Rajendra Nath Sharma v. Prescribed Authority — 1996 DIGILAW 1320 (ALL)

Judgment : S. R. Singh, J. 1. Present petition plods it way to this Court out of the suit instituted for eviction from the premises in dispute namely, the first floor of house No. 110/93 situate in Ram Krishna Nagar, Kanpur Nagar, comprising two rooms, kitchen, bathroom and latrine and recovery of arrears of rent, damages and mesne profits. 2. THE accommodation in question was tenanted by the petitioner on a monthly rent of Rs. 150/ -. THE petitioner was remiss in payment of rent since 9.6.1993 and as a result thereof, his tenancy came to be determined by means of notice dated 7.6.1983 and suit for the aforestated reliefs was instituted on 27.2.1984. THE petitioner candidly admitted the tenancy. He however, alleged that the rent of the accommodation was Rs. 757-and not Rs. 150/-as set out in the plaint and further that the building in question was constructed in the year 1972 and not in the year 1975 as alleged in the plaint and, therefore, it came within the purview of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act 13 of 1972. Invalidity of notice was also pleaded by the petitioner in his written statement on the ground that the boundary of the accommodation was not delineated in the notice. The suit was decreed on 19.12.1988. The learned Judge Small Causes Court deduced that the building in question was constructed in the year 1975 and that the suit was filed within the 'exemption' period of 10 years. It was also held that the monthly rent was Rs. 150/-and that the defendant was not entitled to the benefits of section 39 of the U. P. Act 13 of 1972 which Act was held not applicable to the building in question. The notice under section 106 of the Transfer of Property Act was also adjudge to be valid. 3. THE defendant preferred revision under section 25 of the Provincial Small Cause Court Act. THE revisional court, while lending affirmance to the findings recorded by the trial court on other issues, set aside the judgment and order dated 19.12.1988 and remitted the matter to the trial court for consideration of two issues (i) whether the defendant petitioner was entitled to the benefits of section 20 (4) of the U. P. Act 13 of 1972; and (ii) Whether the notice was invalid. 4. 4. THE trial court, after reconsideration, maintained that since U. P. Act 13 of 1972 itself was not applicable, the defendant petitioner would not derive benefit of section 20 (4) of the said Act and further that the notice under section 106 of the Transfer of Property Act did not suffer from the taint of any infirmity in that there was no ambiguity in respect of tenanted accommodation and further that the fenancy of the petitioner in its entirety was determined and it was not a case of determination in tenancy in respect of only a part of tenanted accommodation. On these findings, the trial court again decreed the suit on 28.7.95 which judgment has been countenanced in approboation by the 4th Addl. District Judge, Kanpur, who dismissed the revision vide judgment dated 9.10.96. Sri S. P. Mehrotra, counsel appearing for the petitioner vehemently urged that on expiration of the exemption period of 10 years during the pendency of the suit, the building would fall within the purview of U. P. Act 13 of 1972 and therefore, Section 20 (4) of the said Act would be attracted. Sri Yasharth, learned counsel appearing for the respondent-landlords urged that the rights of the parties would be governed by the law in force on the date of institution of the suit and not by the provisions of the U. P. Act 13 of 1972, which became applicable to the building in question, on expiration of exemption period of 10 years during the pendency of the suit. 5. I have meticulously considered the submissions aforestated. The question is no longer res Integra so far as this Court is concerned. It has been held by a Division Bench of this High Court, in Ram Prakash v. IIIrd Addl. District Judge, Agra and others, 1994 (2) All. Rent Cases 48, that if the Act was not applicable at the date of institution of the suit, none of the provisions of the Act including section 20 (4) would be applicable merely because the guilding comes within the purview of the Act upon expiration of exemption period of 10 years during the pendency of the suit. In Ramesh Chand v. III Addl. District Judge, 1992 ALJ 392, a Three Judge Bench of the Supreme Court has expounded the proposition "that the suit as instituted had to be disposed of without reference to the Act. In Ramesh Chand v. III Addl. District Judge, 1992 ALJ 392, a Three Judge Bench of the Supreme Court has expounded the proposition "that the suit as instituted had to be disposed of without reference to the Act. ' An earlier decision in Nand Kishore Marwah v. Samundri Devi, AIR 1987 SC 2284 holding "that the law applicable on the date of the institution on the suit alone governs the suit and the mere fact that the statutory period of 10 years expires during the pendency of the suit/appeal/revision, the Act does not become applicable" was followed. 6. SURESH Chand v. Ghulam Chisti, 1990 (1) All. Rent Case 233, reliance on which was placed by Sri S. P. Mehrotra, counsel appearing for the petitioner, is a benchmark case on the point that the benefits of sections 39 and 40 of the Act could be extended to the tenant only if the suit, appeal or revision application was pending at the date of commencement of the Act i. e. 15th July, 1972 and the tenant must have deposited the arrears of rent and damages together with interest and full cost in the court within one month from the date of such commencement. The Supreme Court decision in Raghunath Dayal v. District Judge Etah 1991 (1) ARC 376, credence on which was also placed by Sri S. P. Mehrotra to shore up his contention that Section 20 (4) of the Act would apply if the building comes within the purview of the Act during the pendency of the suit, is a decision rendered by a Two Judge Bench of the Supreme Court and the observation "we arc of the view that S. 39 is not the relevant provision but it is Section 20 (4) which is relevant" made therein cannot be given precedence over the proposition laid down by the Three-Judge Bench in Ramesh Chand v. 3rd Addl. D. J. 1992 ALJ 392 (supra), which proposition is in tune with the general rule or common law " that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events "-Dixon CJ of the High Court of Australia (See Justice G. P. Singh on Principles of Statutory Interpretation 5th Edn p. 297 ). Bar against institution of suit as engrafted in Sec. 20 (1) of the Act has admittedly no application as the Act was inapplicable to the building in question at the threshold of the institution of suit and Sec. 20 (4) in terms cannot be applied without adding words therein for the reason that not only the suit was instituted during the recess period but the first date of hearing also came to be fixed in this case during the recess period. And, in view of the Division Bench decision of this High Court and that of the Three-Judge Bench of the Supreme Court referred to above, I consider it unnecessary-to examine the question which was also not raised at the bar during the course of argument whether Sec. 20 (4) engrafts a law regulating the manner in which the given rights and liabilities fixed by reference to the past facts, matters or event" are to be enforced or their enjoyment to be secured by Judicial remedy'1 a question, decision of which may be necessary in order to decide if sub-section (4) is not within the application of the general rule against retrospectivity. In Atnui Ram Mittal v. Ishawar Singh Punia 1988 Suppl. (2) SCR 529, the shop in question therein, came within the purview of the Haryana Urban (Control or Rent and Eviction) Act, 1973, on expiration of the period of 10 year's during the pendency or the litigation. The question raised was whether the suit was maintainable in civil court. In Atnui Ram Mittal v. Ishawar Singh Punia 1988 Suppl. (2) SCR 529, the shop in question therein, came within the purview of the Haryana Urban (Control or Rent and Eviction) Act, 1973, on expiration of the period of 10 year's during the pendency or the litigation. The question raised was whether the suit was maintainable in civil court. The Supreme Court as discussed in Parripati Chansrasekharrao and sons v. Alapati Jalaiah, JT 1995 (4) SC187 at p. 194, held that" notwithstanding coming into operation of the protection and in the absence of the provisiors to the contrary, the proceedings already commenced on the basis of the vested right could not be defeated by mere passage or time consumed by the said proceedings" and therefore, the right which had accrued to the landlord being a vested right could not be denied to him by the efflux of time. It may be observed that the petitioner could have avoided the decree for eviction by doing al 1 that a tenant is required to do under Order XV Rule 5, CPC but he failed to do so. 7. SRI S. P. Mehrotra, then switched over to assail the impugned orders on the ground that the notice under section 106 of the Transfer of Property Act was invalid in that it was only in respect of a part of the tenanted accommodation. The submission made by the learned counsel for the petitioner cannot be countenanced in view of categorical finding recorded by the courts below that the tenancy in respect of the entire tenanted accommodation was determined by the landlord. It was not the case of the petitioner that any portion on the 2nd floor of the building was in his tenancy and admission to that effect finds manifestation in para 1 of the writ petition where he claims himself to be the tenant" of the from portion of the first floor of the premises No. 110/93, P. K. Nagar Kanpur. " The trial court has recorded a categorical finding that the second floor of the building is non-existent and that according to his own admission, the petitioner is not the tenant on the 2nd floor of the building. The confusion stemming from certain amendments effected in the pleading, has been fully expatiated upon by the trial court in its judgment and it needs no further elucidation. The confusion stemming from certain amendments effected in the pleading, has been fully expatiated upon by the trial court in its judgment and it needs no further elucidation. The Supreme Court decision in Chiman Lal v. Misri Lal ARC 1985 (1) 90, holding that notice would be invalid if accommodation in dispute mentioned in the notice is found short of the actual extent of the tenanted accommodation, has no application to the facts of the present case. 8. THE last submission advanced by the learned counsel for the petitioner is that the first notice was waived in view of subsequent notice dated 22-12-1994 during the pendency of the case. THE submission made by the learned Counsel for the petitioner does not commend itself for acceptance. THE courts below have rightly deduced that the statement regarding determination of tenancy by second notice dated 22-12-94 was as a result of clerical error which was rectified by third notice dated 16.1.95. On the facts found by the courts below, the doctrine of waiver of notice is not attracted. No other point was pressed into service by the learned counsel. 9. IN the result, the petition fails and is dismissed in limine. Petition dismissed. S. R. Singh, J.- After the judgment was delivered Sri S. P. Mehrotra, counsel for the petitioner requested that some time may be given to the petitioner to vacate the premises. Upon consideration of the facts and circumstances of the case the petitioner is hereby given three months' time to vacate the premises and hand over its vacant possession to the respondent landlord. This will, of course, be subject to the condition that the petitioner shall give usual undertaking before the Judge, Small Causes Court, Kanpur Nagar within a month from today.