Rajasthan High Court - Jaipur
Amar Chand vs Smt Vijaya on 8 December, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 91/2009
Amarchand S/o Sh. Chhail Gahlot R/o C/o Riddhi Siddhi Photo
Studio, In-Front of K.M. Market, Pali Bazar, Beawar District
Ajmer
----Appellant/Defendant
Versus
Smt Vijaya W/o Sh. Sunil Kumar Gangwal R/o Gandhi Nagar,
Bank Colony, Ajmer Road Beawar, District Ajmer Raj.
----Respondent/Plaintiff
For Appellant(s) : Mr. Ajeet Bhandari, Sr. Advocate
assisted by Mr. Jai Sharma &
Mr. Jitendra Mishra
For Respondent(s) : Mr. J.P. Gupta
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
08/12/2022
REPORTABLE
1. By way of instant first appeal, filed under Section 96 of the
Code of Civil Procedure, appellant-defendant-tenant has
challenged the judgment and decree dated 12.01.2009 passed in
Civil Suit No.85/2007 (71/2005) by the Court of Additional District
Judge (Fast Track) No.2, Beawar, whereby and whereunder civil
suit for rent and eviction filed by respondent-plaintiff-landlord has
been decreed and respondent-plaintiff has been held entitled to
get the vacant possession of rented premises with due rent of
thirteen months as also for mesne profits @ Rs.250/- per month
from the date of suit till recovery of possession.
2. The relevant facts of present case as culled out from the
record are that in respect of rented premises, one room and inside
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kothari (dark room) situated at first floor in property Municipal
No.5/167 (new No.1) at Nagar Parishad, Beawar, respondent-
plaintiff instituted present suit for eviction on 12.08.2005 stating
inter alia that appellant-defendant is tenant in the rented premises
@ Rs.250/- per month and after purchasing the property by
plaintiff, he has attorned the plaintiff as his landlord. It was stated
that defendant-tenant paid last rent for month of 10.06.2004 to
09.07.2004 vide receipt No.67 dated 10.07.2004 and thereafter,
rent w.e.f 10.07.2004 onwards has not been paid. It was stated
that defendant-tenant has caused damages to the rented premises
and therefore, plaintiff, through legal notice dated 11.07.2005
issued under Section 106 of the Transfer of Property Act, has
terminated the tenancy of defendant. It was stated that legal
notice dated 11.07.2005 has been served upon defendant-tenant,
who sent reply notice dated 15.07.2005 through his advocate and
thereafter, plaintiff served one rejoinder notice dated 23.07.2005
upon defendant. It was further stated that since defendant-tenant
did not agree to vacate the rented premises nor paid due rent,
therefore, present civil suit for eviction was instituted to get
vacant possession of rented premises from tenant along with due
arrears of rent @ Rs.250/- per month from 10.07.2004 to
09.08.2005, it means for thirteen months and for the subsequent
period from the date of suit, plaintiff claimed mesne profits @
Rs.3000/- per month.
3. It is worthy to note here that earlier provisions of Rajasthan
Premises (Control of Rent and Eviction) Act, 1950 (for short "the
Act of 1950") was made applicable on the rented premise situated
within the Municipal Council, Beawar vide notification dated
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27.11.1957, w.e.f. 27.11.1957 but later on, the Act of 1950 was
repealed from the date of notifying the new act i.e. the Rajasthan
Rent Control Act, 2001 (for short "the Act of 2001") w.e.f.
01.04.2003. It may be noted that by virtue of Section 32(1) of the
Act of 2001 "Repeal and savings", it is clearly stated that
Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (the
Act No.17 of 1950) shall stand repealed w.e.f. the date notified
under Sub-Section (3) of Section 1 of this Act. Thus, the Act of
1950 had been repealed after coming into force of the Act of
2001. It may be noted that as per provisions of the new act i.e.
the Rajasthan Rent Control Act, 2001 shall made applicable in first
instance to such of Municipal areas which are comprising District
Headquarters in the State and applicability of the Act of 2001, to
other municipal areas was subject to notification by the State
Government, specify from time to time. Therefore, at the time of
institution of the present eviction suit i.e. 12.08.2005, rented
premises situated in municipal area of Beawar, since no
notification to extend the Rajasthan Rent Control Act 2001 in
Municipal areas of Beawar, was issued by the State Government,
therefore, the Act of 2001 was applicable and as far as the old
rent control act i.e. the Act of 1950 is concerned, the same had
repealed. Thus at the time of institution of the present eviction
suit, no State Rent Control Act was in operation in the Municipal
areas of Beawar and therefore, plaintiff invoked provisions of the
Transfer of Property Act, and due to committing default in
payment of rent and causing substantial damages in the rented
property, terminated the tenancy of defendant-tenant by issuing a
legal notice dated 11.07.2005 invoking provisions of Section 106
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of the Transfer of Property Act and thereafter, the present suit for
recovery of arrears of rent and eviction was instituted on
12.08.2005.
4. Defendant-tenant, after service of notice of civil suit,
submitted his written statement on 26.04.2006. Defendant
admitted his tenancy in the rented premises as also the factum of
attornment of plaintiff as his landlord. Defendant admitted to pay
the rent @ Rs.250/- per month last for month of 10.06.2004 to
09.07.2004, but contended that for the subsequent period,
plaintiff refused to receive the rent, therefore, defendant remitted
the rent from 10.07.2004 onwards through money order, but
plaintiff refused to receive the money order also. Defendant
contended that though rent is due from 10.07.2004 onwards but
defendant is not defaulter and further he denied to cause any
substantial damages. Defendant admitted to receive the legal
notice dated 11.07.2005, terminating his tenancy and contended
to serve the reply notice. Defendant contended that plaintiff has
arbitrarily terminated the tenancy on the ground of default in
payment of rent, whereas he is not defaulter and therefore, equity
lies in his favour.
5. It is worthy to note here that defendant-tenant nowhere took
a defence in the written statement that the old rent control Act of
1950 has not been repealed, after promulgation of the new act i.e.
the Act of 2001 for the Municipal areas of Beawar. Defendant also
nowhere contended that provisions of the Act of 2001 are
applicable in the municipal areas of Beawar, where the rented
premises of defendant is situated. Thus, as far as institution of the
present eviction suit, after termination of tenancy of defendant-
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tenant invoking provisions of Section 106 of the Transfer of
Property Act was not in question and there is no defence from the
side of defendant-tenant that eviction suit under provisions of the
Transfer of Property Act is not maintainable.
6. Rejoinder was filed by the plaintiff-landlord which was taken
on record.
7. According to rival pleadings of both parties, learned trial
court framed as many as five issues including issue of relief and
the principle issue is issue No.1 i.e. "as to whether tenancy of
defendant-tenant has been terminated by the plaintiff by issuing
legal notice dated 11.07.2005?" Other issues are in respect of
recovery of damages to the tune of Rs.45,000/-, recovery of due
rent for thirteen months @ Rs.250/- per month and recovery of
mesne profits @ Rs.3,000/- per month from the date of suit.
8. Both parties adduced their oral as well as documentary
evidence. Plaintiff produced rent receipt No.67 dated 10.07.2004
(Exhibit 1), legal notice dated 11.07.2005 (Exhibit 2), rejoinder
notice dated 23.07.2005 (Exhibit 5), and postal receipt and
acknowledgement receipts were also exhibited. Statements of
plaintiff Smt. Vijaya (PW-1) and one witness Ratanlal Jatav (PW-
2), were recorded. In rebuttal, defendant deposed his own
statements as DW-1 and produced three witnesses DW-2, DW-3
and DW-4 as also exhibited refusal receipts of money order and
few photographs of rented premises as well as other documents,
to deny the claim of damages and mesne profits @ Rs.3,000/- per
month.
9. Learned trial court, after appreciation of evidence recorded a
fact finding that the relationship of landlord and tenant between
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plaintiff and defendant in respect of rented premises is not in
dispute. It is also not in dispute that through receipt (Exhibit 1),
last rent from 10.06.2004 to 09.07.2004 was paid by defendant @
Rs.250/- per month to plaintiff. It is also not in dispute that rent
from 10.07.2004 is unpaid although defendant states to remit rent
through money order, but rent was not received. Therefore, the
trial court observed that indisputably rent @ Rs.250/- is due from
10.07.2004 to the date of filing of the suit, for thirteen months.
In respect of issue No.1 relating to termination of tenancy of
the defendant, the trial court recorded a fact finding that issuance
of legal notice dated 11.07.2005 (Exhibit 2), terminating tenancy
of defendant under Section 106 of the Transfer of Property Act, is
not in dispute and service of notice upon defendant is also not in
dispute. Learned trial court relied upon the judgment of Hon'ble
the Supreme Court delivered in case of Calcutta Credit
Corporation Vs. Happy Homes Pvt. Ltd. [AIR (1968) SC
471] and observed that the tenancy of defendant stands
terminated after service of notice under Section 106 of the
Transfer of Property Act. It was observed that validity of notice for
termination dated 11.07.2005, is not in dispute and finally trial
court held that tenancy of defendant has been terminated by
notice dated 11.07.2005 (Exhibit 2). As such issue No.1 was
decided in favour of plaintiff.
The issue relating to recovery of damages of Rs.45,000/-,
was decided against plaintiff and the trial court allowed the mesne
profits @ Rs.250/- per month only, from the date of suit to
delivery of possession, which is the last paid rent, as against the
claim of mesne profits @ Rs.3,000/- per month by the plaintiff.
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Finally, vide judgment and decree dated 12.01.2009, the suit
has been decreed in favour of plaintiff to get vacant possession of
the rented premises from the defendant within a period of two
months along with arrears of rent for thirteen months prior to date
of suit @ Rs.250/- per month and for mesne profits @ Rs.250/-
per month from the date of suit till delivery of possession.
10. Defendant-tenant has challenged the judgment and decree
dated 12.01.2009 by way of the instant first appeal.
11. This first appeal was admitted for hearing and during course
of first appeal, with consent of counsel for both parties,
defendant-tenant agreed to pay arrears of rent and mesne profits
@ Rs.750/- per month as per Order dated 16.03.2009.
12. It may be noted that State Government, vide notification
dated 11.07.2014 extended the Act of 2001 in Municipal areas of
Beawar, thereafter, during course of the present first appeal,
appellant-defendant has moved an application dated 17.08.2017
under Order 6 Rule 17 read with Section 151 CPC, to included few
additional grounds in the memo of appeal. By way of additional
grounds, appellant sought to challenge the impugned judgment
and decree dated 12.01.2009, on the ground that present suit for
eviction instituted invoking the termination of tenancy under
Section 106 of the Transfer of Property Act itself is not
maintainable because the tenancy of defendant-tenant was
protected by provisions of Rajasthan Premises (Control of Rent
and Eviction) Act, 1950, which were made applicable on the
rented premises situated in municipal areas of Beawar vide
notification No. F 7 (ii)H(D)/57 dated 27.11.1957 and such
notification would continue to be in force, by virtue of Section 27
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of the Rajasthan General Clauses Act, despite repeal of the Act of
1950 by provisions contained under Section 32(1) of the
Rajasthan Rent Control Act, 2001. Therefore, appellant-defendant
has sought to raise an argument that it is true that at the time of
institution of the present suit for eviction dated 12.08.2005, the
Rajasthan Rent Control Act, 2001 was not made applicable and
has not extended in the municipal areas of Beawar where the
rented premises is situated, nevertheless states that plaintiff-
landlord could not have invoked provisions of Section 106 of the
Transfer of Property Act because in spite of repeal of the Act of
1950 by virtue of Section 32(1) of the Act of 2001, the same
would be treated in operation as the notification dated 27.11.1957
through which the Act of 1950 was made applicable in the
municipal areas of Beawar remains continue by virtue of Section
27 of the Rajasthan General Clauses Act, more so when provisions
of the Act of 2001 have been extended to Municipal areas of
Beawar w.e.f. 11.07.2014.
13. The application for seeking addition of such grounds at the
stage of first appeal, has been opposed by the respondent-
plaintiff. This Court vide order dated 15.09.2017, observed that
application for addition of such ground in the memo of appeal shall
be heard along with first appeal.
14. Therefore, arguments of counsel for both parties have been
heard on the application for seeking to add new grounds in the
memo of appeal as also on the first appeal itself at length.
15. During course of arguments, from the side of appellant-
defendant, the impugned judgment and decree has not been
challenged on the fact findings recorded by the trial court in
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respect of issuing legal notice dated 11.07.2005 (Exhibit 2),
terminating the tenancy of defendant under Section 106 of the
Transfer of Property Act and decreeing the suit for eviction under
provisions of Section 106 of the Transfer of Property Act, but
learned senior counsel has confined his arguments in respect of
maintainability of the suit for eviction on the ground of termination
of tenancy under Section 106 of the Transfer of Property Act,
pressing the new grounds sought to be added in the memo of
appeal that the rented premises situated in municipal area of
Beawar was protected by the State Rent Act of 1950, at the time
of filing of eviction suit and though provisions of the Act of 2001
were not extended to the Municipal area of Kishangarh at that
time, nevertheless until its applicability, the provisions of old Act
of 1950 remain operative, which were made applicable vide
notification dated 27.11.1957. He argued that provisions of new
act i.e. the Act of 2001, have been extended w.e.f. 11.07.2014
and as far as grounds to evict the tenant are concerned, are not
inconsistent with the provisions of the old Act of 1950, therefore,
by virtue of the Section 27 of the Rajasthan General Clauses Act,
the notification dated 27.11.1957 remains effective and operative
in the Municipal areas of Beawar, for the intervening period and at
the time of filing the present suit on 12.08.2005, and therefore,
landlord-plaintiff could have instituted the eviction suit only on the
grounds of eviction as permissible under Section 13 of the old Act
of 1950 and the present eviction suit filed by landlord terminating
the tenancy of tenant under Section 106 of the Transfer of
Property Act, is not maintainable in law at all.
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In support of his contentions, learned counsel for appellant
has placed reliance on the judgment of Hon'ble the Supreme Court
delivered in case of Harkesh Chand Vs. Krishan Gopal Mehta
[AIR (2017) SC 969].
16. Per contra, learned counsel for respondent-landlord has
argued that firstly, no such defence was raised by the defendant-
tenant in his written statement before the trial court rather
defendant-tenant moved applications under Order 7 Rue 11 CPC
and under Order 6 Rule 17 CPC during course of trial that after the
second amendment of 2005 in the Rajasthan Rent Control Act,
2001, this Act be treated as applicable in the municipal areas of
Beawar, w.e.f. 22.02.2006 and therefore, tenancy of defendant is
protected under provisions of the Act of 2001. Both applications
were dismissed by the trial court vide orders dated 16.01.2008 &
15.05.2008. Learned counsel for respondent argued that in catena
of judgments passed by the Rajasthan High Court, it has been well
settled that the Act of 1950 has stood repealed in whole State of
Rajasthan after promulgation of the Act of 2001 by virtue of
Section 32(1). Therefore, the argument raised by the learned
counsel for appellant in respect of having applicability of the Act of
1950, in the municipal areas of Beawar is unfounded and
unacceptable. He further submitted that at the time of institution
of the present civil suit, old Act of 1950 had repealed and new Act
of 2001 was not extended to the municipal area of Beawar,
therefore, provisions of the Transfer of Property Act were
applicable and invoking such provisions of law, the tenancy of
defendant-tenant was terminated by issuing a legal and valid
notice dated 11.07.2005 under Section 106 of the Transfer of
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Property Act and thereafter the present suit was instituted, as
such the impugned judgment and decree passed by the trial court
is well within the parameters of law and warrants no interference.
In support of his contentions, learned counsel for respondent
has placed reliance on following judgments:-
Kamal Kishore Chitlagiya Vs. Smt. Ramkawari Devi Jhawar [(2013) 1 WLC (Raj.) 586];
Ram Narayan Vs. Asha Devi [(2010) RLW (Raj.) 2426];
Nand Kishore Vs. Vishwanath Kayal [S.B. Civil Revision Petition No.9/2012 decided on 21.06.2012];
Gordhan Das Vs. Satya Narayan Dhabhai [(2015) 1 WLN 309] & Shankarlal Nadani Vs. Sohanlal Jain [(2022) LiveLaw SC 367]
17. Heard & considered.
18. At the outset, it may be noticed that provisions of Order 41 Rule 2 CPC envisage that the appellate court in deciding appeal, shall not confine to the grounds of objections set forth in the memorandum of appeal and with the leave of the court, appellant may be allowed to urge or to be heard in support of any other grounds of objection not set forth in the memorandum of appeal provided, sufficient opportunity should be given to the contesting and affected party on such additional grounds. The appellant, although has filed application dated 17.08.2017, seeking to add few additional grounds in the memo of appeal, under Order 6 Rule 17 Read with Section 151 CPC, but by way of this application, appellant is seeking leave to add few additional grounds in the (Downloaded on 15/12/2022 at 11:52:04 PM) (12 of 24) [CFA-91/2009] memo of appeal, which virtually falls within scope of Order 41 Rule 2 CPC. Respondent has been given full opportunity to contest and oppose such additional grounds. Therefore, in the opinion of this Court, instead of declining to hear appellant on additional grounds, it would be just and proper to consider the additional grounds on merits on which, opportunity to make their respective submissions has been accorded to learned counsel for both parties. Therefore, the additional grounds sought to be added by the appellant in the memo of appeal are taken on record and application stands disposed of accordingly.
19. Having heard learned counsel for both parties and from perusal of record, this is not in dispute that the respondent landlord instituted the present civil suit, on the basis of termination of tenancy of defendant-tenant vide notice dated 11.07.2005 (Exhibit 2) under the provisions of Section 106 of the Transfer of Property Act and as far as validity and service of this legal notice dated 11.07.2005 is concerned, there is no dispute between parties and during the course of arguments, findings of issue No.1 have not been questioned. Since the tenancy in respect of the rented premises between plaintiff and defendant is not in dispute, therefor, the impugned judgment and decree for eviction and arrears of rent does not warrant any interference, in respect of decreeing the suit on the ground of termination of tenancy under Section 106 of the Transfer of Property Act.
20. The only question which falls for consideration before the this Court, in the present first appeal is:
"As to whether the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, were operative (Downloaded on 15/12/2022 at 11:52:04 PM) (13 of 24) [CFA-91/2009] and applicable in the municipal area of Beawar, where the rented premises is situated, at the time of institution of the present suit on 12.08.2005 and the civil suit filed by respondent-landlord for eviction of tenant after termination of his tenancy under Section 106 of the Transfer of Property Act, is not maintainable?"
21. In order to decide the aforesaid issue falls for consideration in the present first appeal, the factual matrix between the parties is not in dispute that the present civil suit was instituted on 12.08.2005, after serving a legal notice dated 11.07.2005 (Exhibit
2) upon defendant-tenant, terminating his tenancy under provisions of Section 106 of the Transfer of Property Act. Defendant-tenant in his written statement, admitted himself to be tenant of plaintiff and to pay last rent @ Rs.250/- per month for month of 10.06.2004 to 09.07.2004 vide receipt dated 10.07.2004 (Exhibit 1) and did not dispute the validity or service of legal notice dated 11.07.2005 terminating his tenancy nor has raised any defence in his written statement that in the municipal area of Beawar, where the rented premises is situated, the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, are in operation and the civil suit under provisions of the Transfer of Property Act is not maintainable.
22. During course of trial, from the side of defendant-tenant, no such defence was raised, in respect of having applicability of the Act of 1950 in the municipal area of Beawar, in spite of repealing of this Act of 1950, after notification of the Rajasthan Rent Control Act, 2001 w.e.f. 01.04.2003. Since the enactment of the Rajasthan Rent Control Act, 2001, notified in the Rajasthan (Downloaded on 15/12/2022 at 11:52:04 PM) (14 of 24) [CFA-91/2009] Gazette and came in effect w.e.f. 01.04.2003, is not in dispute and as per Section 1(2) of this Act, it is clear that the Act of 2001 shall extend in first instance to such municipal areas which are comprising the District Headquarters in the State of Rajasthan and later on to such other municipal areas, as the State Government may by notification in official gazette specify from time too time and further by virtue of Section 32(1) of the Act of 1950 shall stand repealed w.e.f. date of notification of this Act Therefore, defendant has neither taken defence that the Act of 1950 is applicable in the Municipal area of Beawar, after its repeal w.e.f. 01.04.2003 nor any defence was taken that provisions of new Act of 2001 have been made applicable in the municipal area of Beawar, at the time of institution of the present eviction suit on 12.08.2005.
23. From perusal of record of the trial court, it stands clear that during course of trial, defendant-tenant moved application under Order 7 Rue 11 (d) CPC dated 12.11.2007 stating inter alia that provisions of the Act of 2001 will be treated as applicable and operative in the municipal towns as well w.e.f. 22.02.2006, therefore, the civil suit under the Transfer of Property Act be rejection but in this application, defendant-tenant himself admits and does not dispute that the Act of 1950 has been repealed and not applicable in the municipal area of Beawar. This application was dismissed on merits by the trial court vide order dated 16.01.2008 with clear finding that unless notification by the State Government under Section 1(2) of the Act of 2001 is not notified, provisions of the Act of 2001 may be not held applicable in the municipal area of Beawar. Thus proceedings of present civil suit (Downloaded on 15/12/2022 at 11:52:04 PM) (15 of 24) [CFA-91/2009] under provisions of the Transfer of Property Act were continued. Thereafter, again defendant-tenant sought to amend the written statement, for addition of similar objection that the Act of 2001 has become applicable in the municipal area of Beawar, w.e.f. 22.02.2006, therefore, application under Order 6 Rule 17 dated 01.03.2008 was moved. This application was dismissed by the trial court on merits vide order dated 15.05.2008 with same reasoning as already observed in the previous order dated 12.11.2007, dismissing application under Order 7 Rule 11 CPC. Thus finally, the trial of civil suit proceeded and culminated by passing decree for eviction dated 12.01.2009 under provisions of the Transfer of Property Act.
24. Now when the State Government has issued notification dated 11.07.2014, extending the Act of 2001 in Municipal areas of Beawar, during course of this first appeal, learned counsel has raised this plea first time vide application dated 17.08.2017 that the present civil suit, on the basis of termination of tenancy under Section 106 of the Transfer of Property Act, is not maintainable, as by virtue of notification dated 27.11.1957, the provisions of the Act of 1950 were made applicable in the property situated within Municipal Council of Beawar, therefore, such provisions be held to be in operation in the Municipal areas of Beawar, even after repeal of the Act of 1950 w.e.f. 01.04.2003, after notification of the new Act of 2001.
25. In case of Harkesh Chand (Supra), on which learned counsel for appellant-tenant has placed reliance, it was a case where the rented premises was situated in a rural area in the Village of Daishwala, Doiwala Town, located in the Dehradun, District (Downloaded on 15/12/2022 at 11:52:04 PM) (16 of 24) [CFA-91/2009] Uttarakhand. In that area, tenancies were protected under provisions of United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (Act No. III of 1947) vide notification dated 31 st March, 1949. The Act of 1947 came to be repealed w.e.f. 15 th July, 1972, after promulgation of the new Act i.e. the Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972. The protection of the Act of 1972 was extended to the area of Doiwala Town, by notification w.e.f. 21 st March 1973 and this notification was not inconsistent to the previous notification dated 31st March, 1949 which was issued under the repealed Act of 1947. For the period in between 15 th July 1972, when the Act of 1947 was repealed and from 21 st March 1973, when the protection of the new Act of 1972 was extended, in the area of Doiwala Town, landlord issues a legal notice dated 19 th September, 1972, terminating the tenancy of defendant-tenant invoking Section 106 of the Transfer of Property Act and instituted civil suit on 1 st October, 1972. The defendant tenant before the trial court itself took a defence that the Transfer of Property Act may not be invoked and the defendant-tenant can be evicted only on the grounds, specified in the Act of 1972. It was argued that since grounds of eviction as specified in the Act of 1947, were not inconsistent with the grounds as specified in the Act of 1972, therefore, for the intervening period i.e. in between 15 th July 1972 to 21st March 1973, the protection of the statutory State Act may not be treated as withdrawn. Such defence of tenant was held decided in favour of tenant and the suit under Transfer of Property Act was dismissed by the Court of Civil Judge (Junior Division), Dehradun. The trial court held that even though the Act of 1947 (Downloaded on 15/12/2022 at 11:52:04 PM) (17 of 24) [CFA-91/2009] had been repealed w.e.f. 15th July 1972, and was replaced by the new Act of 1972, yet tenants in the Doiwala Town are protected by the old Act. The Additional District Judge, Dehradun, affirmed the judgment of trial court and dismissed the revision petition of landlord. The landlord approached the High Court of Judicature at Allahabad by way of writ petition. In the writ petition, High Court held the notice, terminating tenancy of tenants as valid and after setting aside orders of trial court and the revisional court, landlord's eviction suit was decreed. When the matter came before Hon'ble the Supreme Court, then the Apex Court held that the suit is untenable under the Transfer of Property Act and accordingly dismissed the suit. Few of the relevant paragraphs i.e. Para Nos. 19, 20, 21, 27 and 30 are being extracted hereunder:
"19. We find nothing inconsistent between the protection accorded to the tenants under the Act of 1947 as applied to Doiwala town by the notification dated 31st March, 1949, and the protection accorded to the tenants in the re- enacted provision of the Act of 1972, both of which regulated the eviction of tenants in the whole of Uttar Pradesh. Section 21 the later act provided the same restrictions on the eviction of tenants on specified grounds that Section 3(a) of the 1947 Act did. Thus, there is no inconsistency whatsoever found between the two provisions. We also, do not find any express provision to the contrary in the subsequent enactment.
20. The provisions of an Act, and a conditional legislation such as a notification, belong to a different order of things. A statutory instrument (i.e. the notification) itself does not enact the protection to the tenants. The Act of 1947 does that. The notification merely makes the enactment applicable to the Doiwala area. Apparently the purpose of the re- enacted provision is, inter alia, to protect the (Downloaded on 15/12/2022 at 11:52:04 PM) (18 of 24) [CFA-91/2009] tenants from eviction, except on special grounds. Nothing in the Act shows that such a protection was intended to be removed from any area or for that matter, the Doiwala area. In fact, the contrary is clear from the fact that a notification expressly applying the re-enacted provisions to the Doiwala area was issued on the 21st of March, 1973.
Thus, there can be no inconsistency between the notification applying the Act to the Doiwala area, and the re-enacted provisions of the Act unless the Act of 1972 clearly expresses an intention to remove the protection accorded to the tenants from an area.
21. Section 24 of the General Clauses Act, 1904 clearly provides that a statutory instrument issued under a repealed enactment shall continue in force and be deemed to have been made or issued under the re-enacted provisions unless
(a) the re-enacted provision expressly provides otherwise or
(b) it is superseded by a statutory instrument made under the re-enacted provision.
The section further provides that the extent to which the statutory instrument under the repealed enactment shall continue is so far as it is not inconsistent with the re-enacted provisions.
27. We are in respectful agreement with the above observations. Applying the said observations to the present case, it must be held that the notification under the 1947 Act continued in spite of its repeal and the enactment of the 1972 Act. It cannot be said that in the hiatus between the repeal of the 1947 Act and the issuance of a notification applying the 1972 Act to the Doiwala area, the Legislature intended that the tenants had no protection from eviction and there was an unrestricted right to evict them.
30. In the result, we hold that the old Act, i.e. the Act No.III of 1947 applied to the Doiwala area by virtue of notification dated 31st of March, 1949, when the suit for the eviction of the appellant was filed. The suit is untenable (Downloaded on 15/12/2022 at 11:52:04 PM) (19 of 24) [CFA-91/2009] for the want of permission under the provisions of the U.P. Act No. XIII of 1972 and is liable to be dismissed. However, having heard the learned counsels for both sides on the point, and in view of the circumstances of this case, as well as in the interest of justice, we direct that the appellant- tenant shall hand over possession of the premises to the respondent after a period of three years from today. The premise admittedly belongs to the respondent, which he bona fide needs after the said period. Till the time the appellant hands over the possession to the respondent, the appellant shall pay a monthly rent of Rs.4,000/- to the respondent."
Finally Hon'ble the Supreme Court, although dismissed the suit for eviction, however, directed the appellant-tenant to vacate and hand over the possession of rented premises to the respondent-landlord after a period of three years, on payment of monthly rent @ Rs.4,000/-.
26. As far as facts of the present case are concerned, firstly defendant tenant has not raised any defence in the written statement or during course of trial that in the municipal area of Beawar, where the rented premises is situated, the Act of 1950 is applicable by virtue of notification dated 27.11.1957 and such notification may not be treated as repealed by virtue of Section 27 of the Rajasthan General Clauses Act, despite of repeal of the Act of 1950 w.e.f. 01.04.2003 after notification of the new Act of 2001. Secondly, defendant-tenant himself has taken a contrary stand before the trial court that provisions of the Act of 2001 came in operation in the municipal area of Beawar, w.e.f. 22.02.2006 and while taking such objections has admitted that as far as the Act of 1950 is concerned, the same is not applicable and (Downloaded on 15/12/2022 at 11:52:04 PM) (20 of 24) [CFA-91/2009] has stood repealed. Such objection raised by the defendant- tenant, firstly by way of application dated 12.11.2007 under Order 7 Rule 11 CPC and thereafter, by way of an another application dated 01.03.2008 under Order 6 Rule 17 CPC and both applications have been dismissed on merits by the trial court vide orders dated 16.01.2008 and 15.05.2008, therefore, defendant- tenant cannot be allowed to take a somersalt by taking resort to the judgment of Hon'ble the Supreme Court in case of Harksesh Chand (Supra), may not be allowed to take any benefit to the detriment of respondent-landlord.
There is no disagreement to the proposition of law as expounded by the Hon'ble Suprmee Court in case of Harkesh Chand (Supra), but in the given facts and circumstances of the present case, for reasons discussed hereinabove, appellant-tenant may not be allowed to take any resort of this judgment.
27. In case of Kamal Kishore Chitlagia (Supra), the Coordinate Bench of this Court, while placing reliance on the judgments delivered in cases of Ram Narain (Supra) & Nand Kishore (Supra) has held as under:
"10. In the case of Ram Narain & others Vs. Smt. Asha Devi & others reported in 2010 (3) RLW (Raj.) 2426, a specific question was raised as to whether the Old Act does not stand repealed in those areas where the State Government had not made the New Act applicable. The learned Single Bench after elaborate discussion and consideration of various relevant legal provisions and relying upon the case of Kanhaiyalal Vs. Rajaram S.B.Civil Revision Petition No.445/2004 decided on 2.12.2004 came to a conclusion that it cannot be held that the provisions of the Old Act would continue to apply in respect of other Municipal areas other than the areas comprising the District (Downloaded on 15/12/2022 at 11:52:04 PM) (21 of 24) [CFA-91/2009] Headquarters of the State of Rajasthan as no such saving clause has been provided by Section 32 of the new Act.
11. In S.B. Civil Second Appeal No.109/2009 (Vimal Chand Vs. Shri Ram Ballabh) decided on 10.8.2011 learned Single Bench after considering various decisions has held that "Thus, the plain reading of sub-section (1) of Section 32 not leave any room for doubt that the Act of 1950 stood repealed in its entirety w.e.f. 01.04.2003 on coming into force of the Act of 2001 by virtue of sub-section (1) of Section 32, as sub-section (1) of Section 32 the Act of 2001 does not restrict the application of repeal only to the areas to which the Act of 2001 has been made applicable."
12. In the case of S.B. Civil Revision Petition No.9/2012 (Nand Kishore & another Vs. Vishwanath Kayal) decided on 21.06.2012, a specific question was raised on behalf of the petitioner-tenant that in the case of Ram Narain & others Vs. Smt. Asha Devi & others (supra), the provisions of Section 27 of the Rajasthan General Clauses Act were not considered and that decision shall be deemed to have been decided per incurium. In the light of contention raised on behalf of the tenant the question regarding applicability of the Old Act to the remaining Municipal areas of the State of Rajasthan was considered in detail by this Court and it was held that no different view is possible to be taken from the one taken by the learned Single Bench in the case of Ram Narain & others Vs. Smt. Asha Devi & others (supra) even in the light of Section 27 of the Rajasthan General Clauses Act. It was also held that after the repeal of the Old Act and enforcement of the New Act with effect from 1.4.2003, the provisions of the Old Act are not applicable also to the areas of other Municipal Towns of the State of Rajasthan and the relationship between a landlord and tenant is to be governed by the provisions of Transfer of Property Act.
13. So far as withdrawal of protection of Rent Control legislation is concerned, the well settled legal position is that a tenant does not have a vested right under the Rent Control legislation but it has only a protective right and such right can be withdrawn at any time and the tenant can not contend that as at one point of time, he had protection of such legislation, that can never be (Downloaded on 15/12/2022 at 11:52:04 PM) (22 of 24) [CFA-91/2009] withdrawn or that he cannot be left without there being such protection. The tenant enjoys the statutory protection as long as the statute remain in force and is applicable to him but as soon as the statute ceases to be operative, the tenant cannot claim to have continued benefit of the old statutory protection. When the protection does not exist, the normal relations of landlord and tenant come into operation. Merely because at one point of time, the Old Act was applicable to all municipal towns of the State of Rajasthan does not mean any vested right was acquired by the tenants of those town for the continued applicability of the same for all times to come or protection of similar enactment is provided to them. Therefore, in the present case the appellant cannot claim that as the provisions of the new Act has not been made applicable to him, he is entitled to the protection of the Old Act."
In case of Gordhan Das (Supra), the Coordinate Bench of this Court has held as under:
"4....According to him, through the Rajasthan Premises (Control, Rent and Eviction) Act 1950 was repealed as per Section 32 of the Rajasthan Rent Control Act, 2001, the old Act of 1950 had continued to remain in force in the municipal area of Kishangarh, where the suit premises was situated inasmuch as the municipal area of Kishangarh being not the District Headquarter was not included in the notification dated 01.04.2003 issued under Section 1(3) of the Act of 2001, and hence the whole Act of 2001 was not made applicable to the said area of Kishangarh, when the suit was filed Mr. Mantri submitted that the old Act of 1950 being in force, the respondent-plaintiff was required to file the suit under the said Act, and the suit under the T.P. Act was not maintainable."
28. Hon'ble the Supreme Court in case of Shankarlal Nadani (Supra), has discussed in detail the issue about the maintainability (Downloaded on 15/12/2022 at 11:52:04 PM) (23 of 24) [CFA-91/2009] of the eviction suit before the civil court under provisions of the Transfer of Property Act, during the intervening period, where the Act of 2001 was not extended and later on was extended in the Municipal areas of the State of Rajasthan, other than the District Headquarters. It was held that:
"....The Act has come into force in respect of the premises in question on 11.05.2015 i.e., after the civil suit was filed, therefore, the decree could validly be passed and executed. After the applicability of the Act to the area in question, the landlord and tenant dispute can be raised only before the Rent Tribunal but not before the civil court. However, a suit filed before the civil court prior to the applicability of the Act has to be decided by the civil court. A decree passed by the civil court is valid and executable which is not interdicted by the applicability of the Act to the areas in question. The Act is applicable to the area in question from the date the notification came into force and it does not bar the decree of the civil court or the pendency of such civil suit."
Therefore, following the ratio of law as expounded by the Hon'ble Supreme Court in case of Shankarlal Nadani (Supra), this Court finds that the present civil suit for eviction filed by respondent-landlord on 12.08.2005, after termination of the tenancy of appellant-tenant under Section 106 of the Transfer of Property Act was maintainable as at that point of time, indisputably, provisions of the Act of 2001 were not extended in the Municipal areas of Beawar, where the rented premises is situated and the same have been extended by the State Government vide notification dated 11.07.2014, after decreeing the present civil suit vide judgment dated 12.01.2009. (Downloaded on 15/12/2022 at 11:52:04 PM)
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29. Therefore, for discussions made hereinabove, the issue, which falls for consideration before this Court in the present first appeal i.e. "As to whether the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, were operative and applicable in the municipal area of Beawar, where the rented premises is situated, at the time of institution of the present suit on 12.08.2005 and the civil suit filed by respondent-landlord for eviction of tenant after termination of his tenancy under Section 106 of the Transfer of Property Act, is not maintainable?" is decided against the appellant.
30. As a result, the decree for eviction dated 12.01.2009 passed against appellant-defendant-tenant, deserves to be sustained and accordingly, the instant first appeal is hereby dismissed.
31. Although, as per order-sheet dated 19.10.2022, learned counsel for appellant, on instructions of appellant, has declined to take time to vacate the rented premises, however, this Court, after affirming the decree for eviction passed against appellant- defendant, taking into consideration the fact of his long tenancy, grants three months time to vacate and hand over the possession of rented premises to the respondent-landlord, subject to payment of due arrears of mesne profits, if any, and future mesne profits.
32. Record of court below be sent back.
33. All pending application(s), if any, stand(s) disposed of.
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