Debi Prasad Kapoor v. Shafiqan Begum — 1981 DIGILAW 405 (ALL)

JUDGMENT Deoki Nandan, J. - This is a defendant's second appeal in a suit for ejectment and arrears of rent and damages in respect of a house situate at Almora governed by the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (U.P. Act No. III of 1947). The suit was filed on the basis of a permission under Section 3 of the Act. The plaintiff purchased the same on 27-4-1964. The defendant was a tenant in the upper storey on payment of Rs. 5/- per month under an allotment order dated 11/12-8-1958. The allotment order showed Mohd. Wasi, through his agent Mohd. Yamin, as its landlord. The sale deed in favour of the plaintiff. Ext. 1, shows that the house was transferred to the plaintiff by Mohd. Wasi and his father Mohd Yasin. One of the points raised in the defence was that the plaintiff alone was not the landlord and Aziz Ahmed, Zamir, Ahmad, Ishaq, Ashfaq and Badri Lal were also co-owners of the house inasmuch as their names were recorded in the revenue records along with those of Mohd. Yasin and Mohd. Wasi. It was claimed, on that ground, that the permission was bad and the plaintiff alone was not entitled to sue. Another plea raised in the defence was that notice under Section 106 of the Transfer of Property Act had not been served on the defendant. It was further affirmed by the defendant that the full rent had been deposited in Court under Section 7-C and he was not a defaulter. The trial Court held, on an appraisal of the evidence on record, that Aziz Ahmad, Zamir Ahmad, Ishaq, Ashfaq and Badri Lal were not co-owners of the house in suit and the permission obtained under Section 3 of the U.P. Act No. III of 1947 was valid and the plaintiff alone was entitled to sue. The due service of the notice under Section 106 of the Transfer of Property Act was held to be sufficiently proved and the deposit of rent under Section 7-C was held to be of no effect in as much as the suit was based on permission and not on default in payment of rent. The suit was accordingly decreed for ejectment and recovery of Rs. 180/- up to the date of suit and pendent lite and future mesne profits at the rate of Rs. /- (sic) per month. The suit was accordingly decreed for ejectment and recovery of Rs. 180/- up to the date of suit and pendent lite and future mesne profits at the rate of Rs. /- (sic) per month. The lower appellate Court has confirmed these findings, hence the second appeal. 2. Although the second appeal was filed and admitted after hearing under Order 41, Rule 11, C.P.C. after the enforcement of the amendments made by the Code of Civil Procedure (Amendment) Act 1976, the substantial questions of law, involved in the case, if any, were not formulated and specified in the memorandum of Appeal by the appellant, nor by the Court. I accordingly ignored the technicality and asked the learned counsel for the appellant to formulate and specify the substantial questions of law, if any, on which he proposed to press the appeal. 3. The first point urged by the learned counsel for the appellant was that the suit was not maintainable in view of the repeal by the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act., 1972, with effect from 15-7-1972, and the subsequent expiry of U.P. Act No. III of 1947, which was a temporary Act, on 30-9-1972. The question, which undoubtedly is a substantial question of law, thus raised was, whether the suit, giving rise to the present second appeal, which was filed on 11-6-1969, before the repeal of U.P. Act No. III of 1947 by U.P. Act No. XIII of 1972, could be maintained even after the expiry of U.P. Act No. III of 1947 on 30-9-1972? The question, so raised, was not taken as a ground of objection in the memorandum of Appeal, but being a substantial question of law and being inspired by the decision of the Supreme Court in Qudrat Ullah v. Municipal Board, Bareilly ( AIR 1974 SC 396 ) and M/s. Allahabad Theatres (Pvt.) Ltd. v. Smt. Kusum Kumari ( AIR 1974 All 73 ): (1974 All LJ 796), I permitted the learned counsel to raise the question. Learned counsel also tried to urge the point that the suit was not maintainable inasmuch as all the co-landlords had not joined in bringing it and in that context he questioned the correctness of the finding of the two courts below that the plaintiff was the landlord, as also the point that the permission was invalid on the ground that the defendant-appellant was not afforded a reasonable opportunity of putting forth his point of view before the Commissioner who had granted the permission by allowing the revision against the Rent Control Officer's order ex parte. 4. I shall deal with the points raised seriatim. 5. The impact of the repeal by U.P. Act No. XIII of 1972 of the U.P. Act No. III of 1947 on 15-7-1972 and its later expiry on 30-9-1972, on a suit for ejectment, on one of the grounds mentioned under Section 3 of the U.P. Act No. III of 1947, in respect of an accommodation, to which the provisions of that Act were applicable and the provisions of the U.P. Act No. XIII of 1972 are also applicable, has been discussed at some length in an unreported judgment of this Court in S.A. No. 35 of 1969, L. Sita Ram v. Bishan Lal decided on 14-3-1980. The cases of M/s. Allahabad Theatres (Pvt.) Ltd. (1974 All LJ 796) (supra) and Kudrat Ullah v. Municipal Board Bareilly ( AIR 1974 SC 396 ) (supra) were found by me, for the reasons given in that judgment, to be not applicable to the case of a building to which both U.P. Act No. III of 1947 and U.P. Act No. XIII of 1972 were applicable and it was held that in respect of such an accommodation it cannot be said that any substantial change has been brought about in the restrictions on suit for eviction of To month (sic) by the repeal and re-enactment of the provisions of the U.P. Act No. III of 1947 by the U. P. Act No. XIII of 1972 with effect from 15-7-1972 or by its subsequent expiry on 30-9-1972. 6. 6. It was then suggested in this context that the proper remedy for the plaintiff-respondent, was to have applied to the prescribed Authority for enforcement of the permission under Section 3 of the U.P. Act No. III of 1947, rather than to have proceeded with the suit, in view of the provisions of the savings cl. (rr) of sub-section (2) of Section 43 of the U.P. Act No. XIII of 1972. 7. By sub-section (1) of Section 43 of the U.P. Act No. XIII of 1972, the U.P. Act No. III of 1947 was repealed with effect from 15-7-1972, which was the date on which the U.P. Act No. XIII of 1972 came into force. Sub-section (2) of Section 43 contain 22 clauses. Suits for eviction from a building, to which the provisions of the U.P. Act No. III of 1947 applied and the provisions of the U.P. Act No. XIII of 1972 Act, are governed by the savings clauses (h), (r) or (s) of Section 43 (2) of the Act. Clause (r) refers particularly to a suit for eviction of a tenant instituted with the permission referred to in Sec. 3 of the old Act. As originally enacted it reads as follows:- "(r) any suit for the eviction of tenant instituted with the permission referred, to in Section 3 of the old Act or any proceeding arising out of such suit, pending immediately before the commencement of this Act, may be continued and concluded as if this Act had not been passed, and likewise, any suit for eviction with such permission referred to in clause (i), clause (1), clause (m) or clause (o) may be instituted after the commencement of this Act." The argument was that the suit based on the permission granted under Section 3 of the U.P. Act No. III of 1947 was a suit pending on 15-7-1972 the date of enforcement of the U.P. Act No. XIII of 1972 and under clause (r) of Section 43 (2), as it then stood, the suit would not have been affected by the repeal or reenactment of the U.P. Act No. III of 1947 by the U. P. Act No. XIII of 1972 for the provision of clause (r) at that time was that it could be continued and concluded as if this Act, i.e., the U.P. Act No. XIII of 1972, had not been passed. But, the U.P. Act No. III of 1947 having expired on 30-9-1972, the suit could not be proceeded with any further after that date. 8. It is necessary to trace the legislative history of the amendments and the introduction of clause (rr) in Section 43 (2) of the U.P. Act No. XIII of 1972 before dealing with the argument. By the U.P. Civil Laws Amendment Act 1972, which came into force on 20-9-1972, the words "and likewise, any suit for eviction with such permission referred to in clause (i), clause (1), clause (m) or clause (o) may be instituted after the commencement of this Act" were deleted from clause (r) and the following clause (rr) was introduced:- "(rr) where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in subsection (1) or sub-section (2) of Section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this, sub-section, after the commencement of this Act, and a suit for the eviction of the tenant has not been instituted, the landlord may apply to the prescribed authority for his eviction under Section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid and such order 'shall be final and shall not be open to appeal under Section 22'" The effect was that after amendment made by the U.P. Civil Laws Amendment Act, 1972, of the said clause (r) and the introduction of clause (rr), a fresh suit could not be filed on the basis of a permission granted under Section 3 of the U.P. Act No. III of 1947. This position was further clarified by the amendments made by the President's Act No. 19 of 1973 and the U.P. Act No. 30 of 1974 which were retrospectively enforced with effect from 20-9-1972, i.e., the date of the enforcement of the U.P. Civil Laws Amendment Act. 1972, by the substitution of the words "the commencement of the U.P. Civil Laws Amendment Act, 1972 (U.P. Act No. 37 of 1972)" in place of the words "the commencement of this Act," i.e., the U.P. Act. No. XIII of 1972 in clause (r). 1972, by the substitution of the words "the commencement of the U.P. Civil Laws Amendment Act, 1972 (U.P. Act No. 37 of 1972)" in place of the words "the commencement of this Act," i.e., the U.P. Act. No. XIII of 1972 in clause (r). Clauses (r) and (rr) were further amended by the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act 1976. In clause (r) the words "as if this Act had not been passed" were substituted by the words "in accordance with the old Act which shall for that purpose be deemed to continue to be in force"; and in clause (rr) the words "whether or not a suit for eviction of the tenant has been instituted" were inserted in the middle, besides the addition of two provisos thereto. The two clauses so amended, but without the provisos run as follows:- " (r) any suit for the eviction of a tenant instituted with the permission referred to in Sec. 3 of the old Act or any proceeding arising out of such suit, pending immediately before the commencement of the U.P. Civil Laws Amendment Act 1972 (U.P. Act 37 of 1972) may be continued and concluded in accordance with the old Act which shall, for that purpose, be deemed to continue to be in force." "(rr) Where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in subsection (1) or sub-section (2) of Sec. 21, and has become final either before the commencement of this Act, or in accordance with the provisions of this sub-section, after the commencement of this Act, whether or not a suit for the eviction of the tenant has been instituted, the landlord may apply to the prescribed authority for his eviction under Section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the prescribed authority to satisfy afresh as to the existence of any ground as aforesaid, and such order, shall be final and shall not be open to appeal under Section 22." 9. The amendments made by the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, were fully retrospective. The amendments made by the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, were fully retrospective. The result is that both the clauses (r) and (rr) as they now stand have to be read as if they stood in their present form on 20-9-1976, when clause (rr) was introduced and the words "in accordance with the old Act which shall, for that purpose, be deemed to continue to be in force" have to be read in clause (r) with effect from the date of the enforcement of the U.P. Act No. XIII of 1972, i.e., 15-7-1972. 10. I do not think that the words "in accordance with the old Act which shall, for that purpose, be deemed to continue to be in force" made any real difference after 30-9-1972, for the U.P. Act No. III of 1947 was by these words deemed to continue to be in force even after the date of its 15-7-1972 repeal. But, sub-section (4) of Section 1 of the U.P. Act No. III of 1947 was not amended. The result was that although U.P. Act No. III of 1947 was deemed to continue in force by the savings clause (r) for the purposes of a suit pending on 15-7-1972, it expired on 30-9-1972. It was deemed to continue to be in force as it was, and, therefore, must be deemed to have expired on 30-9-1972 notwithstanding the words of clause (r) which say that it shall for the purposes of a suit for eviction of a tenant instituted with the permission, referred to in S. 3 of that Act, "be deemed to continue to be in force," the question thus is whether the suit filed with the permission of the District Magistrate, under Section 3 of the U.P. Act No. III of 1947, ceased to become maintainable on the expiry of that Act on 30-9-1972. Apart from the application of Section 6 of the U.P. General Clauses Act even to temporary Act, by the introduction of Section 6-B, on their expiry, which provides that the provisions of Sections 6 and 24 shall apply to them as they apply to the repeal of an enactment by an Uttar Pradesh Act. Apart from the application of Section 6 of the U.P. General Clauses Act even to temporary Act, by the introduction of Section 6-B, on their expiry, which provides that the provisions of Sections 6 and 24 shall apply to them as they apply to the repeal of an enactment by an Uttar Pradesh Act. Sub-section (4) of Section 1 of the U.P. Act No. III of 1947 itself provided that the provisions of Session 6 of the U.P. General Clauses Act shall apply, upon its expiry, except as respects things done or omitted to be done as if it had been repealed by an Uttar Pradesh Act. Even if the permission obtained under Section 3 of the U.P. Act No. III of 1947 was a part of the cause of action of the suit, instituted after obtaining such permission; such permission, under Sec. 6 of the U.P. General Clauses Act, is sufficient to sustain the further maintainability of the suit. It is, however, unnecessary to dwell at greater length, on this aspect of the matter, inasmuch as a permission under Section 3 of the U.P. Act No. III of 1947 only removed the bar to a suit for eviction of a tenant. The cause of action for the suit was independent of the permission. Once the permission was granted, the bar of Section 3 stood removed, and a suit instituted after obtaining the permission could be continued under the general law without any further restriction imposed by the U.P. Act No. III of 1947. The expiry of that Act could not make the plaintiff's position worse and there is nothing in the U.P. Act No. XIII of 1972 or in the savings clause of sub-section (2) of Section 43 of the Act to obstruct its further progress. The applicability of clause (rr) of Section 43 (2) of the Act must be confined to those cases where a suit, on the basis of the permission under Section 3 of the U.P. Act No. III of 1947, had not been instituted up to 20-9-1972, which was the date of the commencement of the U.P. Civil Laws Amendment Act, 1972; for such suits were, on the express language of clause (r), governed by it and could not, therefore, be said to be affected by anything said in clause (rr). Indeed, this suit having been filed before the U.P. Act No. XIII of 1972 came into force and the provisions of that Act being prospective, clause (r) of Section 43 (2) only makes the legal position explicit. The suit would have continued unhampered by anything in the U.P. Act No. XIII of 1972 even if clause (r) of Section 43 (2) of the Act had not been there. 11. On the merits of the judgment, under appeal, the finding that the plaintiff alone was the landlord is impeccable inasmuch as it is based on the defendant's own admissions. The finding does not suffer from any error, much less any error of law, and cannot be said to give rise to any such question as could be termed a substantial question of law. The point, that the defendant-appellant was not afforded a reasonable opportunity of being heard by the Commissioner, is also devoid of any substance. The Commissioner's, order was no doubt passed ex parte, but there is nothing to show, that the notice of the date, fixed in the revision, was not duly served on the defendant-appellant who was the opposite party before the Commissioner. The Commissioner has recorded in the order that the opposite party was absent which normally means, absent in spite of due service of notice of the date of hearing. 12. In the result, the appeal fails and is dismissed with costs.