Kerala High Court
Raman Sahadevan vs R. Kesavan Nair on 24 October, 1972
Equivalent citations: AIR 1973 KERALA 136, 1973 RENCJ 180, 1973 KER LT 37, 1973 RENCR 401, 1972 KER LJ 983
JUDGMENT Raghavan, C.J.
1. The respondent filed an application for evicting the petitioner from a building under Section 11(4) (iv) of the Kerala Buildings (Lease and Rent Control) Act. And the petitioner was directed to pay the arrears of rent and the rent accuring due pending the proceeding as contemplated by Section 12 (1) of the Act. The petitioner failed to deposit the arrears; and consequently, as contemplated by Sub-section (3) of Section 12, the Rent Control Court passed an order "directing the tenant to put the landlord in possession of the building". This order was sought to be executed by the respondent, when objection was taken by the respondent, when objection was taken by the petitioner that the order was not executable. The objection has been overruled by both the lower Courts, and hence the civil revision petition. A learned to be of impotance so as to be considered by a Division Bench and referred the matter to a Division Bench.
2. The first contention urged by the counsel of the petitioner is that, in Section 14 of the Act, an order passed under Section 12 is not mentioned as an order executable, the orders passed under Section 11 or Section 13 or Section 19 or Section 33 alone having been included there. (We have excluded the appellate and revisional orders.) On a proper construction of the provisions of Section 11 and Section 12 (3), it has to be said that an order passed under Section 12 (3) is really an order passed under Section 11. Therefore, the absence of mention of Section 13 in Section 14 is of no consequence--such mention is unnecessary. But the counsel has pointed out that in Section 14, when it was amended by Act 7 of 1966, Section 12 was also mentioned; and has argued that, when that was deleted under Act 8 of 1968, the intention of the Legislature must have been that such an order, an order under Section 12, should remain unexecutable, This could never have been the intention of the Legislature which made a provision authorising (rather compelling) the Rent Control Court to pass an order in eviction: the intention of the Legislature could never have been that such an order should not be executed, having provided for such an order: then, why was such an order provided for? The position appears to be that the Legislature, when it passed Act 8 of 1968, realised the mistake committed in Act 7 of 1966, which included Section 12 also in Section 14, that the inclusion of Section 12 in Section 14 was otiose, since an order passed under Section 12 was really an order passed under Section 11. (This will become clearer in another part of this judgment, where we discuss the purpose of a repealing Act--the purpose is to remove inconsistencies also.) We may also reiterate that Section 11 is mentioned in Section 14, so that an order passed under Section 11 is executable.
3. The next contention is that the effect of Act 8 of 1968 was to make such an order unexecutable. We may, at this stage, point out a few facts leading to the passing of Act 8 of 1968. Originally, President's Act 2 of 1965 was passed; and subsequently, President's Act 7 of 1966 was passed amending the provisions of the earlier Act. Still later came Act 8 of 1988 passed by the Legislature; and by this Act, some of the provisions of Act 2 of 1965 as amended by Act 7 of 1966 were replied. The contention now urged is that, by such repeal, the executability of an order like the one before us was also taken away.
4. In this connection, we have to consider the effect of a repealing Act. In Jethanand Betab v. The State of Delhi, AIR 1960 SC 89, Subba Rao J. approvingly quoted the 'neat' expression of Chakravartti C.J. of the Calcutta High Court in Khuda Bux v. Manager, Caledonian Press, AIR 1954 Cal 484. The passage from the judgment of Chakravartti C. J. runs:
"Such Acts have no legislative effect, but are designed for editorial revision, being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, they expurgate amending Acts, because having imparted the amendments to the main Acts, those Acts have served their purpose and have no further reason for their existence. At times, inconsistencies are also removed by repealing and amending Acts. The only objects of such Acts which in England are called Statute Law Revision Acts, is legislative spring-cleaning and they are not intended to make any change in the law. Even so, they are guarded by saving clauses drawn with elaborate care. ...."
In our opinion, the purpose of an amending Act is to plant the necessary amendments in the parent or the main Act, and once such planting has been effected, the planting Act (the amending Act), having served its purpose, need not any more remain there to tend the plant, as it were: the plant has taken root in the main Act, and thereafter, the amending Act has only to be repealed:
and if an amending Act is so repealed by a repealing Act, the repeal does not affect the plant, the amendment already planted hi the main Act. Subba Rao J., in following the above observation of Chakravartti C. J., has said that the main object of the repealing Act (called in England a Statute Law Revision Act) is only to strike out the unnecessary Acts and excise dead matter from the statute book in order to lighten the burden of the ever-increasing spate of legislation and to re move confusion from the public mind--is only to expurgate the amending Act which had served its purpose. Of course, the re pealing Act takes care to remove inconsistencies, if there are any. (See the drop ping of the reference to Section 32 from Section 14 by Act 8 of 1968.) Therefore, the repeal of an amending Act does not affect the amendments which have already been brought into the main Act.
5. Then we revert to the effect of Act 8 of 1968. The counsel of the petitioner has pointed out that Section 10 of Act 7 of 1966 was not repealed, so that the intention of the Legislature in dropping the other sections should not have the effect pointed out by us supra. We do not think that this contention is quite happy. What was done by Act 8 of 1968 was, first, to make Act 2 of 1965 as amended by Act 7 of 1966 an Act of the Legislature--to convert it from an Act of the President into an Act of the Legislature. Thereafter, the amending provisions, which had served their purpose, e.g., Sections 2 to 9, were dropped. Section 10 in Act 7 of 1966 was not an amending provision: it was not a provision planted in the main Act: it was a new provision added in Act 7 of 1966, so that, if that provision had to be retained as a provision enacted by the Legislature, it had necessarily to be retained. And that was what was done by Act 8 of 1968. Therefore, the contention of the counsel of the petitioner on this ground has also no force.
6. The counsel of the petitioner has drawn our attention to some observations in some decisions of the Supreme Court, which, the counsel has claimed, have the effect of laying down that a decree like the one which is sought to be executed in the case before us is a nullity. The first decision is Bahadur Singh v. Muni Subrat Dass ((1969) 1 SCWR 51), where the Supreme Court was considering Section 13 of the Delhi and Ajmer Rent Control Act. Section 13 (1) provided that, notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises should be passed by any Court in favour of the landlord against any tenant. Then followed a proviso which provided that nothing in the sub-section should apply to any suit or other proceeding for such recovery of possession if the Court was satisfied that one of the grounds mentioned in the proviso existed. (The proviso contained several grounds.) Evidently, under this sub-section, the Court gets jurisdiction to pass an order in eviction only if it is satisfied that one of the grounds mentioned in the proviso exists. What happened in that case was that an award, to which the landlord himself was not a party, was passed, under the Arbitration Act, allowing eviction of the tenant from the premises; and that, on the basis of the award, a decree was also passed. And it was that decree thai was sought to be executed. It is clear that, under Section 13 (1) of the Act, such a decree could not have been passed, because the jurisdiction of the Court to pass a decree in eviction was only on its bring satisfied that one of the grounds mentioned in the proviso existed: without considering the grounds, the Court could not have passed a decree in eviction. And this was what was pointed out by the Supreme Court in that rase. The next decision is Smt. Kan-shalya Devi v. K. L. Bansal, (1969) 1 SC WR 50 = (AIR 1970 SC 838). This was also a case under the Delhi and Ajmer Rent Control Act. In that case, the decree sought to be evented was a compromise decree; and the Supreme Court pointed out that the same reasoning given by it in the earlier decision applied to this case as well, namely, that, without considering the grounds mentioned in the proviso, no decree for eviction could have been passed, lastly, the decision in Ferozi Lal Jain v. Man Mal, (1970) 3 SCC 181 = (AIR 1970 SC 791) has also been brought to our notice, which again, we may point out, considered Section 13 of the Delhi and Ajmer Rent Control Act. In that case also, tho decree sought to be executed was a compromise decree; and therefore, the reasoning given in the earlier decisions of the Supreme Court applied to that case as well.
7. Now, let us consider the scheme of our Act in the light of these three decisions of the Supreme Court. Under Section 11 of our Act, the Rent Control Court is given power to puss orders in eviction on certain grounds; and when a petition for eviction is filed and a proceeding for eviction is pending, Section 12 (1) provides that the tenant should pay the admitted arrears of rent already accrued and the arrears accruing pending the proceeding, and if he fails to do so, he is precluded from contesting the proceeding. And Sub-section (3) of Section 12 obliges the Court (the word used is 'shall') to "stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building". The contention of the counsel of the petitioner is that, even if the tenant fails to deposit the arrears as contemplated by Section 12 (1), the Rent Control Court should consider whether the ground alleged in the petition for eviction as contemplated by Section 11 existed before it passes an order in eviction. The language of Section 13 (1) of the Delhi and Aimer Rent Control Act is materially different from Section 12 (3) of our Act. The counsel has also drawn our attention, in this connection, to the decision in Smt. Krishnabai Babulal Mishra v. Smt. Laxmibai, AIR 1970 Madh Pra 280, where the Madhya Pradesh Accommodation Control Aet has been considered by the Madhya Pradcsh High Court. The difference in language of the relevant provision in our Act will presently be brought info relief, when we just refer to the language of the relevant section in the Madhya Pradesh Act. Section 13 of the Madhya Pradesh Act provides that, when the tenant fails to deposit the arrears, "the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit". (The underlining is ours.) It is clear that, under the Madhya Pradesh Act, the Court is bound to proceed with the hearing of the suit, though the Court has the power to strike out the defence of the tenant, which means that, in proceeding with the suit, the Court must look into the grounds on which eviction is sought. In our Act, the language is very different, e.g., that, on the tenant's failure to deposit the arrears, the Court shall "stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building": there is no question of the proceeding going further, as is the case under the Madhya Pradesh Act, whereunder the suit has to be tried, or under the Delhi and Ajmer Rent Control Act, whereunder the grounds under the proviso have to be considered. The scheme of our Act is quite clear that, pending the proceeding for eviction, the tenant is bound to deposit the admitted arrears already accrued and the arrears accruing during the pendency of the proceeding. And if be fails to do so, the proceeding comes to an end; and the landlord should be given an order putting him in possession of the building. Therefore the decision of the Madhya Pradesh High Court cannot also help the petitioner.
8. We dismiss the civil revision petition with costs.