Namamal v. Radhey Shyam — 1969 DIGILAW 2 (RAJ)

LODHA, J.—This appeal has been brought by certificate granted under sec. 18 (2) of the Rajasthan High Court Ordinance from the judgment of the learned Single Judge dated 18th March, 1966 in S. B. Civil Misc. Application No. 61 of 1965 (in S. B. Civil Regular Second Appeal No. 452 of 1960). 2. The relevant facts giving rise to this appeal may be stated within a short compass : 3. The plaintiff-respondent Radheyshyam (landlord) filed a suit for arrears of rent and ejectment from a shop situated in Ramganj Bazar. Jaipur, against the defendant-appellants Namamal and others (tenants) on two grounds viz. that the defendants have not paid rent of the premises for more than twelve months and that the premises are required reasonably and bonafide by the landlord for his own occupation. The landlords plea for personal necessity was rejected by the trial court. However the suit for arrears of rent and ejectment was decreed on the ground that the defendant-tenants had committed default in payment of rent and had thereby incurred the liability to be ejected. On appeal by the defendants the learned Senior Civil Judge, Jaipur set aside the judgment and decree of the trial court and dismissed the suit on 8-2-1960, by giving the defendants benefit of sec. 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (which for the sake of brevity will be referred to hereinafter as "the Act"). 4. Aggrieved by the judgment and decree of the Senior Civil Judge, Jaipur the plaintiff landlord filed appeal before this Court which was allowed on 8-4-1965 and the suit for ejectment was decreed only on the ground of default in payment of rent. On 30-4-1965 the defendants applied before the learned single Judge for grant of leave to appeal to the Division Bench from the judgment of the learned Single Judge under sec. 18(2) of the Rajasthan High Court Ordinance, 1949 but this application was rejected the same day. Thereafter on 3-5-1965 the defendants filed a petition under Art. 136(1) of the Constitution of India to the Supreme Court for grant of Special Leave to Appeal from the judgment dated 8-4-1965. 18(2) of the Rajasthan High Court Ordinance, 1949 but this application was rejected the same day. Thereafter on 3-5-1965 the defendants filed a petition under Art. 136(1) of the Constitution of India to the Supreme Court for grant of Special Leave to Appeal from the judgment dated 8-4-1965. While the application for grant of Special Leave to Appeal was pending before the Supreme Court, the plaintiff landlord took out execution of the decree passed by this Court on 8 4-1965 and obtained possession of the shop in question on 8-5-1965. The defendants application for grant of Special leave to Appeal to the Supreme Court under Art. 136(1) of the Constitution was also rejected on 18-5-1965. 5. Soon after the rejection of the petition for grant of Special Leave to Appeal to Supreme Court, sec. 13-A was inserted in the Act by sec. 3 of the Rajasthan Premises (Control of Rent and Eviction) Amendment Act No. 12 of 1965 which received the assent of the President on 2-6-1965 and was published in the Rajasthan Gazette, Part IV-A (Extra-Ordinary) dated 9-6-65. The amending Act came into force on 9th June, 1965 by virtue of S. 5 of the Rajasthan General Clauses Act, 1955. Since the question of applicability of sec. 13-A to the present case is the only point we are called upon to determine, it would be proper to reproduce this section in extenso : "Sec. 13 A. Special provisions relating to pending and other matters : Notwithstanding anything in sec. 13, sub-sec. (l)(a), or sub-sec. (4) and the proviso thereto or sub-sec. 13-A to the present case is the only point we are called upon to determine, it would be proper to reproduce this section in extenso : "Sec. 13 A. Special provisions relating to pending and other matters : Notwithstanding anything in sec. 13, sub-sec. (l)(a), or sub-sec. (4) and the proviso thereto or sub-sec. (5) as they existed before the commencement of the amending Act : (a) no court shall, in any proceeding pending on the date of commencement of the amending Act, pass any decree in favour of a land-lord for eviction of a tenant on the ground of non-payment of rent, if the tenant applies under clause (b) and pays to the landlord, or deposits in court, within such time such aggregate of the amount or rent in arrears, interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause : (b) in every such proceeding, the court shall, on the application of the tenant made within thirty days from the date of commencement of the amending Act, notwithstanding any order to the contrary, determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon at six percent per annum and costs of the suit allowable to the landlord; and direct the tenant to pay the amount so determined within such time not exceeding ninety days, as may be fixed by the court; and on such payment being made within the time fixed as aforesaid, the proceeding shall be disposed of as if tenant had not committed any default; (c) the provisions of clauses (a) and (b) shall mutatis mutandis apply to all appeals, or applications for revisions, preferred or made after the commencement of the amending Act, against decrees for eviction passed before such commencement with the variation that in clause (b), for the expression "from the date of commencement of the amending Act" the expression from the date of the presentation of the memorandum of appeal or application for revision" shall be substituted. (d) if in any proceeding any decree for eviction on the ground only of nonpayment of rent has been passed on or after the 21st March, 1955, but before the date of commencement of the amending Act, and in which no appeal or application for revision has been preferred or made the court may, on the application of the tenant made within thirty days from the date of commencement of the amending Act, re-open the proceeding if the tenant deposits all arrears of rent upto the date of such application as also the amount of interest thereon at six percent per annum and costs of the suit; and thereafter such proceeding, shall be disposed of as if such deposit of rent constituted a valid payment to landlord in time." On 1-7-1965 the defendants made an application under clause (d) of sec. 13-A of the Act stating that they had deposited the arrears of rent upto the date of the application as also the amount of interest thereon at 6% per annum and costs of the proceedings, for payment to the plaintiff decree-holder. It was prayed that the decree passed on 8-4-1965 by this Court for ejectment of the defendants from the shop in question may be re-opened and the proceedings in the second appeal may be disposed of as if such deposit of rent constituted a valid payment and the suit for ejectment be dismissed. This application was opposed by the plaintiff landlord who pleaded that the application filed by the defendants for leave to appeal to the Division Bench under the Rajasthan High Court Ordinance, as well as the petition for special leave to appeal to the Supreme Court against the judgment and decree of this Court dated 8 4-1965 had both been rejected on 30-4-1965 and 18-5-1965 respectively and that the possession of the shop in question had been handed over to the plaintiff-landlord in the course of execution on 8-5-1965 It was contended that the application filed by the defendants for leave to appeal amounted to filing an appeal "within the meaning of cl. (d) of sec. 13-A and therefore the defendants could not ask for reopening of the proceedings of the second appeal and dismissal of the suit. 6. (d) of sec. 13-A and therefore the defendants could not ask for reopening of the proceedings of the second appeal and dismissal of the suit. 6. The learned single Judge accepted the contentions raised on behalf of the plaintiff landlord and held that the application filed by the defendants for grant of leave to appeal from the judgment of a single Judge must be regarded as an appeal "within the meaning of clause (d) of sec. 13-A of the Act, and, therefore, they cannot take advantage of clause (d) of that section. In this view of the learned single Judge by his judgment dated 18 3-1966 dismissed the defendants application under sec. 13-A of the Act. But at the same time he declared the case fit one for appeal to the Division Bench. It is in pursuance of the leave granted by the learned single Judge that this Special Appeal has been filed. 7. We have heard Mr. R.K. Restogi on behalf of the defendant-appellants and Shri P.C. Bhandari learned counsel for the respondent plaintiff at some length. Mr. Rastogi has argued that neither the application dated 30-4-1965 for grant of leave to appeal to Division Bench nor the petition dated 18-5-1965 for grant of Special Leave to Appeal to the Supreme Court under Art. 136 of the Constitution can be treated as an appeal". It is contended that the learned single Judge was in error in holding that the defendant-appellants cannot take advantage of sec. 13-A, cl. (d) of the Act, on the ground that they had preferred an appeal from the judgment and decree dated 8 4 1965. He has submitted that the authorities relied upon by the learned single Judge have no application to the facts and circumstances of the present case. The learned counsel for the respondent, on the other hand, strongly supported the view taken by the learned single Judge by reference to a few more authorities besides those referred to in the judgment under appeal. 8. Before we embark upon the consideration of the various authorities relied upon by the learned Single Judge and cited at the Bar, we consider it proper to examine the provisions of sec. 13-A. It is crystal clear from the various clauses of this section that by inserting sec. 8. Before we embark upon the consideration of the various authorities relied upon by the learned Single Judge and cited at the Bar, we consider it proper to examine the provisions of sec. 13-A. It is crystal clear from the various clauses of this section that by inserting sec. 13-A, the legislature wanted that an opportunity be afforded to the tenants who are liable to be ejected on the ground of non-payment of rent, to pay the entire arrears of rent along with interest and costs of the proceeding and thereby save themselves from ejectment. Sub-clause (a) prohibits a Court from passing any decree in favour of a landlord for eviction of a tenant on the ground of non-payment of rent in a pending proceeding, if the tenant expresses his willingness to pay the whole of the arrears of rent together with interest thereon and the costs within 30 days from the date of the commencement of the Amending Act, as provided under clause (b) of that sub-section. The words "any proceeding pending" used in sub-clause (a) relate to all pending matters, be they suits appeals or revisions, pending on the date of commencement of the amending Act. Subclause (c) makes provision with respect to appeals or applications for revision which though not pending on the date of the commencement of the amending Act may be preferred thereafter and it has been provided in this clause that the provisions of clauses (a) and (b) shall mutatis mutandis apply to all such appeals or applications for revision as may be preferred after the commencement of the Amending Act, with this modification that the application for depositing the arrears of rent, interest and cost be made by the tenant within 30 days from the date of the presentation of the memorandum of appeal or application for revision. Thus, clauses (a), (b) and (c) of this section have made provision in respect to suits as well as appeals and applications for revision pending on the date of the commencement of the Amending Act and also appeals for applications for revision which may be preferred after the commencement of the amending Act against decrees for eviction passed before such commencement. 9. 9. Then we come to clause (d) which lays down that if a decree for eviction on the ground only of nonpayment of rent has been passed on or after the 21st March, 1955, but before the date of commencement of the amending Act, and in which no appeal or application for revision has been preferred or made, the tenant may apply within the prescribed time for reopening the proceeding by depositing arrears of rent, interest thereon and costs. The purpose of the Legislature in enacting this clause is to give retrospective effect to sec. 13-A to all those matters decided on or after the 21st March, 1955. But with respect to the application of this clause a distinction is being drawn by the learned counsel for the respondent between those tenants who did not file appeals or application for revision from the decrees of eviction passed against them and those who did file appeals or applications for revision. It is argued that those who had filed appeals or applications for revision cannot press into service clause(d) which can be availed of only by those who had not filed any appeal or revision. We, however, find ourselves unable to accept this interpretation, as in our opinion, acceptance of such an interpretation would involve absurdity and inconsistency. We fail to understand how the legislature could have intended to penalise those tenants who had preferred appeals or applications for revision and benefit those tenants only who had not filed appeals or revisions on account of their own inaction ? To us it appears that under this clause the legislature extended protection to all those tenants against whom decrees for eviction had been passed on the ground only of non-payment of rent before the date of commnce-ment of the amending Act but on or after the 21st March, 1955 whether in suit or in appeal or in revision. The clause makes specific reference to those tenants, who may not have filed appeals or revisions presumably because the statute did not allow further right of an appeal or revision against such a decree or who did not find force in any further appeal or revision in view of the state of law as it then existed, and who could not prefer appeal or revision after the commencement of the amending Act because of the expiration of the period of limitation. Thus the correct interpretation of this clause which would be consistent with the intention or purpose of the statute and which would at the same time avoid any absurdity, repugnance or inconsistency and would suppress the mischief, would be, that if in any proceeding any decree on the ground only of non-payment of rent has been passed on or after the 21st March. 1955 but before the date of the commencement of the amending Act, and in which either no appeal or application for revision has been preferred or made or even if an appeal or application for revision has been preferred but the same has been rejected and the decree for eviction confirmed, the Court may on the application of the tenant made within 30 days from the date of the commencement of the amending Act, reopen the proceedings if the tenant deposits all arrears of rent upto the date of such application as also the amount of interest thereon at 6% per annum and costs of the suit. This clause cannot be so interpreted as to mean that if any tenant has preferred an appeal or application for revision from the decree for eviction, then he will be deprived of the protection given by sec. 13-A. As already observed above the intention of the Legislature in enacting sec. 13-A was to protect the tenants against eviction. While interpreting this clause, we cannot ignore this apparent intention of the legislature. It was observed by Pollock G. B. in Waugh vs. Middleton(l) : "It must, however, be conceded that where the grammatical construction is clear and manifest and without doubt, that construction ought to prevail, unless there be some strong and obvious reason to the contrary. But the rule advert to is subject to this condition, that however plain the apparent grammatical construction of a sentence may be, if it be properly clear from the contents of the same document that the apparent grammatical construction cannot be the true one, then that which, upon the whole, is the true meaning shall prevail, in spite of the grammatical construction of a particular part of it." And substantially the same opinion is expressed by Lord Selborne in Caledonian Rly. vs. North British Rly(2) : "The mere literal construction of a statute ought not to prevail if it is opposed to the intentions of the legislature as apparent by the statute, and if the words are sufficiently flexible to admit of some other construction by which that intention can be better effectuated." Again Lord Fitzberald in Bradlaugh vs. Clarke(5) observed as follows : "I apprehend it is a rule in the construction of statutes that in the first instance the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with, any expressed intention or declared purpose of the statutes, or if it would involve any absurdity, repugnance, or inconsistency, the grammatical sense must then be modified, extended, or abridged, so far as to avoid such an inconvenience, but no further." 10. Maxwell in his book on Interpretation of Statutes (11th Edition) at page 226 observes thus : "The rule of strict construction, however, whenever invoked, comes attended with qualifications and other rules no less important, and it is by the light which each contributes that the meaning must be determined. Among them is the rule that that sense of the words is to be adopted which best harmonises with the context and promotes in the fullest manner the policy and object of the legislature. The paramount object, in construing penal as well as other statutes, is to ascertain the legislative intent, and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention. They are, indeed, frequently taken in the widest sense, sometimes even in a sense more wide than etymologically belongs or is popularly attached to them, in order to carry out effectually the legislative intent, or, to use Sir Edward Cokes words, to suppress the mischef and advance the remedy." 11. In view of the principles set out above we are inclined to hold that the legislature intended to give benefit of clause (d) not only to those tenants who did not file appeals or applications for revision from the decrees of eviction passed against them but also to those against whom decrees for eviction had been passed finally on or after the 21st March, 1965 but before the date of commencement on the amending Act. This clause does not envisage that if after the decree for eviction finally passed on or after the 21st March, 1965 but before the date of commencement of the amending Act, a tenant has made an application for leave to appeal, he shall not be entitled to the benefit of this clause. According to the interpretation which we have put on this clause it would not make any difference even if the application for leave to appeal is treated as an "appeal". The defendants appellants were therefore entitled to make an application under clause(d) of sec. 13-A and their application should not have been thrown out on the ground that they had made an application for leave to appeal from the decree for eviction passed by this Court on 8-4-1965. In this, view of the matter, we regret, we cannot subscribe to the view of the learned single Judge, that, "It is only in those cases in which a decree for ejectment has been passed before 9-6-1965 and an appeal against the decree for ejectment is pending that relief has been granted under clause (c) and that if an appeal is preferred but is rejected then the tenant is not entitled to any relief." In our humble view the benefit of sec. 13-A would be available to those tenants also against whom a decree for eviction had been passed on the ground of non-payment of rent on or after 21-3-55 but before the date of commencement of the amending Act even though an appeal was preferred by them and rejected before the commencement of the Act. It may thus be not necessary for us to determine the question whether the application for grant of leave to appeal must be regarded as an "appeal". However since the judgment of the learned single Judge has mainly proceeded on this point and the case has also been argued before us at a considerable length on that basis, we consider it proper to decide this question also. 12. We may state atonce that no authority in point has been placed before us whether an application for leave to appeal can be regarded as an "appeal" ? 12. We may state atonce that no authority in point has been placed before us whether an application for leave to appeal can be regarded as an "appeal" ? The learned single Judge relied upon the following authorities in support of his view : (a) Nagendra Nath Dey vs. Suresh Chandra Dey (4) (b) Nagappa Bandappa Kadadi vs. Gurushantapa Shankrappa Umarji (5) (c) Chappan vs. Moidin Kutti (6). 13. We shall, therefore, consider each of these authorities. In Nagendra Nath Dey vs. Suresh Chandra Dey(4), their Lordships of the Privy Council were dealing with the provisions of Art. 182(2) of the Limitation Act, 1908. In a suit to enforce a mortgage the Subordinate Judge disallowed Madan Mohans claim on 24-6-1920 and passed a final decree for sale of the mortgaged property. The decree was, however, drawn up on 2-8-1920 but properly dated as of 24th June. On 27th August 1920 Madan Mohan presented an application to the High Court purporting to be an appeal from the order of the Sub-ordinate Judge dated 24-6-1920. The appeal was admitted and heard in due course, though irregular in form as not being an appeal against the decree of the Sub-ordinate Judge and being insufficient by stamped for this purpose. An objection was taken to the form of the appeal, and in the result, the appeal was dismissed both on the ground of irregularity and upon the merits and the dismissal was embodied in the decree of the High Court dated 24-8-1922. It was argued that Madan Mohans application of 27-8-1920 (referred to as the 1920 appeal) was by reason of this irregularity not an appeal at all but an abortive attempt to appeal. While rejecting this contention their Lordships of the Privy Council were pleased to observe, "There is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a Sub-ordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent." 14. From the facts narrated above, it would be clear that the application presented to the High Court by Madan Mohan purported to be an appeal from the order of the Subordinate Judge dated 24-6-1920. From the facts narrated above, it would be clear that the application presented to the High Court by Madan Mohan purported to be an appeal from the order of the Subordinate Judge dated 24-6-1920. To all intents and purposes it was an appeal, though irregular and insufficiently stamped. Thus, the facts of this case were altogether different and the case is an authority on the point whether an application for leave to appeal is an appeal" ? 15. In Nagappa Bandappa Kadadi vs. Gurushantappa Shankrappa Umarji(5) there again arose a question as to the interpretation of Art, 182(2) of the Limitation Act, 1908, and the learned Judges of the Bombay High Court held, after referring to the Privy Council case cited above(4) that an appeal against an order granting review even though it is incompetent would be included in the definition of "appeal" within the ordinary acceptation of the term. Thus, in this case also, an appeal from an order granting the review had been filed, even though it was incompetent and it was held that it was nevertheless an appeal as contemplated by the Civil Procedure Code. 16. In Chappan vs. Moidin Kutti(6) the question which arose for decision was whether the power of revision exercised by the High Court under sec. 622 of the old Civil Procedure Code was a part of the Courts appellate jurisdiction and in this connection Subramania Ayyar J. referred to the Dictionary meaning of the word "appeal" as contained in the Websters dictionary. The following passage from the judgment of Subramania Ayyar J. was strongly relied upon by the learned counsel for the respondent in support of his argument : "Now according to Websters Dictionary the first meaning, in law, of the noun appeal is the "removal of the cause or a suit from an inferior to a superior Judge or court for re examination or review". The explanation of the term in Whartons Law Lexicon, which is only different in words, is "the removal of a cause from an inferior to a superior Court for the purpose of "testing the soundness of the decision of the inferior Court." And in consonance with this broad meaning of the word,, appellate jurisdiction means "the power of a superior Court to review the decision of an inferior Court" Here the two things, which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. This has been well put by Story : "The essential criterion of appellate jurisdiction is,, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject matter has been already instituted and acted upon by some other Court, whose judgment or proceedings are to be revised, (sec. 1761) Commentarises on the Constitution of the "United States" (p. 80) Suffice it to say that even if we adopt the dictionary meaning of the word "appeal" as "the removal of cause or the suit from an inferior to superior Judge or court for re-examination or review," it cannot be said that merely by filing an application for leave to appeal the cause or suit is removed from an inferior court to a superior court for re-examination or a review. An application for grant of leave to appeal is only an application for grant of necessary permission to file an appeal. If the permission is granted then only the applicant can file appeal. Thus, making of an application for leave to appeal cannot be regarded as "appeal" itself. The facts of the Madras case are altogether different and the observations made by Subramania Ayyar J. have no application to the facts and circumstances of the present case. 17. Learned counsel for the respondent also relied upon Secretary of State for India in Council vs. British India Steam Navigation Company(7). In this case, the question canvassed before the learned Judge of the Calcutta High Court was whether the revisional jurisdiction is essentially distinct from the appellate jurisdiction, or whether it was intended by the Letters Patent to be included in the appellate jurisdiction ? In this case, the question canvassed before the learned Judge of the Calcutta High Court was whether the revisional jurisdiction is essentially distinct from the appellate jurisdiction, or whether it was intended by the Letters Patent to be included in the appellate jurisdiction ? In this connection, the learned Judges observed, "Now the term Appeal is defined in the Oxford Dictionary, Volume 1, page 398, as the transference of a case from an inferior to a higher Court or tribunal in the hope of reversing or modifying the decision of the former." Reference was also made to the definition of the term "appeal" contained in the law Dictionary by Sweet where it was defined "as a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court, or Court of appeal." This case also cannot be of any assistance to us in deciding the point argued before us. 18. Learned counsel for the appellants on the other hand referred us to Ghanshyam Mohapatra vs. Suryamani Swain(8),. It was observed in this case that the word "appeal" as appearing in Art. 182(2} is one confined only to such appeals as are directly taken against a decree, but it does not include all appeals from decrees passed in collateral proceedings such as the one under O. 9, r. 13, Civil P.C. In support of this observation the learned Judges of the Orissa High Court placed reliance on Bhanwanipore Banking Corporation" Ltd., vs. Gouri Shanker Sharma 9). We may state here that these authorities have also no bearing on the point at issue before us and we, therefore, do not feel inclined to make a detailed reference to them. 19. In absence of there being any direct case law on the point, we are inclined to hold that an application for leave to appeal cannot be considered as an appeal within the ordinary acceptance of the term. The prayer contained in an application for leave to appeal is grant of permission to file an appeal Such an application cannot be considered as an irregular or incompetent appeal. We have perused the original application for leave to appeal before Division Bench as well as the certified copy of the petition for grant of special leave to appeal to the Supreme Court made under Art. 136 of the Constitution. We have perused the original application for leave to appeal before Division Bench as well as the certified copy of the petition for grant of special leave to appeal to the Supreme Court made under Art. 136 of the Constitution. None of these two documents even purports to be an appeal nor do they contain any prayer for setting aside or revising the decision of the learned Single Judge dated 8-4-1965. The only prayer contained in these applications is that leave to appeal may be granted. 20. After bestowing our careful consideration on the question, we are of the view that an application for leave to appeal cannot be regarded as an "appeal and therefore, merely because the defendant - appellants filed an application for leave to appeal to Division Bench and also a petition for Special Leave to Appeal to the Supreme Court under Art. 136 of the Constitution, it cannot be said that they had preferred an appeal" either to the Division Bench or to the Supreme Court. We are, therefore, unable to subscribe to the view taken by the learned Single Judge that an application for grant of leave to appeal must be regarded as an "appeal" within the meaning of clause (d). 21. This appeal is, therefore, allowed, the order of the learned Single Judge dated 18-3-66 is set aside and the case is sent back to him for disposal of the defendant-appellants application under sec. 13-A of the Act according to law. In the circumstances of the case, the parties are left to bear their own costs of this appeal.