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2015 DIGILAW 523 (RAJ)

Gopal v. Smt. Chanda Devi

2015-02-26

NISHA GUPTA

body2015
JUDGMENT 1. - This first appeal under Section 96 CPC has been filed against the judgment and decree dated 22.3.2011 passed by Additional District Judge (Fast Track) No.1, Beawar in Civil Suit No. 80/2009 (1/09) by which a decree of eviction has been passed against the appellant. 2. A number of objections have been raised in the memo of appeal thereafter today an application has been filed by the appellant to bring subsequent events on record and contention of the appellant is that the Rajasthan Rent Control Act, 2001 (hereinafter referred to as the Act of 2001) has come into force in Beawar w.e.f. 11.7.2014. The disputed premises is situated in town Beawar and by virtue of Section 9 of the said Act, no order of eviction can be passed against a tenant unless the grounds mentioned under the Act of 2001 are proved. The decree of eviction has been passed only under the provisions of the Transfer of Property Act on the basis of termination of lease by notice under Section 106 of the Transfer of Property Act. The subsequent events goes to the root of the jurisdiction and hence the decree could not be sustained and the appeal be allowed.Per contra, the contention of the respondents is that once a suit has been culminated into decree any subsequent change in law cannot snatch the right of the respondents. 3. Heard the learned counsel for the parties and perused the judgment and decree under appeal as well as the original record of the case. 4. It is not in dispute that vide notification w.e.f. 11.7.2014, the Act of 2001 has been made applicable in Beawar town where the suit property is situated and counsel for the appellant has relied upon Lakshmi Narayan Guin & ors. 4. It is not in dispute that vide notification w.e.f. 11.7.2014, the Act of 2001 has been made applicable in Beawar town where the suit property is situated and counsel for the appellant has relied upon Lakshmi Narayan Guin & ors. v. Niranjan Modak, AIR CJ 1985 (1) 152 where same controversy has arisen before the Apex Court and West Bengal Premises Tenancy Act, 1956 has been extended to Memari in which disputed property was situated and matter was pending appeal and court as held as under: "It is well settled that when a trial Court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit, and when the appellate decree affirms, modifies or reverses the decree on the merits, the trial Court decree is said in law to merge in the appellate decree, and it is the appellate decree which rules. The object of Sub-section (1) of Section 13 is to protect the possession of the tenant, subject to the exceptions specified in the Sub-section, and that protection is ensured if we construe the Sub-section to mean that, subject to those exceptions, no effective or operative order or decree can be made by the Court in a landlord's suit for possession against a tenant. To our mind, therefore, Sub-section (1) of Section 13 of the Act can be invoked by a tenant during the pendency of an appeal against a trial Court decree." 5. Hence in view of the settled proposition of law that once the Act of 2001 has become effective in the area in which the disputed property is situated, the decree for eviction could not be passed unless the grounds mentioned in Section 9 of the Act of 2001 has not been fulfilled. The contention raised by the respondent that during pendency of the appeal if law changes it would not affect the decree has also been answered in Lakshmi Narayan Guin (supra) and it has been held: "The next point is whether Sub-section (1) of Section 13 can be invoked where the suit was instituted before the Act came into force. In the instant case, the suit was instituted long before the Act was extended to Memari. Sub-section (1) of Section 13 directs the Court not to make any order or decree for possession subject, of course, to the statutory exceptions. In the instant case, the suit was instituted long before the Act was extended to Memari. Sub-section (1) of Section 13 directs the Court not to make any order or decree for possession subject, of course, to the statutory exceptions. The legislative command in effect deprives the Court of its unqualified jurisdiction to make such order or decree. It is true that when the suit was instituted the Court possessed such jurisdiction and could pass a decree for possession. But it was divested of that jurisdiction when the Act was brought into force. The language of the Sub-section makes that abundantly clear, and regard must be had to its object." 6. In view of the above, when the law has changed during the pendency of the appeal it has to be taken into account and now the Act of 2001 will govern the rights of the parties and decree passed on the basis of termination of lease under Section 106 of the Transfer of Property Act has become nullity, hence in view of the above subsequent events the decree under appeal passed by the court below could not be sustained and liable to be set aside. 7. The respondent has also submitted on merits but as the decree has become nullity, consideration of merits of the case is futile exercise hence in view of the above, the appeal is allowed and judgment and decree dated 22.3.2011 passed by Additional District Judge (Fast Track) No.1, Beawar in Civil Suit No. 80/2009 (1/09) is quashed and set aside. The application (20001/2011) pending for mesne profits also stands disposed of.Appeal allowed. *******