Sham Sundar, J.D. vs Ram Das, D.H.

Harnam Singh, J.—In dealing with ''Ex. S.A. No. 319 of 1948'', I thought that Section 9(1), Delhi and Ajmer-Merwara Rent Control Act, 1947, hereinafter refd. to as the Act, applies to decrees passed before the Act came into force. Considering, however, the opinion expressed by Mahajan, J., in ''Ex. S.A. No. 1209 of 1944 decided on 8-1-1947, in the H.C. of Judicature at Lahore, with which Abdul Rashid, C.J., concurred, I submitted the question specified hereunder, to my Lord, the Chief Justice with a recommendation that the question may be refd. for decision to a F.B. of this Court:

Whether Section 9(1), Delhi and Ajmer-Merwara Rent Control Act, 1947, applies to decrees passed before the Act came into force?

Subsequent to the making of the referring order set out above a similar point arose in Ex. S.A. Nos. 486 and 487 of 1948, and Ex. S.A. No. 704 of 1949 and these cases were ordered to be heard With ''E.S.A. No. 319 of 1948''.

In ''R.S.A. No. 2601 of 1946'' and in ''Ex. S.A. No. 487 and 704 of 1949'', the question arose whether Section 9, Delhi Rent Control Ordinance XXV (25) of 1944, hereinafter refd. to as the Ordinance, applies to decrees passed before the Ordinance came into force so far as the question of ejectment of tenants was concerned. As the question arising in ''R.S. No. 2601 of 1946 and ''Ex. S.A. Nos. 487 and 704 of 1949'', raised points identical with the points arising in ''R.S.A. No. 319 of 1948'', all these cases have been ordered to be placed before this Bench for the decision of the question stated above.

Before dealing with the question before us I think it necessary to refer briefly to the state of law on the point before the Act was passed. The New Delhi House Rent Control Order, 1939, the Delhi Rent Control Ordinance, 1944 and the Punjab Urban Rent Restriction Act, 1941, applied to various parts of the province of Delhi when the Act was applied to areas specified in Schedule I of the Act while the Ajmer-Merwara Control of Rent and Eviction Order 1941, was in force in areas specified in Section 1(2) of that Order.

Clause 11A(1), New Delhi House Rent Control Order, 1939 provided:

A tenant in possession of a house shall not be evicted therefrom, whether an execution of a decree or otherwise and whether before or after the termination of the tenancy except in accordance with the provisions of this clause.

Clause 11A of the order applied to the Municipality of Delhi and to the Notified Areas of the Civil Station, Delhi.

The Punjab Urban Rent Restriction Act, 1941, which was also in force in specified areas in the province of Delhi simply forbade the land lord from claiming rent above the ''standard rent" or ejecting tenants so long they were willing and ready to pay the rent permitted under the Act. In that Act there was no provision corresponding to that contained in Section 9 of the Act.

Section 9 of the Ordinance as amended by Ordinance No. III of 1945 provides:

Notwithstanding anything contained in any contract, no Court shall pass any decree or make any order whether in execution of a decree or otherwise evicting any tenant whether or not the period of tenancy has terminated, unless it is satisfied either....

The Ajmer-Merwara Control of Rent and Eviction Order, 1946, was in force in areas specified in Clause 1(2) of that Order when the Act came into force. Clause 3 of that Order which specified grounds for the eviction of tenants provided that no suit shall, without the permission of the Dist. Mag. be filed in any Court against a tenant for his eviction from any accommodation.

Section 15, of the Act repealed the Ordinance, the New Delhi House Rent Control Order, 1939 and the Ajmer-Merwara Control of Rent and Eviction Order, 1944. With the passing of the Act the Punjab Urban Rent Restriction Act, 1941, ceased to have effect in the province of Delhi. Section 15 of the Act provides that the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the said Ordinance or Orders or any investigation, legal proceeding or remedy in respect of any such right, privilege obligation or liability.

On 24-3-1947, the Act came into force. Section 9 of the Act reads:

Notwithstanding anything contained in any contract, no Court shall pass any decree in favour of a landlord whether in execution of a decree or otherwise, evicting any tenant, whether or not the period of the tenancy has terminated, unless it is satisfied either:

(a) that the tenant has neither paid nor tendered the whole of any arrears of rent due, within one month of the service on him in the manner provided in Section 106. T.P. Act, 1882, of a notice of demand by the landlord Provided that no eviction shall be ordered under this clause if the tenant pays in Court on the first day of hearing such arrears of rent together with costs of the suit; or

(b) that the tenant without the consent of the landlord, has whether before or after the commencement of this Act, (i) used the premises for a purpose other than that for which they were let; or (ii) assigned, sublet, or otherwise parted with the possession of the whole of the premises; or

(c) that the tenant without the consent of the landlord has, after the commencement of this Act, sublet any part of the premises; or;

(d) that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the Institution of the suit for eviction; or

(e) that purely residential premises are required bona fide'' by the landlord who is the owner of such premises for occupation as a residence for himself or his family that he neither has nor is able to secure other suitable accommodation, and that he has acquired his interest in the premises at a date prior to the beginning of the tenancy or the 2nd day of June, 1944, whichever is later, or, if the interest has devolved on him by inheritance or succession, his precedessor had acquired the interest, at a date prior to the beginning of the tenancy or the arid day of June, 1944, whichever is later; or

(f) that the tenant after the commencement of this Act has built, acquired vacant possession of or been allotted a suitable residence; or

(g) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment; or

(h) that the tenant has been guilty of conduct which is a nuisance or annoyance to the occupiers of neighbouring premises or other occupiers of the same premises; or

(i) that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed by the Govt. or the Delhi Improvement Trust on the landlord while giving him a lease of the land on which the premises are situated; or

(j) that the landlord requires the premises in order to carry out any building work: (i) at the instance of the Govt. or the Delhi Improvement Scheme or development scheme, or (ii) because the premises have become unsafe or unfit for human habitation; Provided that ''no decree for eviction'' shall be passed on the grounds set forth in Clauses (e) and (i) unless the Court is satisfied after taking all the facts and circumstances into consideration that it is reasonable to allow such eviction.

Provided further that where a decree evicting a tenant is made on the grounds set forth in Clause (e), the landlord shall not be entitled to obtain possession of the premises by the process of the Court issued in execution, before the expiration of a period of three months after the date of the decree.

For the purposes of Clause (b) or Clause (c) of Sub-section (1), a Court may presume that premises let for use as a residence were or are sublet by the tenant in whole or in part to another person, if it is satisfied that such person, not being a servant of the tenant, or a member of the family of such servant, was or has been residing in the premises or any part thereof for a period exceeding one month otherwise than in commensality with the tenant.

Where a decree or order evicting a tenant is made on the grounds set forth in Clause (e) of Sub-section (1) and the landlord fails to occupy and use the premises as a residence for himself or his family within two months of obtaining possession thereof or at any time within one year of obtaining possession of the premises lets the whole or any part thereof to any person other than the evicted tenant the Court may on the Appellant of the evicted tenant place him in possession of the premises and award such damages as it thinks fit against the landlord.

Section 9 of the Act enacts with modifications the provisions contained in Clause 11, New Delhi House Rent Control Order, 1939, Section 9 of the Ordinance and Clause 3 of the Ajmer-Merwara Control of Rent and Eviction Order, 1946.

In this situation the question for decision is whether Section 9(1),of the Act applies to execution of decrees passed before the Act came into force.

At p. 221 in Maxwell''s. Interpretation of Statutes, Edn. 9, it is stated:

It is a fundamental rule of English Law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in terms of the Act or arises by necessary and distinct implication. No rule of construction is more firmly established than this: That a retrospective effect is not, to be given to statute so as to impair existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactments. If the enactment is expressed in language which is firmly, capable of either, interpretation, it ought to be construed as prospective only.

In ''Delhi Cloth and General Mills. Co., Ltd. v. Income Tax Comr., Delhi AIR 1927 PC 242, Lord, Blanesburgh" said:

The principle, which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Co. v. Irving (1905) AC 369, where in effect it is laid down that, while provisions of a statute dealing merely with matters of procedure may properly unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touched a right in existence at the passing of the statute are not to be, applied retrospectively in the absence of express enactment or necessary intendment.

Indeed, as was said in AIR 1927 242 (Privy Council) it is a well-known rule of construction, of statutes that any statute unless it be a statute dealing with procedure only should not be construed as having retrospective effect unless the statute expressly makes its provisions retrospective, or that retrospective effect must be given by necessary implication or intendment. The law leans against giving retrospective effect to statutes.

From what I have said above it appears that the amended provisions of Section 9(1) of the Ordinance set out above are textually identical with the provisions of Section 9(1) of the Act except that the words in ''favour of a landlord'' occurring at two places in Section 9(1) of the Act do not occur in the opening clause of Section 9 of the Ordinance. That being so, if it be held in these proceedings that Section 9(1) of the Apt affects decrees passed before the Act came into force the opening clause of Section 9 of the Ordinance would also have a retrospective operation.

As stated above, the question for decision is whether Section 9(1) of the Act has retrospective operation so as to affect the execution of decrees passed before the Act, came into force.

In my opinion, if we look at the general scope of the statute there would be no doubt left that in enacting. Section 9(1) of the Act a retrospective effect was intended affecting decrees passed before the Act came into force.

Section 9 is divisible in two parts. In part one it is enacted that notwithstanding anything contained in any contract no Court shall pass any decree in favour of a landlord evicting any tenant except in accordance with the provisions of the Act and part two provides that no Court shall make any order whether in execution of a decree or otherwise evicting any tenant unless it is satisfied that the conditions mentioned in Section 9 of the Act are satisfied. The second part of Section 9(1) does not refer to decrees passed in accordance with the provisions of the Act. Decrees passed in accordance with the provisions of the Act have to be executed by Courts prescribed by rules framed u/s 14(3) of the Act. That being so, the prohibition contained in the second part of Section 9(1) of the Act does not apply to such decrees. Clearly, the prohibition contained in the second part of Section 9(1) applies to decrees passed before the Act came into force.

But learned Counsel for the landlord basing himself on the decision in ''Ex. S.A. No. 1209 of 1944'', decided by the Lahore H.C. on the ''8-1-1947'', contends that no order of eviction is made in the execution of a decree passed in an ejectment suit. The point that arose for determination in Ex. S.A. No. 1209 of 1944'', was whether'' the amended provisions of Ordinance No. XXV of 1944 were retrospective in their operation. In deciding that point Mehr Chand Mahajan, J., (Abdul Rashid, C.J. concurring) said:

The learned Counsel drew our attention to the provisions of Order XXI (21), Rules 24 and 25 and similar other provisions of the Code. He urged that a process to turn out a tenant could not now be issued and that as no subsidiary order could be made which could bring about actual dispossession of a tenant, therefore, the appeals should be allowed and it should be held that even the original order of eviction was no longer in force in view of the comprehensive phraseology employed in the amended Section. I am unable to accept this contention for the simple reason that the order of eviction contemplated by the Section is only passed, once and not a number of times. The subsidiary orders which carry out the original order of eviction cannot be said to come within the phrase "order evicting any tenant". In the case of a decree the order of eviction is contained in the decree itself. It has not to be passed over and over again. That order has to be carried out. In the case of proceedings where a decree cannot be passed but the final decision is expressed in the form of an order there again the order is made once for all at a time when a direction is given that the tenant be evicted. The amended Ordinance does not ''contemplate a number of orders of eviction but contemplates the original order of eviction''. That being so, the contention of the learned Counsel is repelled.

I regret that for reasons appearing hereinafter I am unable to agree with the decision in ''Ex. S.A. No. 1209 of 1944'' upon the question which has been refd. for decision to the F.B.

In the first place Section 9(1) of the Act expressly contemplates that an order evicting a tenant can be made in the execution of a decree. No argument is necessary to show that if an order evicting a tenant can be made in execution of decrees passed after the commencement of the Act such an order can be made in execution of decrees passed before the Act came into force.

In the second place the argument that in ejectment suits the order for eviction is made when the decree is passed and that no order of eviction is passed in execution proceedings does not receive support from what is contained in Order VII (7); Rules 1, Order XX (20), Rules 6 and 12, Order XXI (21), Rules 35, Form No. 23, Appendix ''C''and Form No. 11, Appendix ''E''.

Rules 1 of Order VII (7), Code of Civil Procedure, hereinafter refd. to as the Code, provides that a plaint shall contain ''inter alia'' the relief which the Plaintiff claims. In a suit for ejectment the relief claimed is as follows:

The Plaintiff claim is to recover possession of a house No. ... Street situate in....

In this connection rules of the S.C. of England, Appendix ''A'', Part III, Section 4 may be seen. In case the Court decrees the claim of the Plaintiff the decree passed is in accordance with Form No. 23, Appendix ''D'' of the Code. The relevant portion of Form No. 23 reads:

It is hereby decreed as follows:

(i) that the Defendant do put the Plaintiff in possession of the property specified'' in the schedule hereunto annexed....

From what I have said above it appears that in an ejectment suit ''the Court passes a decree for the delivery of Immovable property to the party to whom it has been adjudged''. On this point Rules 35 of Order XXI (21) of the Code may be seen.

In order to bring about the eviction of a tenant D.H. has to apply, under Rule 11 of Order XXI (21) of the Code. On receiving an Appellant for execution of the decree as provided by Rule 11(2) the Court then ascertains whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with; and if they have not been complied with, the Court rejects the Appellant or allows the defect to be removed then and then or within a time to be fixed by it. In case the Appellant for execution satisfies the requirements of Rules 11 to 14 of Order XXI (21) of the Code the executing Court proceeds under Rule 35 of Order XXI (21) of the Code and directs that possession of the demised premises shall be delivered to the party to ''whom it has been adjudged'', if necessary, by removing any person bound by the decree who refuses to vacate the property and then the executing Court, issues a warrant for possession in Form No. 11, Appendix ''E'' of the Code to the bailiff to give possession of the demised premises to the landlord. Form 11 reads:

Whereas the undermentioned property in the occupancy of...has been decreed to...the Plaintiff in this suit; you are hereby directed to put the said in possession of the same and you are hereby authorised to remove any person bound by the decree who may refuse to vacate the same.

Given under my hand and the seal of the Court this ... day of ....19. Judge.

A comparison of Form 23, Appendix ''D'' with Form No. 11 Appendix ''E'', puts it beyond dispute that it cannot be sustained that no order evicting a tenant is passed in execution of a decree passed in an ejectment suit. On this point Appendix ''A'', Part III, S. IV, Appendix C.S. VII, Form 1, Appendix ''F'' Form 3 A and Appendix ''H'' Form 7 A, Rules of the, S.C. of England, 1883 may be seen with advantage. Indeed, the Forms set out above closely follow the Forms given in the Appendices to the, Rules of S.C, 1883. In the decree the Court directs the tenant to put the landlord in possession of the property covered by the decree whereas in the warrant for possession the Court directs the bailiff to remove the tenant from the property and to put the landlord in possession of that property.

For the foregoing reasons, I find that the expression "make any order in execution of a decree evicting any tenant" applies to the stage when execution of a decree for ejectment is sought by the D.H. I am glad that I am supported in this view by what was said in ''Chint Ram v. Firm Kirpa Ram Dhani Ram'' AIR 1946 Lah 20.

But it is said that Rules 24 and 25 of Order XXI (21) do not contemplate an order evicting a tenant. As already mentioned, in an execution Appellant the D.H. has to state the mode in which the assistance of the Court is required. On this point Section 51 and Order XX (21) Rule 11(2)(j) of the Code may be seen. Section 51 and Rules 11(2)(j) give the modes in which the assistance of the Court may be sought for. Clearly, the executing Court issues warrants of possession to the bailiff requiring him to deliver possession of the demised premises to the party to whom it has been adjudged, if necessary by removing any person bound by the decree who refuses to vacate the property. That being so, the argument that no order evicting a tenant is passed in execution of a decree for recovery of possession of Immovable property from a tenant has no validity. Section 51 read with Order XXI (21), Rule 35 of the Code provides a complete answer to the argument raised.

A forlorn attempt was then made by the Counsel for the landlord that as with the passing of a decree in an ejectment suit the relationship of landlord and tenant between the parties ceases to exist Section 9(1) has no application to execution proceedings, in my opinion, this argument has no substance.

Section 9(1) of the Act prohibits executing Courts from making orders evicting tenants. (The word ''tenant''?) occurring in Section 9(1) of the Act must be taken to mean an ''ex-tenant'' and the landlord must be taken to mean an ''ex-landlord''. In Section 9(1) of the Act the word ''tenant'' is not used in its strict legal sense but in its popular sense including not only the current tenant but the ex-tenant remaining in occupation. In my opinion, a person whose tenancy has expired by efflux of time or whose tenancy has been determined by a decree in an ejectment suit is regarded as a tenant in Section 9(1) of the Act. That being the position under the Act the definition of the word ''tenant'' given in Section 2(d) of the Act does not govern Section 9(1) of the Act. In Section 9(3) of the Act a tenant who has been evicted is called a tenant.

From the above discussion it follows that in a suit for the eviction of a tenant the Court passes a decree directing the tenant to put the landlord in possession of the premises demised and in that sense directs the eviction of the tenant. In the event of the non-satisfaction of the decree out of Court the D.H. applies for execution of the decree and the executing Court then makes an order directing the bailiff to put the landlord in possession of the premises covered by the decree by removing the tenant if he refuses to vacate the property. I feel no doubt that in proceedings under Rules 35 of Order XXI (21) of the Code an executing Court makes an order evicting the tenant-J.D. Rules 35(1) of Order XXI (21) of the Code comes into operation when the tenant refuses to vacate the property and the coercive machinery of law is used for his eviction by removing him from the property. Rules 35(3) of Order XXI (21) of the Code authorises the bailiff to remove or open any lock or bolt or break open any door or do any other act necessary for putting the D.H. in possession.

Then it was said that the legislature, if it intended to affect decrees passed before 24-3-1947, could have employed the language used in Section 13, Punjab Urban Rent Restriction Act, 1947. In my opinion, this argument has no validity. Section 13, Punjab Urban Rent Restriction Act, 1947, does not bust the jurisdiction of civil Courts to grant a decree for eviction but merely controls the execution of such a decree by prescribing procedure for the eviction of tenants. That being so, it was (not ''?'') necessary for the legislature to express itself in the words used in Section 13, Punjab Urban Rent Restriction Act, 1947. The second part of Section 9(1) of the Act enacts that no Court shall make any order evicting a tenant in execution of a decree and in construing Section 9(1) it is not permissible to read after the word ''decree'' occurring in Section 9(1) the words "passed after the commencement of the Act"''. In this connection I may mention that the Act came into force on 24-3-1947, whereas the Punjab Urban Rent Restriction Act, 1947, was published in the Punjab Gazette Extraordinary on 14-4-1947.

No other argument was urged in these proceedings.

Before leaving the judgment I wish to notice whether Section 15 of the Act prevents Section 9(1) of the Act from applying to execution of decrees passed before the Act came into force.

As stated above, Section 15, of the Act repeals the Delhi Rent Control Ordinance, 1944, the New Delhi House Rent Control Order, 1939, and the, Ajmer-Merwara Control of Rent and Eviction Order, 1946. The repealed enactments being temporary statutes, their repeal by the Act could not have attracted the application of Section 6, General Clauses Act, 1897. In order to overcome this difficulty the provisions of Section 6, General Clauses Act, 1897, have been incorporated in, Section 15 of the Act.

In Section 15 of the Act Clauses (b) and (d) of a 15 of the Act go together. Clause (d) refers to the remedial rights which arise in connection with substantive rights which are repealed by the Act but are saved under Clause (b) of Section 15 of the Act. In other words, Section 15 of the Act saves rights in respect of transactions completed prior to the Act came into force and then saves remedies in respect of such rights as laid, down in the repealed statutes with the result that the litigant, can institute or continue proceedings in the same way, for the enforcement of his rights as if there was no repeal of the statutes mentioned in Section 15 of the Act. That this is so receives support from what was said by B.K. Mukerjee, J., (Mohammad Akram, J., concurring) in ''Babu Dhirendra Nath Roy v. Ijjetali miah'' AIR (27) 1940 Cal 423.

In plain English Section 15 of the Act enacts that the repeal shall not affect any right privilege, obligation, or liability acquired, accrued or incurred under the Ordinance or Orders repealed or affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation or liability. In construing Section 15 of the Act we must remember that there is a parallel between Section 15 of the Act and Section 6, General Clauses Act, 1897, and decisions have always held that under the General Clauses. Act, 1897, for matters of procedure the new Act must always be folld in the "legal proceeding or remedy" but any right which has accrued under the Act which has been repealed: will remain subject to the qualification that the repealing Act; contains no provision to the contrary. On this point ''Dan Mal-Parshotam Das v. Firm Babu Ram Chotte Lal'' AIR 1936 All 3 , and AIR 1944 1 (Federal Court) may be seen. Clearly, the provisions of the saving clause of the Act are subject to the qualification that the enacting part of the Act contains no provision or indication to the contrary. In the present case provisions contained in Section 9(1)(b)(g) and (i) of the Act expressly govern transactions occurring before or after the commencement of the Act and the first clause of Section 9(1) pf the Act prevents executing Courts from making any order in favour of a landlord in execution of a decree unless the Court is satisfied that the conditions specified in Section 9(1) of the Act are fulfilled. That being the situation of matters, I have no doubt that Section 15 of the Act instead of preventing the application of Section 9(1) of the Act to the execution of decrees passed before the Act came into force is subject to the provisions of Section 9(1) of the Act, A saving clause is used to exempt something from immediate interference or destruction but where, as in the present case, the main enactment is clear a saving clause can have no repercussion on the interpretation of the main enactment-so as to exclude from its scope what clearly falls Within its terms.

Indeed, the rule is that if the saving clause is in irreconcilable conflict with the body of the statute of which it is a part, it is ineffective or void. In this connection reference may be made to para No. 300 of Interpretation of Laws by Crawford, 1940 Edn. and p. 164 of Maxwell on Interpretation of Statutes, 1946 '' Edn. Para No. 300 of Interpretation of laws by Crawford reads:

As we have stated elsewhere, the saving clause is used to exempt something from immediate interference or destruction. It is generally used in repealing statutes in order to prevent them from affecting rights accrued, penalties incurred, duties imposed, or proceedings started under the statute sought to be repealed. Its position or verbal conflict is unimportant. But if it is in irreconcilable conflict with the body of the statute of which it is a part, it is ineffective, or void.

At p. 164 of Maxwell on Interpretation of Statutes we find:

A difference, indeed, has been said to exist in this respect between the effect of a saving clause, or exception, and a proviso in a statute. When the proviso appended to the enacting part is repugnant to it unquestionably repeals the enacting part, but it is said by Lord Coke that when the enactment and the saving Clause (which reserves something which would be otherwise included in the words of the enacting part) are repugnant...the saving clause is to be rejected, because otherwise the enactment would have been made in vain?

For the reasons given above, I find that Section 15 of the Act cannot be pressed into service to sustain the proposition that Section 9(1) of the Act is not retrospective.

For the foregoing reasons, I find that Section 9(1) of the Act is retrospective in its operation and that it prohibits all Courts from making any order evicting any tenant in execution of decrees passed before or after the Act came into force.

In the result I would answer the question refd. for decision to the F.B. in the affirmative and direct that the cases before us will now be laid before a Single Judge of this Court for final disposal in accordance with the decision given above.

Khosla, J.

I agree.

Kapur, J.

So do I.