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1977 DIGILAW 195 (PAT)

Sallendra Nath Boy v. (Miss) Geeta Mazumdar

1977-10-14

S.K.CHOUDHURI

body1977
Judgment 1. This revision by the defendant is directed against the order dated 25-2-1977, passed in title suit No. 77 of 1974 by the Second Munsif, Bhagalpur, under S. 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act 1947 (Act III of 1947) (hereinafter to be called the Act) directing the defendant to deposit arrears of rent from June, 1974 to January, 1977 at the rate of Rs. 40.00 per month by 14-3-1977 and also the current rent by the 15th of the next following month failing which the defence against ejectment would stand struck out. 2. The plaintiff-opposite party has filed the aforesaid suit for eviction of the defendant on the ground of personal necessity and default in payment of rent from Jan., 1974 to May, 1974. The defendant has filed a written statement contesting the suit. If appears that, thereafter, an application under S. 11-A of the Act was filed praying for issue of a direction upon the defendant to deposit all the arrears of rent from Jan. 1974 and also the current rent. A rejoinder was filed by the defendant contesting the said application on various grounds, one of them being that the Act has already expired and therefore, no order for deposit could be made under the Act. It may be stated here that the suit was filed on the 12th June, 1974, After hearing the parties the court below passed the impugned order. 3. Mr. Sailesh Chandra Sinha, learned counsel, appearing in support of this application contended that the Act having expired, the court had no jurisdiction to pass the impugned order and therefore, the said order is liable to be set aside as without jurisdiction. It has, however, been contended by Mr. Devendra Prasad Sinha, appearing on behalf of the opposite party that in view of the second proviso to sub-sec. (3) of S. 1 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (Act 16 of 1977) (hereinafter to be called the new Act) having come into force with retrospective effect from 1st April, 1976, the impugned order would be considered to have been saved and, therefore, it is a good operative order. Alternatively, learned counsel for the opposite party contended that the impugned order should be considered to be an order passed under the new Act. 4. Alternatively, learned counsel for the opposite party contended that the impugned order should be considered to be an order passed under the new Act. 4. In order to appreciate the aforesaid argument of the learned counsel for the parties it is necessary to quote the second proviso of sub-sec. (3) of S. 1, as reliance was placed upon the said proviso by the learned counsel for both the parties, Sub-sec. (3) of S. 1 with the second proviso reads thus : "1. Short title, extent and commencement - x x x (3) Sec. 25 shall come into force at once and the remaining provision of this Act shall be deemed to have come into force on the list of April, 1976 and the Act shall remain in force up to and including the 31st March, 1981 : x x x Provided further that the expiration of the Bihar Buildings (Lease. Rent and Eviction) Control Act, 1947 (Bihar Act in of 1947) between the period commencing from the 1st of April 1976 and the commencement of this Act shall not : (a) render recoverable any sum which during the continuance thereof was irrecoverable or affect the right of a tenant to recover any sum which during the continuance of that Act was recoverable by him thereunder; or (b) affect any liability incurred under that Act or any punishment incurred in respect of any contravention of that Act or any order made thereunder; or (c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid; and any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed as if that Act had not expired." 5. It is not disputed that clauses (a) and (c) of the second proviso have no application to the present case. It is also not disputed at the Bar that the new Act was published in the Bihar Gazette, Extraordinary dated 8-9-1977. In the second proviso aforesaid, I have underlined the relevant words which apply to the present case. Reading the second proviso, it is manifest that the expiration of the Act between the period commencing from the 1st April, 1976 and the commencement of the New Act shall not affect any order made thereunder. The rest of the provisions of this proviso are not relevant for consideration in this case. Reading the second proviso, it is manifest that the expiration of the Act between the period commencing from the 1st April, 1976 and the commencement of the New Act shall not affect any order made thereunder. The rest of the provisions of this proviso are not relevant for consideration in this case. From the words underlined in the second proviso it is clear that such orders which have been passed thereunder (meaning thereby the Bihar Act III of 1947), have been saved by the second proviso quoted above. In my opinion the word "thereunder" has great significance. It presupposes that the order which was passed must be a valid order passed under Act III of 1947 at any time till before the expiry of the Act, namely, on or before the 31st March, 1976. Such an order validly passed under that Act has been intended to have been saved by the second proviso by the words underlined. I may illustrate it by an example. Suppose an order was passed under Sec.11-A on the last date, namely, the 31st March, 1976. According to law such an order is a valid order as on that date the court had full jurisdiction to order for deposit under S. 11-A of the Act. On the next day however, the Act stood expired. The tenant may take the defence that the Act itself having expired the next day, there was no obligation on his part to comply the said order, and the court had no jurisdiction to strike out the defence. It is these orders which have been clearly saved by the words underlined by me in the second proviso quoted above. 6. The present order having been passed on 25-2-1977, when admittedly the Act was not in force, the court had no jurisdiction to make an order for deposit under Sec.11-A of the Act and direct striking out the defence in default of compliance of that order. 7. The alternative point, indicated by me above, raised by Mr. Devendra Pd. Sinha is also worth consideration here. Learned counsel has argued that the present impugned order should be treated as an order passed under the New Act, it having come in force from 1st April, 1976. 7. The alternative point, indicated by me above, raised by Mr. Devendra Pd. Sinha is also worth consideration here. Learned counsel has argued that the present impugned order should be treated as an order passed under the New Act, it having come in force from 1st April, 1976. I may state here that it has not been pointed out to me any provision in the New Act under which such order could be treated to have been saved. Reliance was placed only upon the deeming provision contained in sub-sec. (3) of S. 1 which says that the remaining provision of the Act "shall be deemed to have come into force on the 1st April, 1976." In order to see if such a construction can be put it is necessary, therefore, to look into the scope, object and purpose of the enactment. Reading the preamble, it is manifest that the Act was enacted to safeguard the interest of the tenants from unreasonable eviction as well as to give them certain benefits and also to save them from the oppressive acts of the landlords. The purpose and object of the New Act are also the same. It is also a settled canon of construction of the Statute that the interpretation which aids in furtherance of the object for which the statute was enacted, should be preferred to the one which would frustrate its very object. Applying the aforesaid principle of construction, it is no doubt clear that if the argument of the learned counsel for the opposite party is accepted then, in my opinion, great hardship, inconvenience and injustice would be caused upon the tenant because in that case the impugned order would come into operation from the date it was passed and much before the date the New Act was published his defence could have stood struck out. In that view of the matter, therefore, by putting such a construction the right of the tenant to contest the suit, which is a very valuable right, will be taken away and the tenant, for no fault on his part, would be prevented from defending the suit for ejectment and thus would be penalised. Such construction, therefore, in my opinion, cannot be put. Further, the application, it is not disputed at the Bar, was filed under S. 11-A of the Act and not under S. 13 of the New Act. Such construction, therefore, in my opinion, cannot be put. Further, the application, it is not disputed at the Bar, was filed under S. 11-A of the Act and not under S. 13 of the New Act. It also could not be an application under S. 13 of the New Act on the date when the application was filed, because the New Act has been published for the first time in the Bihar Gazette on 8-9-1977. 8. Another relevant question, however, may arise viz. as to whether the suit filed under the old Act, which was not disposed of on or before the 31st March, 1976, would continue? If such a suit could not continue then the question of depositing rent under any of the provisions either of the Act or the New Act would not arise. It cannot be disputed that the suits which were filed on or before the 31st of March, 1976. were not suits under Act III of 1947 but were suits filed under the general law viz., Section 9 of the C P. C., after terminating the tenancy by giving notice as required under S. 106 of the T. P. Act. If Act III of 1947 would not have been there, then the landlord merely by proving the termination of the tenancy i.e., the notice to quit would have obtained a decree and put the same in execution. Till the Act was there the landlord was required to obtain a decree on proof of one or more of the grounds mentioned in S. 11 in which case only the decree was made executable. Now, of course, though the Act has expired but immediately on its expiration the New Act has come into force with retrospective effect and therefore, under S. 12 of the New Act (which is in pari materia with S. 11 of the Act) the landlord has again to prove one or more of the grounds mentioned in that section to obtain an executable decree in such suits. In my opinion, therefore, it is clear that a suit for eviction filed after determining the tenancy cannot be considered to be a suit filed under the Act or under the New Act as the case may be, but were suits filed under the C. P. C. Such suits, therefore, would continue and cannot be considered to have become dead on the expiry of the Act. Considering all the pros and cons and for the reasons stated above, I am of the opinion that the impugned order is not saved by the second proviso to the New Act. 9. In the result, the application is allowed and the impugned order is set aside. I would however make no order as to costs. I find that the language of S. 11-A of the Act and S. 13 of the New Act are exactly similar in their wordings. Therefore, it will be open to the plaintiff to make a prayer in the court below to consider the application filed under S. 11-A of the Act as an application under S. 13 of the New Act or may file a fresh application under S. 13 of the New Act as the plaintiff would like. If any such course is adopted by the plaintiff without delay and at any time before the hearing of the suit, the court below will dispose of such application with law after giving opportunity to the parties of a hearing.