premises within the scope of the new Act.

It is indeed quite clear from the order of the lower Court dealing with this question that it would have held the plaintiff''s suit to have abated, but for the fact that Mr. S.P. Sawhney the tenant had died before the Act came into force. It was, however, held that the tenancy was not a contractual tenancy, but a tenancy at will, and that the tenancy terminated with the death of the tenant and left no rights to his heirs.

Our attention has, however, been drawn to the terms of the lease entered into by the parties the preamble to which reads-

This Indenture of lease made the first day of July 1954 between Shrimati Rajeshwari Devi, w/o Dr. F.C. Mathur, hereinafter called the lessor (which expression shall include the legal representatives, successors and/or assign) of the one part, and Mr. S.P. Sawhney, Operating Supervisor of Messrs. Caltex (India) Limited, New Delhi, hereinafter called the lessee (which expression shall likewise include the legal representatives, successors and/or assign of the lessee) of the other part, witness that the parties hereto agree the convention as follows:-

The clear effect of this provision appears to be that, so far as the relationship between the landlord and tenant goes, the death of Mr. S.P, Sawhney made no difference, and whatever relationship existed between him and the landlord continued to exist between the landlord and his legal representatives, and that relationship was that of a tenant holding over after the termination of the tenancy.

It is pointed out on behalf of the plaintiff that the definition of "tenant" contained in the Act of 1958 does not include any heirs or successors of a tenant. But for the preamble to the lease this argument'' would prevail, but in view of the clear provision contained therein that the term lessor should include the heirs of the lessor, and the term lessee should include the heirs of the lessee, the defendants were clearly, on the date when the Act of 1958 came into force, in the position of a tenant holding over after the termination of the tenancy which is included in the definition of tenant contained in section 2(1). I am therefore of the opinion that the suit should have been held to have abated in accordance with the provisions of section 50(2) of the Act of 1958. In view of this finding I do not consider it is necessary to discuss the other points raised in the case and I would accordingly accept the appeal and hold that the suit had abated. Since the decision has rested on a change of law which came about during the pendency of the suit I am of the opinion that the parties should be left to bear their own costs throughout.

Mehar Singh, J.

I agree.