Patna High Court
N.M. Verma vs Upendra Narain Singh on 19 May, 1977
Equivalent citations: AIR1978PAT101, 1978(26)BLJR60, AIR 1978 PATNA 101, ILR (1977) 56 PAT 452, 1978 PATLJR 32, 1978 BLJR 60, 1978 BLJ 24, 1977 (1) RENCR 696
Author: Lalit Moman Sharma
Bench: Lalit Mohan Sharma
JUDGMENT Lalit Moman Sharma, J.
1. This civil revision application bv the defendant in a pending suit for his eviction from a building in the town of Patna is directed against the order passed by the Court below under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act ('hereinafter referred to as 'the Act'). The petitioner was inducted as a tenant by the plaintiff-landlord originally on a monthly rental of Rs. 160/-. The rent was enhanced several times and since April 1970 it has been at the rate of Rs. 200/- per month. The plaintiff applied for a direction under Section 11-A of the Act to the defendant to deposit month to month rent as also the arrears of rent since July, 1972. Admittedly, the rent for the period April, 1970 to June, 1972 was paid at the rate of Rs. 200/- per month. The suit was filed on 2-12-1972. In view of the Full Bench decision in Ramnandan Sharma v. Maya Devi, 1974 BBCJ 818 : (AIR 1975 Pat 283) (FB), the Court could not and did not pass any order in regard to the period prior to the institution of the suit. By the impugned order, the Court below directed the defendant to deposit the arrears of rent since the filing of the suit as also the future rent at the rate of Rs. 200/- per month as the rent was admittedly last paid at the rate.
2. The petitioner contended that since the original rent was at the rate of Rs. 160/- per month, the subsequent enhancement by private agreement between the parties, without recourse to the provisions of the Act, were illegal and the plaintiff was not entitled to the additional amounts over and above Rs. 160/- per month realised by him. The petitioner claimed a set off on this account. He further said that the future rent also will be deposited by him at the rate of Rs. 160/- per month only.
3. This case was heard by Mr. Justice H.L. Agrawal singly who was of the view that the decision of the Division Bench of this Court in Manoranjan Nath Fatra v. Kashi Prasad Sah, 1974 BLJR 140 : (AIR 1973 Pat 421), relied upon by the petitioner, was not consistent with the earlier Division Bench decision in S.M. Khalil v. Akihauri Sitaram (AIR 1958 Pat 103) and the Full Bench decision in Mahabir Ram v. Shiva Shankar Prasad (AIR 1968 Pat 415) (FB). He suggested that the decision in Manoranjan Nath Patra v. Kashi Prasad Sah (Supra) should be reconsidered by a larger Bench and directed that the case be placed before the Hon'ble Chief Justice for the purpose. In these circumstances, this civil revision application has been ordered to be heard by the Full Bench.
4. Although certain other points are also mentioned in the civil revision application, at the time of hearing, the only question which was pressed was that the Court below was not entitled to direct the petitioner to deposit the rent at the rate of Rs. 200/- per month. In view of Section 4 of the Act, the original rate of Rupees 160/- per month continued to be the rent lawfully payable and the subsequent enhancements were illegal. The defendant was entitled to set off the additional amount paid. He would be entitled to deposit the future rent also, after accounting, at the rate of Rs. 160/- per month. On behalf of the plaintiff-landlord, it has been contended that the impugned order has been correctly passed on the basis of the rate at which the rent was admittedly last paid.
5. The question is dependant on the interpretation of Section 11-A of the Act which is quoted below:
"11-A. Deposit of rent by tenants in suits for ejectment--If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at the rate at which it was last paid and also the arrears of rent, if any, and the Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to eiectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant." The Rent Control Act was passed in 1947 for regulating the letting of buildings and the rent of such buildings, and to prevent unreasonable eviction of tenants. Due to scarcity of houses, people residing in tenanted houses were facing serious difficulty on account of the attitude of the landlords in general to evict the continuing tenants, in an attempt to realise higher rents by inducting new one's. The Act was passed mainly for affording a protection to the tenants, but, at the same time, the legislature took into account the desirability of regular payments of rent. The unfettered right of the landlord to evict his tenant on service of a notice under Section 106 of the T. P. Act was drastically cut down. But, at the same time, a speedy remedy for eviction of a tenant on certain limited grounds was provided before a special authority designated as Controller. One of the grounds on which an order of eviction could be passed was non-payment of rent. Other provisions for determination of fair rent of buildings were also included. In 1955 large number of amendments were introduced in the Act and as a result, inter alia, the speedy remedy available to the landlord before the Controller was taken away. The landlord was left with the general remedy of filing a suit in the Civil Court. It is well known that the disposal of a suit in a Court of ordinary civil jurisdiction takes considerable time and even before 1955 the arrears of civil litigations had mounted up and had a tendency of growing further. An unscrupulous tenant could with impunity, continue to occupy a building without paying the rent for a considerably long time. In this background Section 11-A of the Act, quoted above was added to the Act by Section 12 of Bihar Act XVI of 1955. The object of this section is clearly to protect the right of the landlord in the matter of reception of rent during the pendency of a suit for eviction.
6. The section permits the landlord to pray for an order on the tenant to deposit rent "at a rate at which it was last paid". The Court, after hearing the parties, may make an appropriate order "at such rate as may be determined". The two clauses mentioned in the preceding sentence within commas are connected, and what the Court has to determine is as to the rate "at which it was last paid". To suggest that the Court may arrive at any other rate would lead to several difficulties. In the first instance, it will give an unguided and uncontrolled power to the Court to fix any rate of rent without recourse to any principle. Secondly, this interpretation will not be consistent with the language of the section and the form in which it has been enacted. To say that the landlord has been authorised to claim the rent at a particular rate and the Court has been given a discretion to pass its orders on the basis of a different rate, would be anomalous. I am therefore, of the view that the landlord can require deposit of rent at a rate at which it was last paid and on determination of the factual aspect, if any controversy is raised, the Court has to pass an order accordingly. The point, however, remains as to what is the meaning of the words "at a rate at which it was last paid".
7. It has been argued on behalf of the petitioner that an interpretation to the provisions of the Act beneficial to the tenant, as far as it may be possible, should be given. I do not think, this approach should be adopted while construing Section 11-A. This aspect, however, appears to be academic inasmuch as the language of the section appears to be clear and unambiguous and its natural meaning must be given. While construing a statute, the Court must endeavour to find the intention of the legislature and if the words of the statute are unambiguous, their literal and grammatical meaning should be given effect to. The words themselves in such a case best declare the intention of the legislature. The primary meaning of the words may, however, be rejected, where it will lead to some absurdity or some repugnancy or inconsistency with the other parts of the statute or it plainly defeats the object and purpose of the statute; but no such problem arises in the present case. The principle that the words of the statute must prima facie be given their ordinary meaning has been characterised as the golden rule in England (See Maxwel on the Interpretation of the Statutes Tenth Edition page 7).
8. The plain grammatical meaning of the term does not admit of any serious controversy. If in a given case, the rent has been actually paid by the tenant and received by the landlord at a particular rate, the same has to be accepted by the Court for the limited purposes of Section 11-A of the Act. It has to be kept in mind that such an order does not finally determine the right and liability of the parties. The equities between them have to be finally settled only by the ultimate judgment in the case. This is the reason that the landlord has not been given an unqualified right to withdraw the deposited rent during the pendency of the litigation nor can he realise the amount by execution. On an application for that purpose, the Court may permit him to withdraw the amount if deposited. In the present case, the rent was paid by the petitioner at the rate of Rs. 200/- per month for more than two years before the suit was filed. If he is directed to continue to do so, subject to the final settlement of his rights, it is difficult to conceive that it will lead to a situation not warranted by the Act. This interpretation does not lead to any absurdity or repugnancy or inconsistency with the other sections of the act and no reasons have been given on behalf of the petitioner to reject the straightforward and plain grammatical meaning of the words. A comparison with the language of Clause (d) of Section 11 (1) of the Act can be usefully made. One of the five grounds on which a tenant can be evicted is "where the amount of two months' rent is lawfully paid by the tenant and due from him is in arrears." In Section 11-A which was introduced by an amendment, the legislature decided not to use the word "rent lawfully payable"; instead the rate of rent was mentioned "at which it was last paid". The difference is too eloquent to be ignored.
9. It was contended that Section 4 of the Act which is in the following terms:--
"4. Enhancement of rent of buildings:
Notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in the rent which is payable for the time being, in respect of any building except in accordance with the provisions of this Act." does not permit the landlord to ask for, under Section 11-A of the Act, rent higher than at which it was originally payable. The argument is that the rent in the present case was being paid at the rate of Rs. 160/- per month till March, 1970 and the agreement raising the same was unlawful. The rent could be increased only in accordance with the provisions of the Act. Section 11-A must be read subject to the provisions of Section 4 and the petitioner cannot therefore be asked to make the deposit at the rate of Rs. 200/- per month. Mr. Braj Kishore Prasad appearing for the plaintiff-opposite party has given several reasons in support of his argument challenging the petitioner's above point. He contended that the petitioner, by actually paying the rent at the higher rate for a period of two years, must be held to have waived this objection. The plaintiff could have started a legal action for the petitioner's eviction earlier and it was the letter's conduct that persuaded the plaintiff to permit him to occupy the building. The petitioner should, therefore, be estopped from challenging the validity of the agreement. Mr. Prasad emphasised that a strict construction should be placed on a statute controlling contractual obligations. He placed reliance on certain decisions. It was also argued that the words "rent which is payable for the time being" indicated that tine rate could be different from time to time. In any event, any amount voluntarily paid in the past could not attract the provisions of Section 4 and no adjustment of the excess amount can be ordered. However, in view of the decision I am taking on this point, it does not appear necessary to discuss all the arguments of Mr. Prasad. It will be seen that the provisions of Section 4 override any agreement or law in general to the contrary but exception has been made in favour of the provisions of the Act. The inference is that Section 11-A is not subject to the provisions of Section 4 of the Act.
10. It was contended on behalf of the petitioner that a literal interpretation of the language of Section 11-A of the Act should be rejected, as it will lead to undesirable results in two cases, namely, (i) where after the commencement of a tenancy, no payment of rent has been ever made and (ii) in a case where fair rent has been fixed under the provisions of the Act at a rate different than that at which rent had been last paid. There does appear to be a lucuna in the section inasmuch as it does not make provisions for these cases, but it must be the concern of the legislature to make appropriate amendments and not for a Court of law to discharge the legislative functions in the garb of interpreting the section. At the same time, it must also be pointed out that the consequence of the literal interpretation does not affect any party very seriously. In a case where the tenant has never paid the rent at all, the landlord can realise the same by getting a decree in a properly constituted suit for the purpose. If the fair rent has been fixed at lower rate than that "at which it was last paid", the only consequence of not making the deposit under Section 11-A of the Act will be the striking off the defence. The amount directed to be deposited under Section 11-A cannot be realised by execution and, therefore, there is no inherent repugnancy between the interpretation I am putting on Section 11-A and any other provision of the Act including Section 4. What Section 11-A is trying to achieve is to maintain the status quo in regard to the rate under the pains of rejection of the written statement. No substantial rights are being dealt with. I, therefore, hold that the observation of the Full Bench in para. 25(b) of the judgment in Mahabir Ram v. S.S. Prasad (AIR 1968 Pat 415 (FB)) to the effect that the order passed under Section 11-A of the Act is subject to variation, so as to make it consistent with the fair rent fixed by the Controller, is not correctly made, and the decisions of this Court following the above observation including those in Manoranjan Nath Patra v. Kashi Prasad Sah (1974 BLJR 140) : (AIR 1973 Pat 421) and Sashadhar Das v. Harihar Prasad (1973 BBCJ 401) are also not correct. I agree with the view taken in S. M. Khalil v. Akhauri Sitaram (AIR 1958 Pat 103). As a result, I find that there is no error in the impugned order directing the petitioner to deposit the rent at the rate of Rs. 200/- per month.
11. The Civil Revision on application must, therefore, be dismissed, but I would not make any order as to costs.
K.B.N. Singh, C.J.
2. I agree with the view expressed by my learned brother. In the case of Mahabir Ram (AIR 1968 Pat 415) (FB) (Supra), the question involved was the correctness of the decision in the case of Chaturbhuj Mistry v. Jagan Ram (1967 BLJR 44). It was held in that case that if the defence in regard to ejectment was struck out in accordance with the provisions of Section 11-A of the Bihar Buildings (Lease Rent and Eviction) Control Act, that would also include the defendants' plea against the plaintiffs' title and asserting their own title. This decision in Chaturbhuj Mistry's case was overruled by the Full Bench in Mahabir Ram's case. The question posed before us in the present case was not a matter at issue in Mahabir Ram's case. Neither Section 4 of the Act nor the decision in the case of S.M. Khalil v. A. Sitaram (AIR 1958 Pat 103), which has been approved by my learned brother, was noticed in the case of Mahabir Ram (Supra). It was decided in the case of S.M. Khalil that the only enquiry which a Court should make while disposing of an application under Section 11-A of the Act is as to what was the rent which was last paid by the tenant and the quantum of arrears of rent according to the rate of rent last paid by the tenant. Therefore, the principle enunciated by Tarkeshwar Nath, J., who delivered the judgment of the Full Bench in Mahabir Ram's case, to the effect that an order passed under Section 11-A of the Act, determining as to what was the rate of rent last paid and as to what amount of rent was in arrear, is subject to variation inasmuch as the house Controller may determine that the fair rent of the house is somewhat different, in my opinion, was not, strictly speaking, germane to the point at issue in that case.
Ambhu Prasad Singh, J.
13. I regret my inability to agree with my learned brother L.M. Sharma, J. that the civil revision application be dismissed, that the decisions in Sashadhar Das v. Harihar Prasad (1973 BBCJ 401) and in Manoranjan Nath Patra v. Kashi Prasad Sah 1974 BLJR 140 : (AIR 1973 Pat 421") are not correct and that the observation in the case of Mahabir Ram v. Shiva Shankar Prasad (AIR 1968 Pat 415) (FB) to the effect that the order passed under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as 'the Act') is subject to variation so as to make it consistent with the fair rent fixed by the Controller was not correctly made. I may add here that the question arising for decision in this case has lost much of its importance and may be of academic value only, for the Act has ceased to be in force from 1st of April, 1976 vide Section 1 (3) unless it is re-enacted.
14. The facts of the case have been stated in the judgment of my learned brother L.M. Sharma, J. and it is not necessary to repeat them. The question arising for decision in the case undoubtedly is dependent on the interpretation of Section 11-A of the Act, but I find it difficult to accede to the view that the expression "at such rate as may be determined" must mean determination of "rent at a rate at which it was last paid". The language of the section is not so plain and unambiguous that it admits of only one interpretation as given to it by Sharma J. The section, according to me, can be very well interpreted to mean, rather should be interpreted to mean, that in his application for deposit of rent month by month in future as well as of the arrears the landlord can claim rent only at a rate at which it was last paid, but the Court may order for the deposit of rent month by month for future and arrears of rent at such rate as may be determined by it. Determination by the Court here need not necessarily mean that the Court should take upon itself the obligation of fixing a lair rent (under the Act that can be fixed by the controller only), but where there is a dispute between the landlord and the tenant as to the rate at which rent was last paid or as to the legality of rate of rent as claimed by the landlord though rent was last paid at such rate on the ground that fair rent for the building has been determined by the Controller or that the landlord has illegally increased the rent, the Court should go into that question and determine the rate of rent at which it is to be deposited month by month in future and at which the arrears of rent are also to be calculated. It is significant to note that a literal interpretation of the section will not entitle the landlord to claim arrears of rent at a rate at which rent was last paid nor even assuming that the interpretation put by my learned brother Stharma, J. on the expression "at such rate as may be determined" that it must mean determination of rate at which rent was last paid is correct, will entitle the Court to order for deposit of arrears of rent at such rate. I say so, for neither in the first part of the clause nor in the second part thereof the expression "arrears of rent" can be said to have been qualified by "rent at a rate at which it was last paid" and "at such rate as may be determined" respectively. The landlord cannot claim arrears of rent as he likes. He can claim only that much arrears of rent to which he may be legally entitled and the Court can order for deposit of only such arrears of rent. However, if there is a dispute between the landlord and the tenant as to the amount of arrears of rent, that has to be determined by the Court though the section on the plain reading of it does not authorise the Court to do so. Now can it be said that the Court can order for deposit of rent at two rates, one at which it is to be deposited month by month for future and another at which arrears of rent are to be deposited ? I am of the view that though the language of the section is ambiguous the landlord cannot claim arrears of rent at a rate higher than at which rent was last paid and the Court cannot order for deposit of arrears of rent at a rate at which it is not lawfully payable and the rate for both must be the same.
15. I have examined the question in a little detail to illustrate that we are not dealing here with some provision of law which is unambiguous. It is well established that while interpreting provisions of law which do admit of more than one meaning it is bounden duty of the Court to adopt the meaning which will avoid injustice and not to adopt the meaning which will do injustice (Hill v. East and West India Dock Co., (1884) 9 AC 448) or, in other words, if the language is capable of more than one interpretation, one ought to discard the more natural meaning if it leads to an unreasonable result and adopt the interpretation which leads to a reasonable practical result (Gill v. Donald Humber Stone and Co. Ltd., (1963) 1 WLR 929). It is also well established rule of interpretation that every clause of a statute should be construed with reference to the context and other clauses in the Act, so as, as far as possible, to make a consistent enactment of the whole statute (Canada Sugar Refining Co. v. R., 1898 AC 735). Lord Justice Denning in Magor R. D. C. v. Newport Corporation ((1950) 2 All ER 1226) in his dissenting judgment has said:--
"We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis."
This view of Lord Justice Denning though did not prevail in that case and was not accepted even in some later decisions of English Court, the Law Commission of England in their paper on the interpretation of Statute Law (Law Commission No. 21 of 1969 at p. 32) accepted it as correct.
16. Now, let us examine the question as to what interpretation should be given to Section 11-A of the Act keeping in view the rules of interpretation as enunciated above and with reference to other provisions of the Act. Section 4 of the Act makes it unlawful for any landlord notwithstanding anything contained in any agreement or law to the contrary, to increase, or claim any increase in the rent which is payable for the time being, in respect of any building except in accordance with the provisions of the Act. Emphasis was put by learned counsel appearing for the opposite party on the words "rent which is payable for the time being" and it was contended that this shows that the rent can be increased by consent of the parties, in other words, by contract. Obviously there is no substance in this contention, for the section itself expressly says that the landlord cannot increase the rent in spite of "any agreement to the contrary". The expression "rent which is payable for the time being", therefore, only means rent as originally agreed upon between the parties or increased or decreased in accordance with the provisions of the Act. Section 5 provides for determination of fair rent by the Controller either at the instance of the landlord or the tenant in respect of a building in occupation of a tenant. Section 6 provides for determination of fair rent of the building not in occupation of tenants on the application of the landlord or a prospective tenant. Section 7 lays down that fair rent once fixed can be redetermined only in certain cases as mentioned in that section. Section 8 (1) enumerates matters which are to be considered in determining fair rent. According to Sub-section (2) of Section 8, when the fair rent of the building has been determined or re-determined any sum in excess or short of such fair rent paid, whether before or after the date appointed by the Controller under Sub-section (3), in respect of occupation for any period after such date shall, in case of excess, be refunded to the person by whom it was paid or that at the option of such person be otherwise adjusted and, in case of shortage, be realised by the landlord as arrears of rent from the tenant. Sub-section (3) of Section 8 lays down that in every case in which the controller determines the fair rent of a building, he shall appoint a date with effect from which the fair rent so determined or re-determined shall take effect. Section 8-A provides that in certain cases the landlord or the tenant will be entitled to claim increase or decrease in the fair rent of a building determined or re-determined. Section 11 (1) provides for grounds on which a tenant may be evicted. The tenant cannot be evicted on grounds other than those mentioned in Section 11 (1). Clause (d) of Section 11 (1) which states one of the grounds for eviction reads as follows:--
"Where the amount of two months' rent lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or, in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with Section 13."
It is manifest that a tenant can be evicted under this clause only if he is in arrears for two months' rent lawfully payable. He cannot be evicted if he is in arrears for two months' rent at the rate of rent last paid though it is not lawfully payable at that rate. If the landlord while instituting a suit for eviction also claims arrears of rent he can claim only such arrears of rent which is lawfully payable by the tenant. In such a suit if the landlord makes an application under Section 11-A of the Act a question arises can he claim arrears of rent at the rate of rent last paid though he has claimed arrears of rent at a lower rate in the suit, for that was the rate of rent lawfully payable. The answer, in my opinion, obviously will be in the negative. As observed earlier, the landlord also cannot get an order from the Court for deposit of rent month by month in future at another rate and of arrears of rent at another rate. Section 11-A, therefore if it has to be given a sensible meaning with reference to and consistent with other provisions of the act, has to be interpreted that the tenant can be asked to deposit rent under Section 11-A only at a rate which is lawfully payable. It will be an over simplification of the matter to say that since the expression "lawfully payable" has not been used in Section 11-A, the tenant can be asked to deposit rent month by month for the future as well as arrears at the rate of rent last paid even if that was not lawfully payable.
17. The general rule is that in discussing the meaning of provision of a statute which is unambiguous the debates which took place in the legislature should not be referred to, but in the recent past there has been a departure from the said rule. In Beswick v. Beswick ((1968) AC 58) Lord Rid spoke in approval of the said rule, but in the very same year in Warner v. Metropoliton Police Commr., ((1968) 2 WLR 1303) the same learned Lord Justice thought that there was "room for exception where examining the proceedings in the Parliament would almost certainly settle the matter immediately one way or another". In Sashadhar Das's case (1973 BBCJ 401), while interpreting Section 11-A, I quote in extenso portion of debates in the Bihar Legislative Assembly when Section 11-A was added to the Act. The purpose behind the introduction of Section 11-A, as appears from the debate, was that as a suit for eviction before a Civil Court was likely to take time provision was made for payment by the tenant to the landlord all the arrears of rent and rent becoming due during that period. The intention never was that the tenant should be made to pay to the landlord rent at a rate which could not be lawfully claimed by the landlord. If an unscrupulous landlord by coercion or other unlawful means makes the tenant pay rent at a rate higher than what is lawfully payable and thereafter does not accept rent from him find institutes a suit, under Section 11-A of the Act, as interpreted by my learned brother Sharma, J., he will 'be entitled to get deposited rent month by month for the future as well as arrears of rent at that rate. It may be useful to refer here to Section 20 (1) of the Act which lays down that if any person contravenes any of the provisions of this Act, he shall except as otherwise provided in Section 14, be punishable with imprisonment for a term which may extend to two years or with fine or with both. Section 14 provides that the tenant is entitled to obtain a receipt from the landlord of the rent paid by him and in case the landlord without reasonable cause fails to deliver the tenant a receipt, he shall be liable to pay fine not exceeding double the amount of rent so paid. In cases of contravention of provisions of the Act other than Section 14, the landlord becomes punishable with imprisonment and fine as provided in Section 20 (1). He can be so punishable even for contravention of Section 4 of the Act by increasing or claiming an increase in the rent which is payable for the time being. "Payable for the time being" in Section 4 must mean "lawfully payable" in view of the recent decision of the Supreme Court in New Delhi Municipal Committee v. Kalu Ram (AIR 1976 SC 1637) which held that the expression payable in Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 a Delhi Act must be interpreted to mean "legally recoverable" and to exclude any amount of rent barred by law of limitation (I shall refer to this decision again at a later stage). It is not necessary to give further reason for the view taken in the preceding sentence. In Sashadhar Das's case I also emphasised that while Section 4 of the Act starts with "notwithstanding anything contained in any agreement or law to the contrary" and Section 11 with "notwithstanding anything contained in any contract or law to the contrary", Section 11-A does not contain any such provision and, therefore, Section 11-A has to be read subject to Sections 4 and 11 and, therefore, the expression "last paid" in Section 11-A should be interpreted to mean "lawfully last paid". If any other interpretation is given to the words that will create many anomalies and will lead to unreasonable results. Some of these anomalies have already been pointed out earlier.
18. A reference has already been made to Section 20 of the Act and it has been observed in the preceding paragraph that if a landlord increases the rent or claims any increase therein he will be contravening Section 4 and thus will make himself liable to be punished under Section 20 of the Act. It can very well be said that in claiming under Section 11-A of the Act, rent which is not lawfully payable though it is at the rate which the rent was last paid, the landlord will be contravening Section 4 and will make himself liable to be punished under Section 20 and the Court in allowing such a claim of the landlord will be assisting him in committing an offence. In my opinion, such an interpretation should not be given to Section 11-A as to aid the landlord in committing an offence. To avoid such an anomalous position it becomes duty of the Court to interpret the expression "last paid" in Section 11-A as "lawfully last paid". Such an interpretation also removes the anomalies pointed out in para. 10 of the judgment of my learned brother L. M. Sharma, J. where he has observed: "There does appear to be a lacuna in the section inasmuch as it does not make provisions for these cases, but it must be the concern of the legislature to make appropriate amendments and not for a Court of law to discharge the legislative functions in the garb of interpreting the section". He has observed in that paragraph that the consequence of the literal interpretation as put by him on Section 11-A does not affect any party very seriously, for in a case where fair rent has been fixed at a lower rate than that at which it was last paid the only consequence of not making the deposit under Section 11-A of the Act will be the striking off the defence and the amount directed to be deposited under Section 11-A cannot be realised by execution. With greatest respect I venture to point out that he has omitted to take into account that striking off the defence of the tenant will make him liable to eviction from the house and in many cases he may not get a shelter for some time or at least may have to pay much higher rent for a new house which he may be able to find out for himself.
19. The case of New Delhi Municipal Committee v. Kalu Ram (AIR 1976 SC 1637), a reference to which has already been made earlier, in my opinion, is an authority to support the view taken by me that the expression "lest paid" should be construed to mean "lawfully last paid". If the word "payable" in Section 7 of the Public Premises (Eviction of Un-authorised Occupants) Act should be interpreted by the Supreme Court to mean "legally recoverable" there can be no objection in interpreting the expression "last paid" in Section 11-A to mean "lawfully last paid". The various aspects of the matter which have been considered by me in the cases of Sashadhar Das and Manoranjan Nath Patra and in the preceding paragraphs of this judgment were not raised before the Bench which heard and decided the case of S.M. Khalil v. Akhauri Sitaram (AIR 1958 Pat 103). Had all these aspects of the matter been raised before that Bench, perhaps, the Bench may have come to the same decision to which I have come. As it appears from the judgment of that case much emphasis was laid on behalf of the tenant that in determining the rate of rent under Section 11-A the Court was empowered to make an enquiry into the question of fair rent. It was rightly held, if I may say so with respect, in that case that under Section 11-A of the Act Court was not empowered to make an enquiry into the question of fair rent. Fair rent, according to the provisions of the Act as they stand now, can be determined or redetermined by the Controller and not by the Court. But if the fair rent has been determined or re-determined the Court must take that into consideration while determining the rate of rent under Section 11-A of the Act as held in Mahabir Ram's case. However, the observation "The only enquiry which the Court should make is as to what was the rent which was last paid by the tenant-defendant and what was the quantum of arrears of rent according to the rate of rent which was actually paid last" in S.M. Khalil's case in my opinion, was not correctly made. To that extent the case was wrongly decided.
20. For the reasons aforesaid the Court below could not have directed the tenant-petitioner to deposit rent month by month in future or arrears of rent at a rate higher than Rs. 160/- per month. The tenant-petitioner was also entitled to claim a set off of the excess rent paid by him. Accordingly I would allow the civil revision application with a direction to the Court below to refix the amount which is to be deposited 'by the petitioner month by month in future and also the arrears of rent if any in the light of observations made above. It may be open to the petitioner to make submissions before the Court below as to the effect of the fact that the Act has ceased to be in force from 1st of April, 1976. There will 'be no order as to costs.
Sarwar Ali, J.
21. All canons of construction have one aim in view to discern the legislative intent. But to speak of the legislative intent is not quite accurate. What we do attempt to fathom is the intention as disclosed by the words used.
22. We, therefore, took the words used by the legislature they being the medium of communication between the draftsman and the Court of construction.
23. To get at the legislative intent certain rules of interpretation have been involved. Such rules being no more than aids to construction, presumptions or pointers our law has not as yet authoritatively established any complete hirerarchy among the canons of interpretation. Yet, judicial decisions establish that where the language employed is clear, unambiguous and capable of only one meaning full effect must be given to the language employed. Consideration of harshness, inconvenience, injustice and the like play no part in such a situation. But where the words are capable of more than one meaning where it is possible to interpret them both in a wide as also a narrow sense (and in certain other situations) other rules of interpretation have a definite role to play. Then the primary or literal rule yields to other canons of interpretation. We then look to the context, to arrive at the true meaning. As Viscount Simonds said:--
"for words, and particularly general words, cannot be read in isolation, their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute but its preamble, the existing state of the law, to other statutes in pari materia and the mischief which I can by those and other legitimate means discern the statute was intended to remedy". Attorney General v. H. R.H. Prince Ernest Augustus of Hanover, 1957 AC 436 at 461.
24. L.M. Sharma, J. is of the view that the language of Section 11-A is clear and the meaning is plain. The words used are capable of one and only meaning and thus full effect must be given to the words used. Thus, if I may say, with respect, it is quite an understandable approach.
25. S.P. Singh, J. on the other hand is of the view that words are capable of more than one meaning. To interpret the words literally would lead to anomaly and contradiction. It is one of those cases where restricted meaning should be ascribed to the words used by the legislature. This again, if I may say so with respect, is equally understandable approach.
26. After some vacillation, I have finally come to the view that approach approved by S.P. Singh, J. should he adopted. The route through which I have come to this conclusion, being somewhat different I must now indicate my reasons.
27. The crucial words in Section 11-A are "rent at a rate at which it was last paid". The expression "last paid" deals with a factual situation and is not dependent on legal liability. Even if it be said that there is no ambiguity in the expression "last paid" and the same is not capable of several meanings dealing as it does with a state of fact, I am of the view that the word rent is at least capable of more than one meaning.
28. Rent has not been defined in the Act. Rent is, of course capable of a wide meaning as "Rent (Redditus) is the compensation or retribution for the lands (or property) demised" (Woodfall on Landlord and Tenant Vol. I, page 297 1968 Edition). 'Rent' has, however, been used by the legislature in a narrow sense as well. For instance in Act 8 of 1885 rent has been defined as whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of use or occupation of land held by the tenant". It cannot be thus said that rent has a fixed and unchangeable meaning, or that whenever the legislature uses the word rent it is only in the wide concept the word is capable of.
29. If I am right in thinking that the word rent, undefined as it is in the Act, is capable of wide as also a restricted import, it is legitimate to examine whether the legislature was using the word rent in its wide meaning or in a limited sense.
30. In my view the word "rent" has to be interpreted as legal rent or lawful rent. My reasons are these. It is one of the well recognised rule of construction that the meaning of the words used in a statute has to be ascertained by referring to the whole Act. One section may affect the construction of another or to quote the language of Abbot, C.J. in R. v. Hall ((1822) 1 B & C 123 at p. 136), "The meaning of ordinary words used in the Acts of Parliament is to be found, not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used and the object which is intended to be attained".
31. Section 4 of the Act reads "notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in the rent which is payable for the time being, in respect of any building except in accordance with the provisions of this Act.
The legislature, therefore, does not recognise as legal and valid increase in rent during the continuation of the same tenancy. The word rent in Section 11-A must be interpreted in this context. The Court, said Upjohan L. J. "should be especially astute to prevent the commission of an unlawful act" (Boulting v. Association of Cinematograph, Television and Allied Technicians, (1964) 1 WLR 807 at pp. 843, 44). To interpret "rent" in its widest sense would mean, in view of Section 4 of the Act, recognition of an unlawful act. Not only that the Court's seal and sanction would be put on even an unlawful enhancement of rent. Looking from another angle, "a man may not take advantage of his own wrong" (per Fletcher Moulton's in Kish v. Tayalor, (1911) 1 KB 625 at p. 634). To interpret the word rent from the point of view of fact situation would, in some cases, mean allowing a landlord to take advantage of his own wrong. These reasons, in my view, are sufficient to induce the Court to interpret the crucial word "in Bonam Partem" in its lawful and rightful sense.
I would accordingly Interpret "rent" to mean legal or lawful rent.
32. There is yet another reason leading to the same conclusion. In Section 11-A the word rent has again been used, where the Court has to find out what is the arrears of rent' and to direct de posit thereof. The expression 'arrears of rent', in my opinion must mean such rent as is lawfully payable. It would in my view, be not right to hold that although the arrears were not lawfully payable the same could be directed to be deposited.
33. If the expression 'arrears of rent' means, as it does in my opinion, lawfully payable rent, the same meaning must be ascribed to the words used in earlier part of the section. The word 'rent' there means legal rent or lawful rent. In so interpreting, I hope, I have not, to borrow the language of Denning, M. R. changed the texture of which the Act is woven but have only tried to iron out the crease.
34. I must now refer again to Section 4 of the Act. It prohibits enhancement of rent during the continuance of the same tenancy. But where a new contract is, with the consent of all the parties concerned, substituted for one that had already been made, the section, in my opinion, is not applicable. It is well settled that the parties to an original contract can by mutual agreement enter into a new contract in substitution of the old one (See Union of India v. Kishorilal Gupta & Bros., 1960-1 SCR 493 : (AIR 1959 SC 1362)). Thus where the original contract is put an end to, and a new valid contract is substituted for the old contract, the section has no application. Whether there is in this sense novation of a contract depends on the facts of each case.
35. In the instant case the Court below has not examined the question whether the alleged enhancement was in contravention of Section 4 of the Act, or in other words whether it was during the continuance of the original tenancy that the enhancement of rent had been made, or whether there was a new contract between the parties in substitution of the old contract.
36. I would, for the reasons discussed, allow this civil revision application and direct determination of the question whether the enhancement of rent was in contravention of Section 4 of the Act. If the Court conies to the conclusion that the enhancement was in contravention of Section 4 aforesaid it should pass orders as indicated by S.P. Singh, J. If however, it comes to the conclusion that there was novation of contract in the sense explained, the Court should pass suitable orders directing deposit of rent month by month as also arrears of rent in the light of its finding. On remand it would also be open to the Court to consider the effect of the position that the Act has ceased to be in force from 1st April, 1976. I too would not make any order as to costs.
B.S. Sinha, J.
37. I agree with my learned brother, L. M, Sharma, J, (Majority view).
ORDER
38. In consonance with the views of the majority, the Civil Revision Application is dismissed, but without costs.