Mohammad Jamil Ahmad v. Suraj Narain Pd. — 1950 DIGILAW 48 (PAT)

Judgment RAMASWAMI, J. 1. The question which arises for decision in this appeal is whether the appellants are entitled to execute the decree for ejectment against the respondent with respect to a house in the town of Patna. 2. The material facts are not controverted. In 1944, the appellants instituted a suit and on 22-4-1944 obtained a decree for ejectment and for arrears of rent against the respondent. The appellants applied for executing the decree but in view of certain objections taken by the respondent the execution was delayed. The latest contention of the respondent was that in view of S. 11, Bihar Buildings (Lease, Bent and Eviction) Control Act (Act III [3] of 1947) the appellants cannot obtain possession of the house. The contention has been upheld by the lower Courts. 3. In support of the appeal Mr. M. Rahman addressed the argument that the Bihar Buildings Control Aot (Act III [3] of 1947) was not retrospective in its effect, that the appellants had instituted the suit and obtained the decree long before the date when the Act came into force and that the lower Courts ought not to have refused to execute the decree. Learned counsel referred to Kishori Lal V/s. Debi Prasad, A. I. E. (37) 1850 Pat. 50 in which the Fall Bench that the definition of the word "tenant" in S. 2 (h) of the Act was not retrospective in its operation. In the order of reference Sinha and Mahabir Prasad JJ. noticed the conflict between Shive- swar V/s. Parmeshwar, 27 Pat. 1 and Sant kuer v. Ganesh, 27 Pat. 695. In the former case, Manohar Lall and Imam JJ. held that Bihar Act III [3] of 1947 was not retrospective. In the latter case Imam and Narayan JJ. decided on similar facts that the provisions of Bihar Act in [3] of 1947 were retrospective. In the order of reference therefore the following question was formulated for the decision of the Full Bench whether the definition of the word "tenant" in Bihar Act III [3] of 1947 or the Bihar Ordinance II of 1946, which it "replaced is retrospective in its operation". All the Judges of the Full Bench answered this question to the effect that the definition was not retrospective. At page 59 the learned Chief Justice states: "I must confess that I do not understand the purport of this question. All the Judges of the Full Bench answered this question to the effect that the definition was not retrospective. At page 59 the learned Chief Justice states: "I must confess that I do not understand the purport of this question. Obviously the definition of tenant in the Ordinance of 1916 and the Act of 1947 did not apply to the House-rent Control Order of 1942. Neither the Ordinance nor the Act purports to amend the deSnition of tenant in the Order of 1942, either retrospectively or otherwise." Meredith J. (as he then was) states as follows : "Question (1)I find nothing in the definition of tenant or anywhere in the Act to make the definition retrospective. The wide definition, in my opinion, only comes into foroe with the Act. Sec.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 S. 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 expresBly 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 Aot will be retrospective in this senBe only that the Court cannot give deoree for eviction except under the conditions specified in sub-s, (1). That follows from the use of the words he shall not be liable to be evicted, which may be taken to mean that no deoree for eviction shall be passed. If any deoree is passed, it is useless because it cannot be executed." As a member of the Full Bench I had also held that the definition of the word "tenant" in the Act was not retrospective. 4 But the authority of the Full Bench case is of no avail to the appellants. If any deoree is passed, it is useless because it cannot be executed." As a member of the Full Bench I had also held that the definition of the word "tenant" in the Act was not retrospective. 4 But the authority of the Full Bench case is of no avail to the appellants. For the question to be determined in this appeal is not whether s. 2 (h) of the Act is retrospective but whether the execution of the decree is barred under S. 11 (1), Bihar Buildings Control Act of 1947. Sec.11 (1) enacts : "Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of 8. 12, where a tenant is in possession of any building, he shall not be liable to be evioted therefrom, whether in execution of a deoree or otherwise, except(a) in the oase of a month to month tenant, for non-payment of rent or breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment. . . ." In construing this section it is of importance to notice at the outset that retrospective operation is one matter and interference with the existing rights is another. If an Act provides that as on a past date the law should be taken to have been that which it was not, that Act would, in my opinion, be retrospective. That is not the case in this appeal. The question is whether a certain provision of the Act affects the execution of all decrees or only some decrees, namely, decrees granted after the Aot had come into force. The question is as to the ambit and scope of the Act and not as to the date as from which the new law, as enacted by the Act is to be taken to have been the law. In West V/s. Gwynne, (1911) 2 Ch. 1, Buckley L. J. states: "Take the case of a contract to pay money upon the event of a wager, or the case of an insurance against a risk which an Act subsequently declares to be one in respect of which the assured shall not have an insurable interest. In West V/s. Gwynne, (1911) 2 Ch. 1, Buckley L. J. states: "Take the case of a contract to pay money upon the event of a wager, or the case of an insurance against a risk which an Act subsequently declares to be one in respect of which the assured shall not have an insurable interest. In such a case, if the event has happened before the Act is passed, so that at the moment when the Act comes into operation a debt exists, an investigation whether the transaction is struck at by the Act involves an investigation whether the Act is retrospective. Suoh was the point which arose in Moon V/s. Durden, (1848) 2 Ex. 22 and in Knight V/s. Lee, (1893) 1 Q. B. 41.But if at the date of the passing of the Aot the event has not happened, then the operation of the Act in forbidding the subsequent coming into existence of a debt is not a retrospective operation, but is an interference with existing rights in that it destroys As right in an event to become a creditor of B." 5. In the present case, the question is whether on the proper construction of S. 11 of the Act the right of the decree-holder appellants has been interfered with. The language of the section is perfectly general : "Notwithstanding anything contained in any agreement or law to the contrary where a tenant is in possession of any building, he shall not be liable to he evicted therefrom whether in execution of a decree or otherwise." The section has unqualified effect and there is nothing in the seotion itself to confine it to decrees passed subsequent to the Act. The term "tenant" in s. 11 ought also to be construed with reference to S. 2 (h) which is to the following effect: "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." Sec.11 (2) of the Aot is also important. It states : "A landlord who seeks to evict his tenant under sub-s (1) shall apply to the Controller for a direction in that behalf. It states : "A landlord who seeks to evict his tenant under sub-s (1) shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, ia satisfied that the tenant is liable to be evicted under the provisions of sub-s. (1), he shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied he shall make an order rejesting the application." It is manifest that this section creates a new jurisdiction and has provided a new procedure for eviction of tenants. In Kishori Lal V/s. Debi Prasad, A. I. R. (37) 1950 Pat. 50 the Full Bench indeed held that the civil Court has no jurisdiction in view of s. 11 of the Act to make a decree for possession. In my opinion, therefore, S. 11 of the Act is a bar to the execution of a decree, even if it had been obtained before the Act had come into force. The contention of the appellants in this respect must fail. 6. Mr. M. Rahman made reference also to Shiveshwar V/s. Parmeshwar, 27 Pat. 1 in which a Bench of this Court held that the provisions of the Bihar House Eent Control Act of 1947 were not retrospective. But the material facts are to be distinguished. In that case the plaintiff had obtained a decree against the defendants for ejectment from the house and for arrears of rent. The suit was instituted on 8-5 41 and the decree was pronounced on 23-12-43. While the appeal was pending in the High Court the Bihar Buildings Control Aot of 1947 came into force. On behalf of the appellants, it was argued that the decree ought to be set aside on the ground that they were protected by s. 2 (h) and also by s. 11 cl. (1) (a), Bihar Buildings Control Act of 1947. The High Court refused to accept this contention on the ground that the provisions were not retrospective and held that the decree obtained by the landlord cannot be Set aside. (1) (a), Bihar Buildings Control Act of 1947. The High Court refused to accept this contention on the ground that the provisions were not retrospective and held that the decree obtained by the landlord cannot be Set aside. To my mind this decision is, with great respect oorrect upon the facts of that case; for it is manifest that s. 11 only bars the execution of a decree for ejectment, obtained by the plaintiff before the passing of the Act. This section does not warrant the High Court in appeal to interfere or set aside such a decree. In the present case, however, it is manifest that S. 11 (1) (a) is directly applicable and it must be held that the decree-holder cannot obtain possession of the house in execution of the decree. For these reasons, I should dismiss this appeal with oosts. NARAYAN, J. 7 I agree to the order proposed by my learned brother. The decree under execution is a decree for ejectment from a shop and it was passed on 22-4-44. The application for execution was registered as Exeoution case No. 20 of 1944 and this execution case is still pending, though by virtue of an order passed in a suit brought by the judgment-debtor for setting aside the deoree for ejectment the execution had been stayed for some time. The judgment-debtor filed an objection in this execution case to the effect that according to the provisions of s. 11, Bihar Buildings (Lease, Eent and Eviction) Control Act, 1947, he is not liable to be ejected. This Act is in pari materia with Bihar Buildings (Lease, Rent and Eviction) Control Ordinance 2 of 1946 and subs. 11 (1) of this Act lays down that notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of S. 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in exeoution of a decree or otherwise except for certain reasons which have been mentioned in the section. Sub-s. (2) provides that a landlord who seeks to eviot his tenant under sub-s. (1) shall apply to the Controller for a direction in that behalf and the rest of the sub-section lays down the procedure which the Controller has to follow. Sub-s. (2) provides that a landlord who seeks to eviot his tenant under sub-s. (1) shall apply to the Controller for a direction in that behalf and the rest of the sub-section lays down the procedure which the Controller has to follow. If this section is applicable to the present case, the decree-holders cannot eject the judgment-debtor in spite of the decree for ejectment which they have obtained. 8. The most important contention urged by Mr, Rahman on behalf of the decree-holder-appellants is that because this decree was passed in April, 1944 and because the decree holders were awarded compensation and mesne profits for a certain period, the tenanoy will be deemed to have terminated before this Aot came into force and hence the Act has no application in this case. The learned counsel relied on a Pull Bench deoision of this Court in Kishori Lal V/s. Debi Prasad, A. I. R. (37) 1950 Pat. 50 to which decision my learned brother was a party. One of the questions referred to the Pull Bench was whether the definition of tenant appearing in the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, or the Bihar Ordinanoe 2 of 1946, which it replaced, is retrospective in its operation and protects the defendant. This question was answered by my learned brother in the negative who expressed the opinion that the definition of the word tenant in the Bihar Act 3 of 1947 or Bihar Ordinance 2 of 1946 is not retrospective in its operation. Meredith J. (as he then was) referred to this question in the following terms: "In this question we are also asked to say whether the definition of tenant protects the defendants in the circumstances of this ease. I do not understand why we are asked to say whether it is retrospective, for it appears to me that, independently of whether it is J etrospective or otherwise, it does protect the defendants if they can show that they came within its terms." The learned Chief Justice observed as follows so far as this question was concerned: "I must confess that I do not understand the purport of this question. Obviously the definition of tenant in the Ordinanoe of 1946 and the Act of 1947 did not apply to the House-rent Control Order of 1942. Obviously the definition of tenant in the Ordinanoe of 1946 and the Act of 1947 did not apply to the House-rent Control Order of 1942. Neither the Ordinance nor the Act purports to amend the definition of tenant in the Order of 1942, either retrospectively or otherwise. Whether the definition in the Ordinance was a protection for the defendants from eviction otherwise than in accordance with S. 11 (2), while the Ordinance was in force, and whether the Act of 1947 similarly protects the defendants, must necessarily depend on whether the defendants are tenants, a matter whioh the Division Bench has neither decided nor referred to us." We are in this case primarily concerned with the interpretation of S. 11 (1) of the Act and the point which we have to determine is whether a decree for ejectment passed before the Act came into force can be executed after the Aot has come into force. It is certainly a general rule that when the law is altered during the pendency of an action the rights of the parties have to be decided according to the law as it stood when the action was begun unless the new statute shows a clear intention to vary such rights. So far as this particular statute is concerned a careful reading of the provisions of S. 11 (1) indicates that it applies to pending actions. In express terms it protects a tenant from eviction in execution of a decree and this part of the statute has to be given effect to even if the decree in execution by which eviction of the tenant is sought was passed before the Act came into force. The word tenant has been defined in s. 2 (h) of the Act and it includes a person continuing in possession after the termination of the tenancy in his favour. The judgment-debtor is the person who has continued in possession after the termination of the tenancy in his favour and Meredith J. in his judgment in the case of Kishori Lal V/s. Debi Prasad, says that whether the definition of the word "tenant" is retrospective or otherwise it does protect the defendants if they can show that they come within its terms. Beading therefore the provisions of s. 11 of the Act along with the provisions contained in s. 2 (h) of the Act we see no reason to differ from the view taken by the Courts below that the judgment-debtor is proteoted from eviction.