VISHWA RATTAN v. RAM KRISHAN — 1989 DIGILAW 185 (HP)

JUDGMENT P. C. Balakrishna Menon, C J.—The tenant who has suffered defeat at the hands of the Rent Controller and the Appellate Authority has come up in revision before this Court under section 15 (5) of the East Punjab Urban Rent Restriction Act, 1949 (the Punjab Act for short) read with section 21 (5) of the Himachal Pradesh Urban Rent Control Act, 1971. 2. The dispute relates to a shop-building located at the Mall in the city of Simla. The building was owned by one Roshan Lai Sood and was in occupation of the tenant Chint Ram on a monthly rent of Rs. 169 Roshan Lai Sood sold the building to the present landlords M/s. Ram Krishan and Sons, a firm registered under the Indian Partnership Act. The sale-deed authorised the vendee to recover the arrears of rent from the tenant from 1st January 1969. The tenant Chint Ram was running a Photo Studio in the demised premises in partnership with his sons under the firm name M/s. Photo Studios. There were disputes between the landlords and the tenant Chint Ram as to whether the demise was in favour of the firm Photo Studios or personally to Chint Ram. M/s. Photo Studios through one of its partners Vijay Sood on 12-5-1970 instituted Civil Suit No. 55/70 on the file of the Senior Sub-Judge Simla for a declaration that the firm M/s. Photo Studios is the tenant of the demised premises. While that suit was pending the landlords on 2-6-1970 filed the present petition for eviction against Chint Ram, under section 13 of the Punjab Act on the ground that the tenant was in arrears of rent from 1st of January 1969 onwards. Advocate Sh. Chandu Pal Sood, appearing for the tenant Chint Ram at the first hearing of the petition on 2-9-70 tendered a sum of Rs. 3,500 by way of arrears of rent, interest and costs on behalf of M/s. Photo Studios as though the said firm is the tenant of the demised premises Since the tender was not on behalf of the tenant Chint Ram the landlords refused to accept the same and the case went up for trial before the Rent Controller. 3,500 by way of arrears of rent, interest and costs on behalf of M/s. Photo Studios as though the said firm is the tenant of the demised premises Since the tender was not on behalf of the tenant Chint Ram the landlords refused to accept the same and the case went up for trial before the Rent Controller. The landlords had also filed Civil Suit No. 145 of 1971 for recovery of arrears of rent from 1st January 1969 to 30th April 1971 and another suit No. 269 of 1971 for the subsequent arrears of rent against Chint Ram. In both the suits, Chint Ram had raised the contention that he is not the tenant and the demise of the premises was in favour of the firm M/s. Photo Studios. The three suits, Civil Suit Nos. 55/70, 145/71 and 269/71 were consolidated and by a common judgment Ex. P-3 dated 2-4-1979 the Senior Sub-Judge held that the demise of the premises was in favour of Chint Ram and not to the partnership firm M/s Photo Studios. On these findings, Civil Suit No. 55 of 1970 filed by M/s. Photo Studios was dismissed and the other two suits for arrears of rent were decreed. Meanwhile, Chint Ram died on 11-7-1973 pending these proceedings. His widow Shakuntla was brought on record in the rent control proceedings by an application made by the landlords in that behalf. His sons who were partners of the firm were also brought on record on their application as legal representatives of Chint Ram. 3. The sons of Chint Ram had, after the decree for arrears of rent passed by the Subordinate Court, deposited the entire arrears in the Court of the Rent Controller. The Rent Controller on 4th November, 1981 passed an order for eviction of the tenant on his findings that the rent was in arrears from 1st January 1969 onwards and it was not paid or tendered at the first hearing of the petition for eviction. It was held that the tender made by Advocate Sh. Chandu Lal Sood was not proper as the tender was not on behalf of the tenant Chint Ram but on behalf of the firm M/s. Photo Studios whose suit for declaration of its tenancy had been dismissed by the Civil Court. The decision of the Rent Controller was affirmed in appeal by the appellate authority. Chandu Lal Sood was not proper as the tender was not on behalf of the tenant Chint Ram but on behalf of the firm M/s. Photo Studios whose suit for declaration of its tenancy had been dismissed by the Civil Court. The decision of the Rent Controller was affirmed in appeal by the appellate authority. That authority has found that the tender of arrears of rent made on behalf of M/s. Photo Studios was not a proper tender and hence the tenant is not entitled to the benefits of proviso (2) to section 13 (2) (i) of the Punjab Act. No other question is seen raised before the Rent Controller and the appellate authority. 4. The first question urged by the learned Counsel for the tenant Shri Devinder Gupta, relates to the validity of the tender made at the first hearing of the petition for eviction. Section 13 of the Punjab Act enumerates the grounds for eviction of a tenant in possession of a building or rented land. A? per clause (i) of sub-section (2) ; failure on the part of the tenant to pay or tender the rent due within 15 days after the expiry of the time fixed in the agreement of tenancy or by the last date of the month next following, the landlord is entitled to apply to the Rent Controller for eviction of the tenant. The proviso to clause (i) enables the tenant to pay or tender the arrears of rent and interest at six percent per annum on such arrears together with the cost of the application at the first hearing of the petition for eviction and on such payment or tender the tenant is deemed to have duly paid or tendered the rent within the time, mentioned under sub-section (1) The tender should necessarily be un-conditional. It should also be by the tenant. In the present case the tender made by the tenants Counsel was not on behalf of the tenant himself but on behalf of Photo Studios whose suit for declaration of their tenancy right in the premises was pending before the Civil Court. An acceptance of the tender at that stage would necessarily mean that the landlords were accepting M/s. Photo Studios as the tenant of the demised premises. An acceptance of the tender at that stage would necessarily mean that the landlords were accepting M/s. Photo Studios as the tenant of the demised premises. The tender in those circumstances was rightly held by the courts below as not a proper tender for the purpose of the proviso to clause (i) of sub-section (2) of section 13 of the Punjab Act. 5. In a case where the arrears of rent were tendered by the tenant alongwith three other persons who were strangers, the Punjab High Court in Ram Go pal and others v. Om Prakash and others, (Vol LXV) 1963-Punjab Law Reporter, 1112, held that the tender was not proper. That was also a case arising out of the Punjab Act and the learned District Judge, the appellate authority, had taken the view that there was no valid or proper tender. Affirming the said view, it was held: "On these facts, the learned District Judge as appellate authority has taken the view that there was no proper and valid tender and for this he has relied, upon a decision of this Court in Ram Nath v. Girdhari Lai, (1959) 61 PLR 77. The same view is to be found enunciated in a decision by Khosla J. (as he then was) in Smt Naurati v. Hans Raj, C.R. No. 199 of 1957 (decided on 10th March 1958), and also in another decision of this Court in Ram Nath v. Firm Badri Dass Radhelal, AIR 1951 Punj 435. Mr. Mital, learned Counsel for the petitioners, however, tries to distinguish these authorities on the ground that in all these cases the tender was made by persons other than the tenant, whereas in the present case one of the tenderer is the tenant himself and the mere fact that he has joined other parsons, who are strangers with him would make all the difference. The tender must be deemed to be by the tenant and his associates should be ignored. I am however, unable to agree with this contention. It is not a case where other persons were making the payment on behalf of the tenant. The tender must be deemed to be by the tenant and his associates should be ignored. I am however, unable to agree with this contention. It is not a case where other persons were making the payment on behalf of the tenant. The tenant along with the other three made the payment on their own account and that is absolutely clear from the application made to the Court, which has already been referred to above, and I am therefore, of the view that the principle enunciated in all these decisions fully covers the present case. I would, therefore, hold in agreement with the appellate authority that there was in law no valid tender of the arrears of rent at the first hearing, and that being so, there was no alternative but to allow the petition for eviction of the tenant." 6. For the aforesaid reason, I overrule the contention that the tenant is entitled to the benefits of the proviso to clause (i) of sub-section (2) of section 13 of the Punjab Act. 7. The learned Counsel Shri Devinder Gupta, has raised another point in this revision that the tenant having paid the entire arrears of rent interest and costs within thirty days after the order for eviction passed by the Rent Controller is entitled to the benefits of the second proviso to clause (i) of sub-section (2) of section 13 of the Himachal Pradesh Urban Rent Control Act, 1971, (hereinafter referred to as 1971 Act) and also to the benefits of the third proviso to section 14 (2) (i) of 1987 Act. Both these aforesaid provisos gave a further protection to the tenant against eviction if he pays the arrears of rent interest and costs within a period of 30 days after the date of the order of the Rent Controller for his eviction. The learned Counsel Shri Chhabil Dass, appearing for the landlords has strongly urged that neither of the latter enactments is applicable to the present case and the liability incurred by the tenant for the reason of his failure to pay or tender the arrears of rent, interest and costs at the first hearing of the petition for eviction filed under section 13 of the Punjab Act is not in any way obliterated by the latter enactments. It is also contended that for the reason of the failure of the tenant to pay or tender the arrears of rent, interest and costs a right is accrued in favour of the landlord and such rights accrued are clearly preserved under the latter enactments. 8. The 1971 Act came into force on 17th November 1971. The said Act by section 28 repealed the Punjab Act in so far as it applied to such areas in the State of Himachal Pradesh which before the 1st of November 1966 formed part of Punjab. Sub-section (2), however, contained a saving clause in regard to matters pending at the commencement of the 1971 Act. The relevant part of sub-section (2) of section 28 is extracted below: "(2) Notwithstanding such repeal, all suits and other proceedings under the said Acts pending, at the commencement of this Act, before any court or other authority shall be continued and disposed of in accordance with the provisions of the said Acts, as if the said Acts had continued in force and this Act had not been passed : Provided that section 4 shall be applicable to all pending suits and proceedings for the fixation of fair rent or eviction against widows, minor sons or unmarried daughters of any tenant and all such suits and proceedings shall be disposed of in accordance with the provisions of this Act: Provided further that the provisions for appeal under the said Acts shall continue in force in respect of suits and proceedings disposed of thereunder." 9. But for the proviso referred to above, the petition for eviction instituted against Chint Ram under the Punjab Act is to be continued and disposed of in accordance with the provisions of the said Act as if the 1971 Act had not been passed. Section 4 of the 1971 Act gives a limited protection against eviction in favour of widows, minor children and unmarried daughters of a deceased tenant. As per sub-section (1) of section 4; it is lawful for a widow of a tenant to continue in possession of the building or rented land as a tenant of the landlord till she dies or re-marries on the same terms and conditions on which the tenancy was held by her late husband. As per sub-section (1) of section 4; it is lawful for a widow of a tenant to continue in possession of the building or rented land as a tenant of the landlord till she dies or re-marries on the same terms and conditions on which the tenancy was held by her late husband. The proviso can, however, have application only in regard to proceedings pending against the widow on the date of commencement of the 1971 Act. The proviso has reference to sub-section (2) of section 28 of the Act and sub-section (2) applies only to a suit or other proceedings under the repealed Act pending at the commencement of the Repealing Act that came into force on 17-11-1971. In the present case, there was no proceedings pending against the widow of Chint Ram on the date on which the 1971 Act came into force- Chint Ram died on 11-7-1973 long after the commencement of the Act and his widow was impleaded as his legal representative in these proceedings much latter. His sons also, as earlier stated, came on record as his legal representatives on an application made by them. In these circumstances the proviso to sub-section (2) of section 28 of 1971 Act has no application to the present case and the liability for eviction incurred by the tenant for the reason of his failure to pay or tender the arrears of rent, interest and costs at the first hearing of the petition for eviction continued under the Repealing Act of 1971 which does not effect the vested right of the landlords to obtain an order for eviction on the ground of arrears of rent. 10. 10. It is, however, clear that the proceedings should now be governed by the provisions of the 1987 Act which has come into force during the pendency of this revision petition and the tenant is entitled to the benefits of the third proviso to section 14 (2) (1) of the said Act as the tenant had in the present case paid the entire arrears of rent, interest and costs within a period of thirty days after the order for eviction passed by the Rent Controller Shri Chhabil Dass, on behalf of the landlords has strongly urged that the 1987 Act does not in any way affect the right accrued to the landlords to obtain eviction for the reason of the failure of the tenant to pay or tender the arrears of rent, interest and costs at the first hearing of the petition for eviction filed under the Punjab Act. Sub-section (1) of section 35 of the 1987 Act repeals the 1971 Act and as per sub-section (2), all suits, appeals and other proceedings, including execution proceedings pending are to be disposed of in accordance with the 1987 Act. Section 34 of the 1987 Act reads:— "34. Repeal and Savings.—(1) The Himachal Pradesh Urban Rent Control Act, 1971, is hereby repealed. (2) Notwithstanding such repeal, but subject to the provisions contained in sub-section (3) all suits, appeals and other proceedings, including execution proceedings, under the said Act pending, before any Court or appellate or revision all authority, on the day shall be disposed of in accordance with the provisions of this Act, as if the provisions contained in this Act were at the relevant time, in force. (3) Nothing contained herein shall authorise any court or authority or tribunal to reopen any suit or proceedings in which the order passed have already become final and executed." 11. According to the learned Counsel for the landlords only such proceedings that would fall under the repealed Act of 1971 are to be disposed of in accordance with the 1987 Act. The present case, according to him is one falling under the Punjab Act as can be seen from section 28 (2) of the 1971 Act and the petition for eviction pending at the commencement of the 1987 Act was not a proceeding under the Repealed Act of 1971. The present case, according to him is one falling under the Punjab Act as can be seen from section 28 (2) of the 1971 Act and the petition for eviction pending at the commencement of the 1987 Act was not a proceeding under the Repealed Act of 1971. The learned Counsel contends that as per section 4 of the Himachal Pradesh General Clauses Act, 1969, corresponding to section 6 of the Central Act the repeal of the 1971 Act does not affect the previous operation of the said Act or anything duly done or suffered thereunder nor does it affect any right, privilege, obligation or liability acquired or accrued under the said Act. Reliance is placed on the following passage in G. P. Singhs Principles of Statutory Interpretation, 3rd Edition, at page 450: "The effect of clauses (c) to (e) of section 6 General Clauses Act is, speaking briefly, to prevent the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during its operation and permit continuance of institution of any legal proceedings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities". 12. I do not see any substance in these contentions raised by the learned Counsel for the landlords. The Punjab Act was repealed by the 1971 Act and the repealing Act was also repealed by the 1987 Act. By the repeal of the repealing Act, the original Act is not revived is clear from section 6 of the Himachal Pradesh General Clauses Act corresponding to section 7 of the Central Act. By the repeal of the repealing Act the original Act repealed will not be revived unless the Act that repealed the repealing Act expressly states so. In Ameer-un-Nissa Begum and others v. Mahboob Begum and others, AIR 1955 SC 352, it is stated at p. 362: "Under the English Common Law when a repealing enactment was repealed by another statute, the repeal of the second Act revived the former Act (ab initio*. But this rule does not apply to repealing Acts passed since 1850 and now if an Act repealing a former Act is itself repealed, the last repeal does not revive the Act before repealed unless words are added reviving it: vide Maxwells Interpretation of Statutes, p. 402 (10th Edition)." 13. But this rule does not apply to repealing Acts passed since 1850 and now if an Act repealing a former Act is itself repealed, the last repeal does not revive the Act before repealed unless words are added reviving it: vide Maxwells Interpretation of Statutes, p. 402 (10th Edition)." 13. I see no merit also in the contention that for the reason of section 28 (2) of the 1971 Act, the Punjab Act should be deemed not to have been repealed. 14. That saving provision itself is contained in the repealed Act of 1971 and on its repeal there cannot be any question of revival of the Punjab Act. Even assuming, for arguments sake, that the Punjab Act should be deemed to be continuing in force, the 1987 Act providing for a further remedy to a tenant for deposit of arrears of rent, interest and costs within thirty days after the order of eviction passed by the Rent Controller will have over-riding effect over the Punjab Act. A new remedy conferred by the latter enactment will not be defeated even if the Punjab Act continues in operation. It is well established that when there is conflict between an earlier enactment and a latter one, the latter enactment would prevail over the earlier one. In Ajay Kumar Banerjee and others v. Union of India and others, AIR 1984 SC 1130, it is stated at page 1144; The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied: (i) The two are inconsistent with each other, (ii) There is some express reference in the later to the earlier enactment. If either of these two conditions is fulfilled, the later law, even though general, would prevail". 15. To the same effect is the later decision of the Supreme Court in Yogender Pal Singh and others v. Union of India and others, (1987) 1 SCC 631, wherein it is stated at page 641 : "It is well settled that when a competent authority makes a new law which is totally inconsistent with the earlier law and the two cannot stand together any longer it must be construed that the earlier law had been repealed by necessary implication by the later law". 16. It is also well settled that the subsequent legislation should be taken note of and applied in determining the rights of the parties. I, therefore, over-rule the contention of the learned Counsel for the landlords that the liability incurred by the tenant for the reason of non-payment of the arrears of rent, interest and costs at the first hearing of the petition as provided for in the proviso to section 13 (2) (1) of the Punjab Act continues inspite of the right conferred on the tenant by the 1987 Act to pay the arrears of rent, interest and costs within thirty days after the order of the Rent Controller for relief against eviction as provided for in the 3rd proviso to section 14 (2) (i) of the Act. 17. The decisions of the Supreme Court in H. Shiva Rao and another v. Cecilia Pereira and others, (1987) 1 SCC 238 and Kameshwar Singh Srivastava v. IV Additional District Judge Lucknow and others, (1986) 4 SCC 611, have clearly laid down the principle that the Rent Control Legislation being for the benefit of the tenants should be accorded a liberal interpretation to advance its objects. 18. In H. Shiv Rao case {supra) the landlord had obtained a decree for the eviction of a tenant at a time when the Karnataka Rent Control Act was not applicable to the area where the building was situated. The Act was extended to the said area. In execution the tenant raised an objection that the decree is not executable and the tenant can be evicted only in accordance with the provisions of the Rent Control Act. Accepting this contentions the Supreme Court observed: "It was held by this Court in Mani Suhrat Jain v. Raja Ram Vohra, (1980)2 SCR 141, dealing with section 2 (1) of East Punjab Urban Rent Restriction Act which defines tenant more or less in similar terms as the present Act that in view of such a definition of the tenant in Rent Control Act, the fact that by the time the Act came into force a decree or any other process extinguished the tenancy under the general law of real property does not terminate the status of a tenant so long as he continues in possession and his possession cannot be terminated except as provided for in the Rent Control Act. It is well settled legal principle that Rent Control legislations being beneficial to the tenant have to be given a liberal interpretation. While ordinarily substantive rights should not be held to be taken away except by express provision or clear implication, in the case of Rent Control Act, it being a beneficial legislation the provision which confers immunity to the tenant against eviction by the landlord though prospective in form operate to take away the right vested in the landlord by a decree of a court which has become final, unless there is express provision or clear implication to the contrary". 19. Sub-section (1) of section 21 of the Kamataka Rent Control Act contained a provision that "notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant". It was considering the said provision that the Supreme Court held that inspite of a decree for recovery of possession passed by the civil court prior to the extension of the Rent Control Act, the tenant cannot be evicted except in accordance with the provisions of the said Act. 20. In Kameshwar Singh Srivastava (supra) the Supreme Court observed at page 665: "The scheme and structure and the policy discernible from the provisions of the Act, as discussed, unmistakably aim at regulating the conditions of tenancy, rent and preventing eviction of tenants. The legislature has taken care to make special provisions protecting the interest of tenants from eviction while placing obligation on him to pay rent. The right of a tenant not to be evicted and the prohibition against a landlord from seeking eviction except upon specified grounds are well protected by the provisions of the Act and the tenant is afforded opportunity to pay arrears of rent even after filing of the suit, and in some cases even after a decree of eviction is passed. The special provisions as contained in sections 20 (4), 30, 39 and 40 indicate the legislative policy to safeguard the interest of a tenant, who deposits rent in accordance with those provisions. The court must strive to so interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretation of the provisions would defeat the legislative policy. The court must strive to so interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretation of the provisions would defeat the legislative policy. The courts must, therefore, keep the legislative policy in mind in applying the provisions of the Act to the facts of the case". 21. In this context it is also useful to bear in mind the rule in Heydon’s case, extracted in Cr. Baliram Wanton Hiray v. Mr. Justice B. Lentin and others, AIR 1988 SC 2267. At page 2281, the Supreme Court quotes the following passage from Craies on Statute Law, 6th Edn. p. 96, to explain the principles laid down in Heydons case (1584) 76 ER 637: "That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered : (1) What was the common law before the making of the Act, (2) What was the mischief and defect for which the common law did not provide, (3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, (4) The true reason of the remedy. And then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy according to the true intent of the maker of the Act pro bono publico" 22. The principle in Heydon’s case, it is held would apply also to cases where the mischief sought to be remedied is not merely in the common law but also in any prior legislation. 23 For the aforesaid reasons, I am clearly of the view that the right conferred on the tenant for relief against eviction as per the 3rd proviso to section 14 (2) (1) of the 1987 Act cannot be defeated by the extension of any legal fiction of continuance of the repealed Punjab Act I, therefore, set aside the orders passed by the Court below and dismiss the petition for eviction. The Civil Revision is allowed. The parties will suffer their own costs. Petition dismissed.