Suresh Kumar vs Bhim Sain

Rajendra Nath Mittal, J.—This judgment will dispose of R.S.A. Nos. 344 and 345 of 1976, and R.S.A. No. 1518 of 1977, which involve common questions of law. The facts in the judgment are being given from R.S.A. No. 344 of 1976.

Bhim Sain plaintiff is the owner of the shop in dispute which is alleged to have been constructed in the year 1966. It was leased out to the defendant from April 26, 1967 to April 21, 1968, on a monthly rent of Rs. 100/- plus municipal taxes vide lease deed dated April 26 1967. It is further averred that the defendant materially diminished the value and utility of the shop in dispute. He consequently after serving a notice on the defendant, tiled a suit for his ejectment, pleading that the building was exempt from the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Haryana Rent Act). The suit was contested by the defendant on various grounds- The learned trial Court decreed the suit of the plaintiff. The defendant went up in appeal before the District Judge, Bhiwani, who affirmed the judgment and decree of the trial Court and dismissed it. He has come up in second appeal to this Court.

It is contended by Mr. Sarin, learned counsel for the appellant that the Haryana Rent Act has been amended by the Haryana Urban Control of Rent and Eviction) Amendment Act, 1978 (hereinafter referred to as the Amendment Act) by virtue of which inter alia section of the Haryana Rent Act was amended. The learned counsel further submits that in view of the amendment of section 1, the property in dispute is no longer exempt from the purview of the Haryana Rent Act and consequently the jurisdiction of the Civil Court has ceased to exist for passing a decree for ejectment against the appellant. According to the counsel, if it so, the decree of ejectment passed by the civil Court is liable to be set aside on this ground alone.

I have given a thoughtful consideration to the argument of the learned counsel. In order to determine this question it will be relevant to reproduce sections 1 and 13 of the Haryana Rent Act and Section 2 of the Amendment Act. Sections 1 and 13 of the Haryana Rent Act are as under:--

Short title and extent.--

(i) ... ... ...

(2)

... ... ...

(3) Nothing in this Act shall apply to--

(i) any residential building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date of its completion ;

(ii) any non-residential building construction of which is completed after the 31st March, 1962 ;

(iii) any rented land let out on or after 31st March, 1962.

Eviction of tenants.--

(1) A tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of this section.

(2) A landlord who seeks to evict his tenant shall apply to the Controller, for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied,--

... ... ...

Section 2 of the amendment Act is as under:--

Amendment of section 1 of Haryana Act II of 1973:--

For sub section (3) of section 1 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the principal Act), the following sub section shall be substituted and shall always be deemed to have been substituted, namely:--

(3) Nothing in this Act shall apply to any building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date of its completion.

From a reading of section 1 (3) (ii), it is evident that the Haryana Rent Act did not apply to a non residential building construction of which was completed after March 31, 1962. Similarly, it was not applicable to rented land let out on or after March 31, 1962. The position was, however, slightly different regarding residential buildings. Exemption was given to those residential buildings from the operation of the Haryana Rent Act, which had been completed on or after the commencement of the Act, for a period of ten years from the date of completion, after lapse of the said period it became applicable to such buildings as well Sub-section (3) of section 1 of the Haryana Rent Act was amended by section 2 of the Amendment Act, by which no distinction was retained between residential and non-residential buildings and law regarding all buildings was made uniform. According to the new provision, the Haryana Rent Act was made applicable to all the buildings except those completed on or after the commencement of the Act. It was further provided that buildings complete on or after me commencement of the Act would not be governed by the Haryana Kent. Act for 10 years from the date of their completion. It Was also made applicable to rented lands let out whether before or after its commencement.

Now it is to be seen whether the Haryana Rent Act is retrospective in Its operation or not ? Mr. Sarin has forcefully argued that the language of the Amendment Act clearly shows that it was given retrospective effect. On the other hand, Mr. G.C. Mittal contends that it is not retrospective in effect. He referred to a decision of the Supreme Court in Moti Ram Vs. Suraj Bhan and Others, I am, however, impressed with this contention of Mr. Sarin. The underlined portion in Section 2 of the Amendment Act establishes beyond any shadow of doubt that sub-section (3) of section 1 of the Haryana Rent Act was substituted from the date of the enforcement of the parent Act. The said section in unambiguous terms says that the sub-section shall always be deemed to have been substituted. The important words have been underlined by me in order to lay emphasis on them. No other meaning can be attached to these words except that the original sub-section (3) had been deleted and new sub-section had been substituted from the very inception of the present Act. The language of the section is clear and no other interpretation can be put to it except the one given above. Moti Ram''s (supra) case referred to by Mr. Mittal, affirms the view which I have taken. Gajendragadkar, J, speaking for the Court, observed that it is well-settled that where an amendment affects vested rights, the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a matter of necessary implication. In the present case, language of section 2 of the Amendment Act clearly indicates that the amendment has been made with retrospective effect. I, therefore, do not find any substance in this contention.

Now I will advert to the argument of Mr. Sarin as to whether after the amendment of the Haryana Rent Act, civil Court has the jurisdiction to pass a decree of ejectment. It is a well-established principle of law that the hearing of an appeal under the procedural law of the country is in the nature of re-hearing and therefore, in moulding the relief to be granted in appeal an appellate Court is entitled to take into account even facts and events which have come into existence since the decree appealed from was passed. In determining what justice does require, the Court is bound to consider and change, either in fact or in law, which has supervened since the judgment was entered. (See Surinder Kaur and others v, Gian Chand 1958 S.C.A. 412). The Amendment Act came into force with effect from May 8, 1978, when it was published in the Haryana Gazette (Extra.) This Court while deciding the appeal against the decree passed before that date can take into consideration the provisions of the said Act.

Section 13(1) of the Haryana Rent Act enjoins that a tenant who is in possession of a building or rented land, shall not be evicted therefrom except in accordance with the provisions of that section. Sub-section (2) prescribes the procedure for applying for ejectment. According to the section, a landlord, in order to evict his tenant, has to apply to the Controller for that purpose. The word ''Controller'' has been defined in section 2(b) of the Haryana Rent Act and it means any person who is appointed by the State Government to perform the functions of a Controller under that Act. It is further evident that the Controller, before ordering ejectment, has to satisfy himself that the case of the landlord falls under any of the clauses u/s 13(2) and (3) of the said Act. From a reading of sub-sections (1), (2) and (3) of Section 13, no doubt is left in my mind that the Legislature intended that only the Tribunals provided under the Haryana Rent Act should have the jurisdiction to order ejectment of a tenant. The Legislature can by implication exclude the jurisdiction of civil Court. It is clear from the language of section 13 of the Haryana Rent Act that the Legislature excluded jurisdiction of the Civil Courts by implication regarding cases governed by it.

I also get support for the aforesaid conclusion from a comparison of the said sub-sections with section 13(1) of the East Punjab Urban Rent Restriction Act, 1949 thereinafter referred to as the E.P. Rent Act) where a different language has been used by the Legislature showing the intention of the Legislature to the contrary. The relevant part of the section is as follows:--

Eviction of tenants --

(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the Commencement of this Act or otherwise and whether before or after the termination of the tenancy except in accordance with the provisions of this section, or in pursuance of an order made u/s 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended.

... ... ...

It is provided in section 13(1) of the East Punjab Rent Act that a tenant could not be evicted from a building or rented land in execution of a decree passed before or after the commencement of the Act, except in accordance with the provisions of that section. The word "in execution of a decree passed before or after the commencement of this Act" (underlined by roe) are significant. These words show that a decree could be passed for ejectment by a civil Court after the commencement of the East Punjab Rent Act. Thus the jurisdiction of the civil Court for passing a decree in a suit for ejectment by a landlord against his tenant regarding any land or rented land, was not taken away by the Legislature, by enacting East Punjab Rent Act. It is further evident from a reading of section 13(1) that a tenant in possession of a building or rented land cannot be evicted therefrom in execution of such decree. Thus a decree passed by a civil Court has been made inexectable. The landlord can get possession only if a Rent Controller ordered ejectment of the tenant in pursuance of the provisions of section 13 of the East Punjab Rent Act. In this view I am fortified by the observations of a Full Bench judgment of this Court in Sham Sunder v. Ram Dass (1951) 53 P.L.R. 159, It was observed by Harnam Singh, J., speaking for the Full Bench that section 13 of the Punjab Urban Rent Restriction Act 1947 does not oust the jurisdiction of civil Courts to grant a decree for eviction but merely controls the execution of such decree by prescribing procedure for the eviction of tenants. It will be relevant to mention that language of section 13 of the Punjab Urban Rent Restriction Act 1947 is parimateria with the language of section 13 of the East Punjab Rent Act, The observations of the Full Bench are fully applicable in cases of decree of ejectments passed against the tenants after coming into fore-of the East Punjab Rent Act. The same view was taken by a Division Bench of this Court in Sadhu Singh v. District Board. Gurdaspur (1962) 64 P.L.R. 1. The Division Bench observed that section 13(1) of the East Punjab Urban Rent Restriction Act does not affect the jurisdiction of the Court to pass a decree for ejectment. Thus from a comparison of section 13(1) of the Haryana Rent Act and section 13(1) of the East Punjab Rent Act, it is evident that in the former case the Legislature has impliedly taken away the jurisdiction of the Civil Court from passing a decree for ejectment against a tenant, whereas in the latter case it had not been taken away but a control was put on the execution or such a decree From the above said discussion it emerges that after passing of the Haryana Rent Act, the jurisdiction of the civil Court has been taken away for passing a decree for ejectment against tenants with respect to the rented buildings and lands governed by the said Act.

Mr. G.C. Mittal then sought to urge that the shop in dispute was constructed in the year, 1966 and according to the Haryana Rent Act, as amended, the shop was exempt from the provisions of the Act for a period of ten years from the date of its completion. According to him the provisions of the Haryana Rent Act did not apply to the shops upto the year 1976 I am not impressed with this contention also. The language of section 1(3) of the Haryana Rent Act as amended shows that the provisions of the said Act are applicable to a building which was constructed on or after the commencement of that Act for a period of ten years from the date or its completion. The counsel can not take any benefit of the provisions of unamended section 1(3) of the Haryana Rent Act as the amendment has been given a retrospective effect After the amendment it will be deemed that the original section 1 (3) never came into operation. I, therefore, reject the contention of the learned counsel.

There is no dispute regarding the facts in the present case. The shop in dispute was constructed in 1966. In view of the amendment of Section 1 (3) read with section 13 of the Haryana Rent Act the civil Court has no jurisdiction to pass a decree for ejectment in a suit filed by the landlord against his tenant. The decree for ejectment is there fore, liable to be set aside.

R.S.A. No. 345 of 1976.

The facts of R.S.A. 345 of 1976 are similar to those of R.S.A. No 344 of 1976 and consequently the decree in this case is also liable to be set aside.

R.S.A No 1518 of 1971.

The brief facts of this case are that the plaintiffs constructed the-premises in dispute in January. 1969. They leased it out to the defendant at a rent of Rs. 30/- per mensem with effect from February 1, 1969, vide rent note dated February 2, 1969. They filed a suit for ejectment of the defendant in 1973 after serving a notice on him. The suit was contested by the tenant. The trial Court passed a decree for ejectment against the tenant. He went up in appeal before the Senior Subordinate Judge, Karnal, on July 17, 1976. After the appeal had been filed, the Haryana Urban (Control of Rent and Eviction) Amendment Ordinance, 1977, was promulgated by the Governor of Haryana on April 27, 1977 and it was published in the Haryana Gazette on April 28, 1977, Section 1 (3) of the original Haryana Rant Act was amended by section 2 of the Ordinance. Section 2 of the Ordinance is pari materia with section 2 of the Amendment Act and therefore it is not necessary to reproduce it. The first appellate Court while deciding the appeal on July, 22, 1977, reversed the decree of the trial Court taking into consideration amended section 1 (3) of the Haryana Rent Act. The landlord has come up in second appeal.

This appeal is also fully covered by the observations made in R.S.A. No. 344 of 1976 and liable to be dismissed. It may, however, be relevant to point out that the Haryana Ordinance lapsed in August, 1977. The Amendment Act came into existence on May 8, 1978 when it was published in the Haryana Gazette. This case will now be governed by the Haryana Rent Act as amended by Amendment Act.

For the reasons recorded above, I accept R.S.A. Nos. 344 and 345 of 1976 and dismiss R.S.A. No. 1518 of 1977. In the circumstances of these cases. I, however, leave the parties to bear their own costs.