Rajasthan High Court - Jaipur
M/S Taluka Stores vs Ravi Khandelwal S/O Late Shri Sita Ram ... on 20 April, 2020
Bench: Chief Justice, Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Reference No.4/2020
In S.B. Civil Second Appeal No. 230/2004
M/s Taluka Stores, M.I. Road, Jaipur through its partner Kishan
Kumar son of Mohan Lal, resident of Below Kamani Mansion,
Panch Batti, Jaipur.
----Appellant-Defendant
Versus
Ravi Khandelwal, son of late Shri Ram Khandelwal, by caste
Mahajan, resident of Tabela, Chomu House, C-Scheme, Jaipur.
----Respondent-Plaintiff
For Appellant(s) : Mr. N.K. Maloo, Senior Advocate assisted by Mr. V.K. Tamoliya Mr. Abhimanyu Singh Mr. Narendra Singhal Mr. Maneesh Sharma with Mr. Lakshay Pareek for intervenor For Respondent(s) : Mr. A.K. Bhandari, Senior Advocate assisted by Mr. Vaibhav Bhargava Mr. Digvijay Anand HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE INDERJEET SINGH Judgment reserved on : 14th February, 2020 Judgment pronounced on : 20th April, 2020 Per Hon'ble Mr. Justice Inderjeet Singh:-
1. While hearing S.B. Civil Second Appeal No.230/2004 (M/s Taluka Stores Vs. Ravi Khandelwal), on a preliminary question regarding maintainability of the suit being raised, the learned Single Judge while framing question of law referred it to the Larger Bench for consideration, the question of law so framed reads as under :-
"Whether the limitation of five years specified in Section 14(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 bars the institution of the suit itself or whether it has only the consideration of the suit and passing of a decree therein?"(Downloaded on 20/04/2020 at 08:39:22 PM)
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2. Before adverting to the conflicting judgments passed by respective Single Benches of this Court on the question involved in the matter, we would first like to quote Section 14(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be referred as the Act of 1950), which reads as under:-
"Section 14(3) Restrictions on eviction:- "Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in clause (h) of sub- section (1) of Section 13 before the expiry of five years from the date the premises were let out to the tenant."
3. On the question involved in the matter, the Single Benches of this Court have given their respective views, which we are dealing as below.
4. A Single Bench of this Court in the matter of Ashok Kumar Vs. Suresh Chand & Ors.:RLW1996(1)Raj.380 held in para 3 & 4 as under:-
"3. After hearing counsel for the parties and on a consideration of the matter, I am of the view that the court below erred in law and exceeded its jurisdiction in allowing the amendment on the peculiar facts of this case. Section 14(3) of the Act proceeds with a non-obstante clause starting with the words, "Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in clause (h) of sub-section (1) of Section (Downloaded on 20/04/2020 at 08:39:22 PM) (3 of 16) [Civil Reference No.4/2020] 13 before the expiry of five years from the date the premises were let out to the tenant."
4. The bar is in the filing of the suit. If amendment is allowed, it will relate back to the date of filing of the suit and suit would still be within five years of the tenancy. Accordingly it will be just and proper that the landlord files a separate suit on the ground of personal necessity and to that suit question of exception contained in Section 14(3) of the Act will not apply. There will be no multiplicity of proceedings either because the first suit would be confined to the point whether the tenant committed any default in payment of rent or not, whereas in the fresh suit, there will be a separate ground which will be tried and decided independently of the first suit. Accordingly the Revision is allowed, the order of court below is set aside and the application for amendment is dismissed with liberty to the plaintiff to file a separate suit on the ground of personal necessity."
5. The another judgment passed by the Single Bench on the question is in the matter of Kahtoon Begum (deceased) through her LRs vs. Bhagwan Das and Ors. :RLW2004(1)RAJ502 where in para 17 it has been held as under:-
"17. I have considered the rival submissions made by learned counsel for the parties in the light of the judgments relied upon. In Martin & Harris's case (supra), the respondent No. 3 had purchased the premises on 30.6.1985 and sent notice to the tenant on 20.9.1985 and filed an application for eviction in January, 1986. The case was taken up for hearing by the court after a period of three years from the date of purchase of the premises by the landlord.
The point for consideration was whether the (Downloaded on 20/04/2020 at 08:39:22 PM) (4 of 16) [Civil Reference No.4/2020] landlord's application for eviction filed under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act was not maintainable in view of the proviso to the said section as it was filed before the expiry of three years from the date of purchase. The Hon'ble Supreme Court held that this proviso bars entertainment of the application, therefore, the stage at which the Court has to consider whether grounds mentioned in Clause (a) are made out or not will be reached when the Court takes up the application for consideration on merits. In the instant case, Section 14(3) of the Act provides that no suit for eviction on the grounds set forth in Clause (h) of Sub-section (1) of Section 13 shall lie before the expiry of five years. Thus, the contention of learned counsel for the appellants appears to be justified that the provisions of both the Acts in this regard are quite distinct as the proviso to Section 21(1) of the U.P. Act bars 'entertainment' of the application for eviction while Section 14(3) of the Act bars even the institution of the suit for eviction. Yet there is another very important distinction between the provisions of these two Acts. Proviso to Section 21 of the U.P. Act makes a specific provision that where the building was in the occupation of a tenant before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds mentioned in Clause (a) unless a period of three years has elapsed since the date of such purchase and this proviso further provided that the landlord has given a notice in that behalf to the tenant not less than six months before such application. There is no similar provision in Sub-section (3) of Section 14 of the Act putting an embargo on a purchaser-landlord for filing the suit for eviction before the expiry of five (Downloaded on 20/04/2020 at 08:39:22 PM) (5 of 16) [Civil Reference No.4/2020] years. Rather Sub-section (3) of Section 14 of the Act makes a provision that no suit for eviction shall lie against a tenant on the ground of reasonable and bonafide requirement of the landlord before the expiry of five years from the date the premises were let out to the tenant. In the instant case, admittedly, the suit shop was let out to the tenant on 12.8.1961 by the original landlord i.e. the Association and this fact as stated hereinabove has been admitted in the written statement firstly by the original tenant Sh. Chhote Khan and then by his two legal heirs in their joint written statement. It is significant to say here that they did not plead any change in the terms and conditions of the original tenancy and therefore, on the basis of this judgment in Martin & Harris's case (supra) the contention of learned counsel for the appellants cannot be accepted that merely on the ground that the plaintiff being new landlord on the basis of the purchase of the suit shop was barred for filing the present suit after a period of five years from the date of the purchase of the suit shop. Similarly the judgment of this Court delivered in Govind Narain's case (supra) does not extend any help to the appellants. In Govind Narain's case (supra) the terms of the tenancy were changed and new tenancy agreement was entered into or a new lease was executed by the tenant and thus the existing tenancy was deemed to have been surrendered and it was held that the tenant continued to remain in possession will be of no consequence and Section 14(3) of the Act would apply meaning thereby the premises will be deemed to have been let out to the tenant from the date of commencement of new tenancy and not from the date of original tenancy. But in the instant case, there was no change in the terms of the tenancy, no new tenancy agreement was executed and the rent (Downloaded on 20/04/2020 at 08:39:22 PM) (6 of 16) [Civil Reference No.4/2020] was also not enhanced and the tenant on receiving information of the sale in favour of the plaintiff- landlord continued to pay the rent to the plaintiff- landlord and thus no fresh or new tenancy came into existence. In T.K. Lathika's case (supra) the original landlord gifted rented premises to his daughter- transferee landlord. The proviso (3) to Section 11 (3) of Kerala Buildings (Lease and Rent Control) Act provided that no landlord whose right to recover the possession arises under an instrument of transfer inter-vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. The transferee-landlord without waiting for the moratorium period of one year from the date of the gift to expire filed eviction petition. Having found two differences in the terms of the old and new lease that (i) the name of the landlord was changed and (ii) rent payable was enhanced from Rs. 65 per month to Rs. 150 per month, it was held by the Hon'ble Supreme Court that moratorium period would apply from the date of fresh lease deed. But this judgment is also not applicable in the instant case, as there is no such provision under Section 14(3) of the Act putting any embargo on the rights of the transferee landlord and secondly as already observed there is no change in the terms of the tenancy between the plaintiff- landlord and the tenant in this case. On the similar reasonings as stated hereinabove, the judgments delivered in P.M.C. Kunhiraman Nair, Mohammed Ibrahim, Konijeti Venkaya and another, Norat Mal, N.K. Kame, Smt. Sudha Mukherjee and Anandilal Bhanwarlal's case (all supra) are not applicable in the instant case as no terms and conditions of the old tenancy of 1961 were altered between the parties and the tenant continued to pay the rent to the plaintiff-landlord in accordance with the terms (Downloaded on 20/04/2020 at 08:39:22 PM) (7 of 16) [Civil Reference No.4/2020] and conditions of the old tenancy and thus no new fresh tenancy came into existence between the parties. In Dr. Harumal's case (supra), this Court dealing with the notice of terminating the tenancy held that the date of commencement of the tenancy of the tenants will be considered to be the original date of tenancy on which the appellants were admitted as tenants. Similar view was taken in Babu Ram's case (supra). In Munvar Basha and another's case (supra) the Madras High Court held that the premises were sold during the pendency of eviction proceedings, no new tenancy is created. In P. Ratnam's case (supra) the Bombay High Court held that true date of the commencement of the tenancy month is the date of the tenancy which was in force between the tenants and the previous owner in absence of any evidence to suggest that the date was altered. Thus, the provisions of Section 14(3) of the Act are not attracted in the instant case."
6. The Single Bench of this court also considered the provisions of Section 14(3) of the Act of 1950 and held that sub-Section (3) of Section 14 of the Act of 1950 makes a provision that no suit for eviction shall lie against a tenant on the ground of reasonable and bona fide requirement of the landlord before the expiry of five years from the date the premises were let out to the tenant.
7. In the matter of Late Mahadev & Ors., Vs. Babu Lal & Ors.:
2006(4)RDD 1868 Raj., the Single Bench of this court in para 12 held as under:-
"12. The another aspect of the matter as discussed above, is also that there is no intention of the legislature to bar such a decree of eviction after a period of five years from the first date of tenancy even if it were to be held that a fresh period of five years would be available to the tenant from the new (Downloaded on 20/04/2020 at 08:39:22 PM) (8 of 16) [Civil Reference No.4/2020] landlord upon change of ownership though it is not so held, as discussed above. The words of Section 14(3) are "no suit......... shall lie against a tenant" and not "no suit shall be instituted". There is a difference between the two words 'instituted' and 'lie'. The word 'instituted' denotes a point of time whereas the word 'lie' denotes a period of time. Therefore, even if a suit is instituted within a period of five years, it may be held to be irregularly instituted but if decree of eviction is passed after five years, the said irregularity gets cured over the period, by lapse of time and the purpose of protection given by Section 14(3) of the Act is achieved with the lapse of five years and after five years, if such a decree of eviction is passed, such decree cannot be said to be hit by Section 14(3) of the Act and cannot be declared to be a nullity for this reason. This is so because the decree of eviction is not merely a determination of right of the landlord to evict the tenant from tenanted premises but also a relief granted on the grounds of eviction established before the Court of law. If at the time of grant of such relief the statutory bar does not come in the way of the Court, it can always be so granted."
8. While considering Section 14(3) of the Act of 1950, the Single Bench of this Court held that if the suit is instituted prior to expiry of five years' period on the ground of bona fide and personal necessity and if the decree of eviction is passed after five years, such irregularity gets cured over the period by lapse of time and the purpose of protection given by Section 14(3) of the Act of 1950 is achieved with the lapse of five years and after five years if such a decree of eviction is passed, such decree cannot be said to be hit by Section 14(3) of the Act of 1950 and cannot be declared to be a nullity for this reason.
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9. Another Single Bench of this Court in the matter of M/s.
Vadhumal Kanhaiyalal & Ors. Vs. Hemchand & Ors., WLC (Raj.) UC 2007 page 270, relying upon the judgment in the matter of Late Mahadev & Ors. Vs. Babu Lal & Ors. (supra), held in para-11 as under :-
"11. Mr. Sanjay Joshi, the learned counsel for the plaintiff-respondents has also drawn the attention of this Court towards the judgment of this Court in the case of Late Mahadev and ors Vs. Babu Lal and ors., 2006(4) RRD 1868 (Raj.) wherein this Court held that the words in Section 14(3) are "no suit shall lie against a tenant" and not "no suit shall be instituted". The word "instituted" denotes a point of time whereas the word "Lie" denotes a period of time. Therefore, even if a suit is instituted within the period of five years, it may be held to be irregularly instituted suit but if decree of eviction is passed in such a suit after five years, the said irregularity gets cured over the period, by lapse of time and the purpose of protection given to the tenant under Section 14(3) of the Act is achieved and such decree passed after five years cannot be said to be hit by Section 14(3) of the Act and cannot be declared to be a nullity for this reason. In the present case, admittedly the decree has been passed much after a period of five years, therefore, even if it was taken to be a case of a new tenancy, the said ground is not available to the tenant appellants for setting aside the decree."
10. Learned Senior Counsel Sh. N.K. Maloo, appearing on behalf of the appellant/tenant relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Martin & Harris Ltd. Vs. VIth Additional District Judge and others, reported in (1998) 1 SCC 732 and also on the judgment passed by the Hon'ble Supreme (Downloaded on 20/04/2020 at 08:39:22 PM) (10 of 16) [Civil Reference No.4/2020] Court in the matter of Anandilal Bhanwarlal and ors. vs. Smt. Kasturi Devi Ganeriwala and ors., reported in AIR 1985 SC 376.
Learned Senior Counsel further submitted that the view taken by the Single Bench in the matter of Kahtoon Begum (deceased) through her LRs Vs. Bhagwan Das & Ors. (supra) is a correct view which is in consonance with the provisions of sub-Section (3) of Section 14 of the Act of 1950. Learned Senior Counsel further submits that a bare reading of sub-Section (3) of Section 14 of the Act of 1950 clearly shows that no suit shall lie against the tenant on the ground of bona fide and personal necessity where the premises are let out for commercial or business purposes. Learned Senior Counsel further submits that the view taken by the Single Bench in the matter of Late Mahadev & Ors. Vs. Babu Lal & Ors.
and M/s Vadhumal Kanhaiyalal & Ors. Vs. Hemchand & Ors. are not the correct view and is contrary to the provisions of the Act of 1950.
11. On the other hand, learned Senior Counsel Sh. A.K. Bhandari appearing for the respondent/landlord supported the view taken by the Single Bench of this court in the matter of Late Mahadev & Ors. Vs. Babu Lal & Ors. and M/s Vadumal Kanhaiyalal & Ors. Vs. Hemchand & Ors. and submits that the intention of the legislature is to safeguard and protect the interest of the tenant. Learned Senior Counsel further submits that the word used in the Act and the intention of the legislature is to protect the tenant for five years. Learned Senior Counsel further submits that even if the suit has been filed prior to expiry of five years' period and ultimately the decree is passed after five years then the purpose of the Act would be served and the decree cannot be said to be a nullity.
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12. Learned Senior Counsel appearing for the respondent-
landlord relied upon the judgments passed by the Hon'ble Supreme Court in the matter of B. Banerjee Vs. Smt. Anita Pan, reported in AIR 1975 SC 1146. Learned Senior Counsel further submits that inspite of suit being prematured on the date of institution, the court may still grant relief to the plaintiff if no manifest injustice or prejudice is caused to the party proceeded against. The immature suit will automatically become mature with the passage of time. The present suit cannot therefore be dismissed on the ground of non-maintainability.
13. Learned Counsel Sh. Maneesh Sharma, appearing as Intervener submitted that the provisions of Section 14(3) of the Act of 1950 be enforced by the Courts in strict sense and the hardship or inconvenience to either party may not be taken into consideration while enforcing the provisions of the Act and in support of argument, made reference of the Maxim Dura Lex Sed Lex (The Law is hard but it is the Law). Counsel further submits that according to the settled principles of interpretation the hardship or inconvenience to either party cannot alter or change the meaning of the language mentioned in the Act by the legislature. Counsel further submits that if the language is plain and allows only one meaning then the same should have been given effect to. Counsel further submits that Section 14(3) of the Act of 1950 bars even the institution of the suit. In support of his contentions, counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Rohitash Kumar and others Vs. Om Prakash Sharma and others, reported in (2013) 11 SCC 451 where in paras-23 to 26 it has been held as under :-
(Downloaded on 20/04/2020 at 08:39:22 PM)(12 of 16) [Civil Reference No.4/2020] Hardship of an individual
23. There may be a statutory provision, which causes great hardship or inconvenience to either the party concerned, or to an individual, but the court has no choice but to enforce it in full rigour. It is a well- settled principle of interpretation that hardship or inconvenience caused cannot be used as a basis to alter the meaning of the language employed by the legislature, if such meaning is clear upon a bare perusal of the statute. If the language is plain and hence allows only one meaning, the same has to be given effect to, even if it causes hardship or possible injustice. [Vide CIT(Ag) v. Keshab Chandra Mandal and D.D. Joshi v. Union of India]
24. In Bengal Immunity Co. Ltd. v. State of Bihar (SCC p.685, para 43) it was observed by a Constitution Bench of this Court that, if there is any hardship, it is for the legislature to amend the law, and that the court cannot be called upon to discard the cardinal rule of interpretation for the purpose of mitigating such hardship. If the language of an Act is sufficiently clear, the court has to give effect to it, however inequitable or unjust the result may be. The words, "dura lex sed lex" which mean "the law is hard but it is the law" may be used to sum up the situation. Therefore, even if a statutory provision causes hardship to some people, it is not for the court to amend the law. A legal enactment must be interpreted in its plain and literal sense, as that is the first principle of interpretation.
25. In Mysore SEB v. Bangalore Woollen Cotton & Silk Mills Ltd. (AIR p.1139, para 27) a Constitution Bench of this Court held that, "inconvenience is not" a decisive factor to be considered while interpreting a (Downloaded on 20/04/2020 at 08:39:22 PM) (13 of 16) [Civil Reference No.4/2020] statute. In Martin Burn Ltd. v. Corpn. Of Calcutta this Court, while dealing with the same issue observed as under (AIR p.535, para 14) "14........ A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a court likes the result or not." (CIT v. vegetables Products Ltd. and Tata Power Co. Ltd. v. Reliance Energy Ltd.)
26. Therefore, it is evident that the hardship caused to an individual, cannot be a ground for not giving effective and grammatical meaning to every word of the provision, if the language used therein is unequivocal."
14. Counsel further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Vijay Narayan Thatte and others Vs. State of Maharashtra and others, reported in (2009)9 SCC 92, where in para-22 it has been held as under :-
"22. In our opinion, when the language of the statute is plain and clear then the literal rule of interpretation has to be applied and there is ordinarily no scope for consideration of equity, public interest or seeking the intention of the legislature. It is only when the language of the statue is not clear or ambiguous or there is some conflict, etc. or the plain language leads to some absurdity that one can depart from the literal rule of interpretation. A perusal of the proviso to Section 6 shows that the language of the proviso is clear. Hence the literal rule of interpretation must be applied to it. When there is a conflict between the law and equity it is the law which must prevail. As stated in the Latin maxim dura lex sed lex which means "the law is hard but it is the law".(Downloaded on 20/04/2020 at 08:39:22 PM)
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15. Counsel further submits that when the language of the statute is plain and clear then literal rule of interpretation has to be applied. Counsel further relied upon the judgment in the matter of Raghunath Rai Bareja and another Vs. Punjab National Bank & others, reported in (2007) 2 SCC 230 where in para-48 it has been held as under :-
"48. No doubt in some exceptional cases departure can be made from the literal rule of the interpretation e.g. by adopting a purposive construction, Heydon's mischief rule, etc. but that should only be done in very exceptional cases. Ordinarily, it is not proper for the court to depart from the literal rule as that would really be amending the law in the garb of interpretation, which is not permissible vide J.P. Bansal v. State of Rajasthan, State of Jharkhand v. Govind Singh. It is for the legislature to amend the law and not the Court vide State of Jharkhand v. Govind Singh. In Jinia Keotin v. Kumar Sitaram Manjhi this Court observed (SCC p.733, para 5) that the court cannot legislate under the gab of interpretation. Hence there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the courts. In fact, judicial legislation is an oxymoron."
16. We have considered the arguments raised before us by the respective counsels for the parties and have also gone through the judgments passed by the Hon'ble Supreme Court referred by the respective counsels for the parties. But before answering the question referred by the learned Single Judge, we would like to make it clear that we are not expressing any opinion on the merits of the present case and the point which has been referred for (Downloaded on 20/04/2020 at 08:39:22 PM) (15 of 16) [Civil Reference No.4/2020] consideration is a question of law on which we are expressing our view.
17. Apart from considering the provisions of Section 14(3) of the Act of 1950, on perusal of the other provisions referred to by the respective counsel pertaining to eviction of the tenants under different Acts of the States, we find that the language used therein is quite distinct than the language used in the provisions of Section 14(3) of the Act of 1950.
18. A plain reading of the provisions of Section 14 (3) of the Act of 1950 clearly shows that there is a complete bar on filing the suit against a tenant on the ground of personal and bona fide necessity before the expiry of five years where the premises are let out for commercial or business purposes, on the ground set forth in Clause (h) of Section 13(1) of the Act of 1950. As per the literal rule of interpretation, if there is no ambiguity in the language used in the Act then no view can be taken contrary to the language used in the Act. If the language is plain and clear and allows only one meaning then the same should be given effect to. The language of the provisions of Section 14(3) of the Act of 1950 is sufficiently clear and it has to be given effect to and the hardship or inconvenience to either party may not be taken into consideration while enforcing the provisions of the Act. The hardship or inconvenience to either party cannot alter or change the meaning of the language mentioned in the Act by the legislature.
19. The language used by the legislature in the provisions of Section 14(3) of the Act of 1950 being clear, in our view literal rule of interpretation must be applied and when there is a conflict between the law and equity it is the law which must prevail.
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20. Thus we are of the view that no suit shall lie against a tenant on the ground of reasonable and bonefide requirement of the landlord before the expiry of five years from the date the premises were let out to the tenant for commercial or business purposes.
We answer the reference accordingly and the second appeal be listed before the learned Single Bench for decision on merits.
(INDERJEET SINGH),J (INDRAJIT MAHANTY),CJ VS Shekhawat/-
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