Patna High Court
Kishori Lal vs Debi Prasad Kejriwal And Anr. on 21 July, 1953
Equivalent citations: AIR 1954 PATNA 70
JUDGMENT
Rai J.
1. This appeal by the plaintiff is directed against the judgment and decree of the Addi-tional District Judge of Bhagalpur dismissing his suit.
2. The plaintiff instituted the present suit for eviction of the defendants from a shop described in schedule A attached to the plaint. On 19-12-1939, defendant 1 in his capacity as karta of the joint family of the defendants, took on lease the shop for a period of three years. On 23-11-1940, the defendants came in possession of the same. On the termination of the period of the lease, the plaintiff gave on 9-11-1943, a three months' notice to defendant 1 to vacate the shop by 8-2-1944. On 4-2-1944, the plaintiff filed an application against defendant 1 before the Controller for his eviction from the shop. On 17-1-1945, the Controller allowed the application and ordered defendant 1 to vacate the shop. Defendant 1 thereafter went in appeal. The appellate Court also confirmed the order of eviction giving, however, three months' further time to the defendant to vacate the shop.
On 11-4-1945, the present defendant 1 instituted Title Suit No. 52 of 1945 for a declaration that the order of the Controller was without jurisdiction as he was a trespasser and not a 'tenant' over whom the Controller could have any jurisdiction. On 19-9-1946, Title Suit No. 52 of 1945 was decreed. On 1-10-1946, the House Control Ordinance 2 of 1946 came into force. On 14-12-1946, the present plaintiff served another notice on the present defendant 1 to vacate the shop at once. On 31-12-1946, Babu Debi Prasad Kejriwal sent a reply to the above notice. On 29-1-1947, the decree passed in the Title Suit No. 52 of 1945 was affirmed on appeal.
On 15-3-1947, the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) came into force. On that very date the present suit was filed by the plaintiff for eviction of the defendants. The suit was Ultimately dismissed on 8-4-1948. The plaintiff thereafter filed the present First Appeal No. 201 of 1948. At the time of the hearing of this first appeal two contrary decisions of two Division Benches of this Court in -- 'Shiveshwar v. Parmeshwar', AIR 1949 Pat 355 (A) and --'Sm. Sant Kuer v. Ganesh Choudhary', AIR 1949 Pat 137 (B) were cited on behalf of the parties. In both those cases the suit for eject-ment had been instituted prior even to the promulgation of Bihar Buildings Control Ordinance 2 of 1946. In AIR 1949 Pat 355 (A) it was held that the provisions of the Bihar Buildings Control Ordinance 2 of 1946 and the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, were not retrospective, while in AIR 1949 Pat 137 (B) it was held that they had a retrospective effect, and Section 11 of the Act was a bar to the passing of any decree for eviction of a tenant.
Their Lordships Sinha and Mahabir Prasad JJ. who had originally heard the first appeal, referred the following two questions for decision of a larger Bench :
(1) Whether the definition of 'tenant' appearing in the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) or the Bihar Ordinance 2 of 1946 which it replaced is retrospective in its operation, and protects the defendant in the circumstances of this case, and (2) Whether the annual extension of the Act aforesaid by the Provincial Government is 'ultra vires' of the legislature.
These two questions were heard by a Full. Bench whose decision is reported in -- 'Kishori Lal v. Debi Prasad', AIR 1950 Pat 50 (FB) (C). The learned Judges of the Full Bench came to the conclusion that the definition of "tenant" incorporated in the Bihar Ordinance 2 of 1946 and the Bihar Act 3 of 1947 did not confer any right retrospectively but civil Court had no jurisdiction to pass a decree for eviction after coming in force of the Bihar Act 3 of 1947 as Section 11 of the Act was a bar to it. Two of the learned Judges of the Full Bench answered the second question in the negative but the third learned Judge answered it in the affirmative.
The present plaintiff thereafter filed an appeal against the decision of the Full Bench, being Supreme Court Appeal No. 17 of 1950. At the time of the hearing of the Supreme Court appeal, however, learned Counsel for the appellant conceded before their Lordships of the Supreme Court that the constitutional point which the appellant wanted to agitate in that appeal had been set at rest by subsequent decisions of the Supreme Court, and it was no use pressing that point any more. Their Lordships of the Supreme Court declined to hear other matters which were really pending in the first appeal before this Court. The Supreme Court appeal, therefore, was dismissed with costs on 11-11-52. After the dismissal of the Supreme Court appeal, the first appeal has now come up for hearing before us.
3. Mr. B. C. De, learned Counsel for the appellant, urged before us that the following definition of 'tenant' given in Section 2(h) of the Bihar Act 3 of 1947 cannot confer any benefit on the defendants :
" 'tenant' means any person by whom or on whose account, rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour."
Mr. De further contended that as the present defendant 1 had, before the filing of the present suit, asserted that he was a mere tres-passer, he cannot be permitted to claim in this suit the status of a tenant within, the meaning of Section 2(h) of the Bihar Act 3 of 1947. Accord-ing to him, this definition will confer right only on those who cease to be tenants after this Act came into force but still continue in possession of the property leased. He urged that as neither of the Bihar Ordinance 2 of 1946 nor the Bihar Act 3 of 1947 was in force when the cause of action against the defendants had arisen, they cannot take shelter under the provisions of the Bihar Act 3 of 1947.
In support of his contention Mr. De relied on the following passage in the judgment of Mano-har Lall J. in AIR 1949 Pat 355 (A):
"Mr. L. K. Jha also argued that the definition of the word 'tenant', as given in Section 2(h) of the Ordinance of 1946, cannot avail the appellants because ever since the 1st of May, 1941, the defendants were not tenants but trespassers in possession of the portion of the house belonging to the plaintiff. This argument is well-founded because I do not find any expression in the Ordinance which would force me to apply the artificial definition of the word 'tenant' 'to the state of affairs which did not exist on the date when, the cause of action arose' and when the Suit was filed or when it was decided or when the appeal was decided by the lower appellate Court."
In my opinion, however, the expression "on the date when the cause of action arose" had been used loosely at that place. In that case AIR 1949 Pat 355 (A) the notice had been given by the landlord to the tenant on 28-3-1941, to vacate the premises by 20-4-1941. The suit for eviction was instituted on 3-5-1941. It was decreed in 1943 and the appeal by the defendant wag dismissed on 28-1-1946. Thus we find that both the Bihar Ordinance 2 of 1946 and the Bihar Act 3 of 1947 came 'in force after the judgment of the Court below. It is well known that the provisions of an Act are to be applicable from the date it comes in force and not retrospectively unless it is so specifically provided by that Act. It was, therefore, held in AIR 1949 Pat 355 (A) that the defendant of that suit was not a tenant within the meaning of Ordinance 2 of 1946 or Bihar Act 3 of 1947 on 3-5-1941, the date of the institution of that suit. Thus the consideration of the status of the defendant of that suit on the date when the cause of action had arisen was redundant. But even that expression cannot be of any assistance to the appellant because according to his case the second notice to quit was given by him on 14-12-1946, when the Bihar Buildings Control Ordinance 2 of 1946 containing similar definition of "tenant" was in force since 1-10-1946.
The present case, however, was instituted on 15-3-1947, the date on which the Bihar Act 3 of 1947 came in force. The rights of the parties will, therefore, be governed by the provisions of this Act. In fact it is not necessary for the respondents to urge that the provisions of Bihar Act 3 of 1947 were retrospective, I agree with Mr. G. P. Das, learned Counsel for the respondents, that the defendant had acquired the status of a statutory tenant within the meaning of Section 2(h) of the Bihar Act 3 of 1947 on the date the present suit was filed, and that he was entitled to the benefit of all the provisions of this Act. In my opinion, the Court below was justified in dismissing the suit.
4. I am, however, of the view that the present defendants should not be given costs of the present suit. In the previous litigation defendant 1 took up a stand that he was a trespasser and not a tenant; and in the present suit the defendants assert that they are tenants and not trespassers. They have so far succeeded in keeping possession of the shop all these years without payment of rent though the period of the lease had expired in 1943. In my opinion, the defendants are not entitled to the costs of the Court below as well as of this Court.
5. The result is that the judgment and decree of the trial Court are modified only to this extent that each party will bear its own costs of that Court. In other respects the judgment and decree of the trial Court are confirmed. Though the appellant has failed almost on all points, the circumstances of this case do not justify my awarding costs of this appeal to the respondents. The appeal is disposed of accordingly. Parties are to bear their own costs of this Court also.
Das J.
6. The crucial question in this appeal is if the respondents are tenants within the meaning of the interpretation clause of Section 2(h), Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as Bihar Act 3 of 1947). The definition is in these terms : " "Tenant' means any person by whom, or on whose account, rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour."
It may be stated here that the same definition of the expression "tenant" occurred in the Bihar Buildings (Lease, Rent and Eviction Control) Ordinance, 1946 (hereinafter referred to as Bihar Ordinance No. 2 of 1946) which was replaced by Bihar Act 3 of 1947.
7. The contention of the appellant is that the respondents are not tenants within the meaning of the aforesaid interpretation clause; they were trespassers and are liable to be ejected as such. The reasons in support of this contention are these.
It is pointed out that in the Full Bench decision relating to this very case and reported in -- 'AIR 1950 Pat 50 (FB) (C)', it was held that the definition of the expression "tenant" in Section 2(h) of Bihar Act 3 of 1947 was not retrospective; therefore, it is argued that a person who was a trespasser on the date the Act came into force namely, 15-3-1947, cannot be converted into a tenant by reason of the said definition. Learned Counsel for the appellant relied on certain observations which were quoted with approval by Ramaswami J. when as a member of the Full Bench he dealt with the question if the definition in Section 2(h) of Bihar Act 3 of 1947 was retrospective in its opera-
tion particularly the observations made by Lord Watson in -- "Young v. Adams', (1898) AC 469 (D).
It was pointed out to us that the respondents had ceased to be tenants when on 14-12-1946, the plaintiff-appellant served a notice on the respondents to vacate the shop at once, and on 15-3-1947, the very day on which Bihar Act 3 of 1947 came into force and the present suit was brought, the respondents were DO better than trespassers in the eye of taw. It was argued that the definition in Section 2(h) of Bihar Act 3 of 1947 applies only to a person whose tenancy terminates after the Act comes into force and the definition affords no protection to a person whose tenancy had terminated before Bihar Act 3 of 1947 came into force or even before Bihar Ordinance 2 of 1946 came into effect. It is argued that that part of the definition which states "and includes a person continuing in possession after the termination of the tenancy in his favour" refers only to a person whose tenancy terminates after the Act has come into force.
The argument is that, in view of the decision of the Full Bench referred to above, if must be held now that the respondents were not tenants within the meaning of the definition in Section 2(h) and the decision of the learned Additional District Judge to the contrary is wrong.
8. I am unable to accept the arguments as presented on behalf of the appellant. In order to understand the decision of the Full Bench it is necessary to refer to some of the circumstances which led to that decision. This appeal came first before a Bench of two Judges who referred three questions to a Full Bench. One of the questions was whether the annual extension of Bihar Act 3 of 1947 was 'ultra vires' of the Legislature. That question was finally determined by the Full Bench and has no bearing on the appeal at the present stage. The second question referred to the Full Bench was whether the definition of the expression "tenant" in Bihar Act 3 of 1947 or Bihar Ordinance 2 of 1946 was retrospective in its operation and protected the defendants (respondents before us) of this case.
This second question was referred to a Full Bench by reason of a difference of opinion disclosed by two Division Bench decisions of this Court, namely, -- 'AIR 1949 Pat 355 (A)' and AIR 1949 Pat 137 (B)'. The Full Bench pointed out that the question consisted of two parts, namely, (a) if the definition of the expression "tenant" was retrospective in its operation and (b) whether the respondents of this case came within that definition. The Full Bench did not answer the second part of the question as it was not purely a question of law. With regard to the first part of the question, Agarwala C. J. (as he then was) merely stated :
"Neither the Ordinance nor the Act purports to amend the definition of tenant in the House Rent Control Order of 1942, either retrospectively or otherwise."
Meredith J. Said :
"I find nothing in the definition of 'tenants' or anywhere in the Act to make the definition retrospective. The wide definition, in my opinion, only comes into force with the Act. Section 11 of the Act is relied on. The first sub-section provides that 'notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of Section 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except in certain specified cases, I do not think this should be taken to enact anything more than it expressly says, and what it says in effect is that from 15-3-1947, the tenant cannot be evicted, except under the Act, even in execution of a decree.
That is to say, if a landlord has obtained a decree before that date, he cannot execute it after that date. If he has a suit pending on that date, then the Act will be retrospective in this sense only that the Court cannot give a decree for eviction except under the conditions specified in Sub-section (1). That follows from the use of the words the shall not be liable to be evicted', which may be taken to mean that no decree for eviction shall be passed. If any decree is passed, it is useless because it cannot be executed."
Ramaswami J. said that on a proper construction of the provision's of the Act, it was plain that the definition of the word "tenant" in Section 2 was not retrospective in its operation. The third question which was dealt with by the Full Bench was whether the civil Court had jurisdiction, in view of the provisions of Section 11 of Bihar Act 3 of 1947, to make a decree for possession. On this question Agarwala C. J. expressed himself as follows :
"As Section 11 is quite clearly a bar to the tenants being ejected otherwise than by an application to the Controller, and as a Court of law cannot be expected to make an order to which it is prohibited from giving effect, I would answer this question in the negative."
Meredith J. said "Section 11, Sub-section (2), in my opinion, bars any suit for the ejectment of a tenant after 15-3-1947, but it does not and cannot bar a suit based on trespass. If the defendants are able to show that they are not trespassers but tenants of some sort, then clearly the suit will fail. But that will be because the plaintiff has failed to establish his allegations, and not because the Court has no jurisdiction."
Ramaswami J. expressed himself as follows:
"It is manifest that the Bihar Buildings Control Act, 1947, creates a new jurisdiction and provides new remedies. Upon a proper construction of Section 11 of the Act in its context it is plain that the Civil Courts have no jurisdiction to grant a decree for possession in cases covered by the Act."
9. After the aforesaid decision of the Full Bench, the appeal came back to a Division Bench for determination of the mixed question of fact and law, namely, if the respondents are tenants within the meaning of the definition of the expression in Bihar Act 3 of 1947, and that is the question which we have to answer now.
10. From what I have stated above three points seem to me to be clearly established: first, the Full Bench did not determine the question if the respondents are tenants within the meaning of the definition; second, the Full Bench determined the question of the retrospective operation of the definition clause in the light of the difference of opinion disclosed by the two Bench decisions of this Court --'AIR 1949 Pat 355 (A)' and -- 'AIR 1949 Pat 137 (B)'; third, the Full Bench clearly held that if the respondents are tenants within the meaning of the definition of the expression "tenant" in Bihar Act 3 of 1497, Section 11 will stand as a bar to a decree being passed for their eviction.
11. It is worthy of note that in Section 11 of Bihar Act 3 of 1947 also, the expression "tenant" occurs; in other words, for the application of Section 11 it must be found that the respondents are tenants within the meaning of the definition in Bihar Act 3 of 1947. Speaking personally, it seems to me that if the wording of Section 11 is carefully examined, it becomes at once clear that even a person against whom a decree was passed for eviction on the footing that he was a trespasser, cannot be evicted if he has continued in possession after the termination of his tenancy; because the language of Section 11 is very general and wide and states 'inter alia' that a tenant in possession of any building shall not be liable to be evicted therefrom 'whether in execution of a decree or otherwise'. The words underlined (here in " "), namely, "whether in execution of a decree or otherwise", show clearly enough that even a person who was ordered to be evicted by a decree of the Civil Court cannot be evicted after the coming into force of Bihar Act 3 of 1947 except under the conditions specified in Section 11.
This aspect of the case was adverted to by Meredith J. in the Full Bench decision. In a later Bench Decision, -- 'Mohammad Jamil Ahamd v. Suraj Narain', AIR 1951 Patna 635 (E), Ramaswami J. applied Section 11 in a case where the landlord had obtained a decree for ejectment in 1944. The landlord executed the decree and the tenant who was in possession pleaded Section 11 of Bihar Act 3 of 1947 as a bar to execution. That plea was upheld. It follows, therefore, that the Full Bench decision with regard to the retrospective operation of the definition clause must be understood with reference to the difference of opinion which led to that question being referred to the Full Bench. The facts of the two Division Bench decisions which disclosed a difference of opinion have been carefully recited by my learned brother, and he has rightly pointed out that in both those cases the suit for ejectment had been instituted prior to the promulgation of Bihar Ordinance 2 of 1946 or the enactment of Bihar Act 3 of 1947.
The vital point of distinction is that the present suit out of which this appeal has arisen was brought on the date on which Bihar Act 3 of 1947 came into force. I do not think that the Full Bench laid down any such proposition as is propounded on behalf of the appellant, namely, that a person who was trespasser in the eye of law before 15-3-1947, cannot come within the statutory definition of a "tenant" as given in Bihar Act 3 of 1947, on the contrary, the application of Section 11 in -- 'AIR 1951 Pat 635 (E)' and the observations made by all the three Judges of the Full Bench with regard to Section 11 indicate that their decision as to the retrospective operation of the definition of. the expression "tenant" was given with reference to that set of facts which led to the difference of cninion in -- 'ATR 1949 Pat 355 (A)' and -- 'AIR 1949 Pat 137 (B)'.
12. For these reasons, I do not think that the decision of the Full Bench to the effect that the definition in Section 2(h) of Bihar Act 3 of 1947 is not retrospective in its operation is a settlor of the question as to whether the respondents are tenants within the meaning of the definition. The respondents come within the plain words of the definition. They are continuing in possession after the termination of the tenancy in their favour. The suit for their eviction was brought on the day on which Bihar Act 3 of 1947 came into force. It seems to me clear that they are statutory tenants within the meaning of the definition and are not, therefore, liable to be evicted except under conditions specified in Section 11 of Bihar Act 3 of 1947. For these reasons I agree with my learned brother that the appeal must fail.
I also agree with my learned brother that in view of the conduct of the respondents, they are not entitled to any costs, either of the Court below or of this Court.