PETITIONER:
GYAN CHAND
Vs.
RESPONDENT:
K.B. LAL AND OTHERS
DATE OF JUDGMENT06/12/1976
BENCH:
GOSWAMI, P.K.
CHANDRACHUD, Y.V.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 858 1977 SCR (2) 324
1977 SCC (3) 317
ACT
Rajasthan Premises (Control oF Rent and Eviction) Act,
1950--S. 13A-Scope of.
Application for special leave under Article 136 of the
Constitution--If could be equated with ordinary right of
appeal.
Order 16 of Supreme Court Rules and Order 41 Civil
Procedure Code--Distinction.
HEADNOTE
Section 13A was introduced in Rajasthan Premises (Con-
trol of Rent and Eviction) Act, 1950 by an Ordinance on
September 29, 1975, The Ordinance was later replaced by an
Act. Clause (a)of the section provides that no Court shall,
in any proceeding pending on the date of the commencement of
the Amending Ordinance, pass any decree in favour of a
landlord for eviction of a tenant on the ground of non-
payment of rent under certain circumstances. Clause (b)
provides that in every such proceeding the Court shall, on
the application of the tenant, made within 30 days from the
date of the presentation of the memorandum of appeal or
application for revision, determine the amount of rent in
arrears. Clause (c) provides that the provisions of els.
(a) & (b) shall, mutatis mutandis, apply to all appeals, or
applications for revision, preferred or made after the
commencement of the Amending Ordinance. Explanation (b) to
the section defines a proceeding to mean a suit, appeal or
application for revision. Section 22(1) provides that from
every decree or order passed by the Court under the Act, an
appeal shall lie to the Court to which appeals ordinarily
lie :from original decrees and orders passed by such former
Court.
On the ground of non-payment of rent, a decree of evic-
tion was passed against the appellant, who was the respond-
ent’s tenant. The High Court having affirmed the decree on
appeal, the appellant filed an application for special leave
to this Court on September 23, 1975. The Ordinance intro-
ducing s. 19A was passed on September 29, 1975. This Court
granted special leave on November. 1975.
In appeal to this Court it was contended by the appel-
lant (1) that since the application for special leave was
pending before this Court on the date of the commencement of
the Ordinance, the case was governed by s. 13A (a) and (b)
of the Act; (2) in the alternative since, as a result of the
grant of special leave, an appeal had been pending before
this Court, the appellant was entitled to the protection of
s. 13A(c) of the Act.
Dismissing the appeal,
HELD: (Per Chandrachud and Goswami, JJ)
(1)(a) In order to attract s. 13A(a) a suit, appeal or
application for revision must be pending on the date of the
commencement of the Ordinance. An application for special
leave under Art. 136 of the Constitution cannot be equated
with the ordinary remedy of appeal as of right under any
provision of law. It is an extraordinary right conferred
under the Constitution, within the discretion of the Supreme
Court and an application for special leave does not come
within the contemplation of appeal pending before the Court
under s. 13A(a). The collocation of the words "suit, a.
appeal or application for revision" used in the explanation
to denote "proceeding", shows that the suits and regular
appeals therefrom as provided under the ordinary law and
applications for revision alone are intended. [329C & B]
325
(b) The expression "presentation of memorandum of appeal"
under s. 13A (c) chimes with the construction that the
legislature clearly intended to include only the hierarchy
of appeals under the Code of Civil Procedure. [330D]
(c) Under s. 13A(c) read with s. 13A(b) in a pending
appeal, the tenant has to make an application within 30 days
"from the date of presentation of the memorandum of appeal".
There is no provision in an appeal by special leave for
presentation of memorandum of appeal, under r. 11 of
O.XVI. of the Supreme Court Rules, on the grant of special
leave, the petition for special leave is treated as the
petition of appeal. In contrast under O.41 r. 1(1) of the
Code of Civil Procedure, every appeal shall be preferred in
the form of a memorandum signed by the appellant and pre-
sented to the Court. [329H]
(d) The terminus a quo for the purpose of s. 13A(c) is
from the date of presentation of the memorandum of appeal.
Since no petition of appeal has to be presented in the
Supreme Court after the special leave is granted, such a
contingency of appeal to this Court by way of special leave
is not intended to be covered by s. 13A(c). [330C]
(2) Section 22 cannot assist the appellant in this case.
While s. 22(1 ) qualifies the decree or order as being
"under this Act" s. 13A does not describe "proceeding" to be
under the Act. [330E; 332C]
The Act provides for the institution of serious in two
different forums namely, the lowest Court of competent
jurisdiction, which is the Civil Court, and the other before
a Magistrate on the executive side. [332F]
Appeals or applications for revision under s. 13A(c)
relate only to decrees in suits-for eviction based on the
ground of non-payment of rent. Such appeals or applications
for revision under s. 13A(c) are not contemplated under s.
22. Decrees or orders passed by the Court under the Act,
against which appeals and revisions are provided in s. 22,
do not take in decrees and orders passed in a suit for
eviction. Usual rights of appeal and revision will be
available in the latter class of suits. To hold otherwise
will be to deny a right of second appeal to a litigant,
whether it is landlord or tenant, against a decree in an
eviction suit which is clearly not the intention of the
legislature. Second appeal is only barred in case of de-
crees or orders passed under the Act. [332H]
(Per S. Murtaza Fazal Ali, J.)
Proceedings in this Court would not fall within the
ambit of cls. (a) and (b) of s. 13A. [338F]
(a) The Explanation to the section clearly shows that
the word "proceeding" refers only to such proceedings as may
be pending in any suit, appeal or application for revision
under the Act. The use of the words "such proceedings" in
s. 13A(b) shows that the proceedings contemplated by s. 13A
are really proceedings referred to in the explanation, which
means proceedings in the nature of suits, appeals or appli-
cations for revision as referred to in s. 22. [338E-F]
(b) Section 13A(c) would not apply to the present case.
The benefit conferred by el. (c) would apply only to appeals
and applications for revision filed under the Act as provid-
ed by s. 22. The true interpretation of cl. (c) would be
that this clause contemplated the same proceedings as con-
templated by els. (a) and (b), namely, proceedings indicated
in the explanation. [338G-H]
(c) An appeal by special leave is a special remedy
provided by Art. 136 of the Constitution and the legislature
must be presumed to be aware of this special remedy. If the
intention was to extend the benefit to appeals for special
leave, it should have been clearly stated in el. (c).
[339B]
(d) The Supreme Court Rules make a clear-cut distinction
between an application filed for the grant of special leave
and a petition of appeal, if the leave is granted. The
constituents and ingredients of an application for special
leave to appeal are quite different from those of a memoran-
dum of appeal under O.X.LI r. 1(2) of the Code of Civil
Procedure. [339D]
326
(e) The provisions of O.XLI, r. 1(2) C.P.C. require that the
memorandum of appeal has to set forth under distinct heads,
the grounds of objections to the decree appealed from. No
such requirement is to be found in the Supreme Court Rules
either for an application for special leave to appeal or in
the petition of appeal which is required to be filed if
certificate by the High Court is granted. The legislature
must be. presumed to be aware of the difference between an
application for special leave to appeal and a memorandum of
appeal. Though r. 11 of O.XVI of the Supreme Court Rules
provides that the petition for special leave would be treat-
ed as a petition of appeal after the special leave is grant-
ed,it cannot be equated with a memorandum of appeal contem-
plated by s. 13A(c) of the Act. [339G-H]
(f) The fact that s. 13A(c) mentions the words "from the
date of the presentation of the memorandum of appeal or
application for revision" clearly indicates that the reme-
dies contemplated by the Act are remedies of appeal and
revision as provided for by s. 22 of the Act. [339H]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1743 of
1975.
(Appeal by special leave from the judgment and order
dated 5.9.1975 of the Rajasthan High Court in S.B. Civil 2nd
Appeal 302 of 1974)
M. Jain,., for the appellant.
S.C. Agarwala and V.J. Francis, for Respondents 1 & 2.
The Judgment of Y.V. Chandrachud and P.K. Goswami, JJ.
was delivered by Goswami, J.S. Murtaza Fazal Ali, J. gave a
separate Opinion.
GOSWAMI, J. The facts of the case relating to this
appeal by special leave have been fully described in the
judgment of our learned brother, Fazal Ali, J. We agree
with the conclusion reached by him that this appeal should
be dismissed. We also agree with our learned brother that
the appeal should be dismissed on the merits.
However, so far as the question of law that arises in
this appeal, we would like to confine our decision to the
reasons given hereinafter.
The question of law ,that arises in this appeal is as to
whether an application for special leave or an appeal by
special leave to thin, Court is an "appeal" within the
meaning of section 13A of the Rajasthan Premises (Control of
Rent and Eviction) Act 1950, as amended by the Rajasthans
Ordinance No. 26 of 1975 (briefly the Act). We should,
therefore, read section 13A:
"13A. Special provisions relating to pend-
ing and other
matters: Notwithstanding anything to
the contrary
in this Act as it existed before the
commencement of
the Ordinance or in any other law,
(a) no court shall, in any proceeding
pending on the date of commencement of the
amending Ordinance pass any decree in favour
of a landlord for eviction of a tenant on the
ground of non-payment of rent, the tenant
applies under clause (b) and pays to
327
the landlord,. or deposits in court, within
such time such aggregate of the amount of rent
in arrears, interest thereon and full costs of
the suit as may be directed by the court under
and in accordance with that clause;
(b) in every such proceeding, the court
shall, on the application of the tenant made
within thirty days from the date of commence-
ment of the amending Ordinance, notwithstand-
ing any order to the contrary, determine the
amount of rent in arrears upto the date of the
order as also the amount of interest thereon
at six per cent per annum and costs of the
suit allowable to the landlord; and direct the
tenant to pay the amount so determined within
such time, not exceeding ninety days, as may
be fixed by the court, and on such payment
being made within the time fixed as aforesaid,
the proceeding shall be disposed of as if the
tenant had not committed any default;
(c) the provisions of clause (a) and (b)
shall mutatis mutandis apply to all appeals,
or applications for revision, preferred or
made after the commencement of the amending
Ordinance, against decree$ for eviction passed
before such commencement with the variation
that in clause (b), for the expression "from
the date of commencement of the amending
Ordinance" the expression "from the date of
the presentation of the memorandum of appeal
or application for revision" shall be substi-
tuted;
(d) no court shall in any proceeding pending
on the date of commencement of the amending
Ordinance, pass any decree in favour of a
landlord for eviction solely on the ground
that due to the death of the tenant as defined
in clause (vii) of section 3 as it stood
before the commencement of the amending Ordi-
nance, his surviving spouse, son, daughter and
other heir as are referred to in sub-clause
(b) 04 clause (vii) of section 3 were not
entitled to the protection against eviction
under this Act as it stood before the com-
mencement of the amending Ordinance;
(e) no decree for eviction passed by any
court before the commencement of the amending
Ordinance shall, unless the same already
stands executed before such commencement, be
executed against the surviving spouse, son,
daughter and other heir as are referred to in
sub-clause (b) of the clause (vii) of section
3 if such decree was passed solely on the
ground as is referred to in clause (d) and
such decree shall be deemed to be a nullity as
against them; and
5 --1546SCI/77
328
(f) the provisions of clause (d) shall mutatis
mutandis apply to all appeals, or appli-
cations for revision preferred or made, after
the commencement of the amending
Ordinance,and
Explanation: For the purposes of this section
:-
(a) amending Ordinance means the Rajas-
than Premises (Control of Rent and Eviction)
(Amendment) Ordinance, 1975; and
(b) ’proceeding’ means suit, appeal or
application revision."
Even in the original Act passed in 1950 section 13(1)(a)
was there with two provisos and there was restriction
against eviction. Under section 13(4) of the original Act a
right was conferred upon the tenant in a suit founded on the
ground of non-payment of rent to pay the arrears with inter-
est and costs as determined by the court on the first day of
hearing within the outside limit Of fifteen days from the
date of the order. If ,the tenant complied with the order,
the suit for eviction stood dismissed,
By the Amending Rajasthan Act 12 of 1965 section 13A was
introduced. Sub-section (4) of section.13 of the original
Act was substituted by still preserving the tenant’s right
to pay the arrears with interest and costs within the out-
side limit of two months and on payment of the same no
decree for eviction on the ground of nonpayment of rent
shall be passed. The Rajasthan Ordinance No. 26 of 1975
inter alia has amended the opening non-obstante clause of
section 13A and except for substituting the word ’Act’ by
’Ordinance’ in clauses (a), (b) and (c) nothing else has
been altered.
Section 13A is selective enough. Only one type of
eviction decree which is solely based on the ground of non-
payment of rent is taken care of extending still further the
period for payment ,of arrears with interest and costs.
Under section 13A, as amended, the benefit is available in
pending suits of that category, appeals therefrom and appli-
cations for revision pending on the date of commencement of
the Ordinance, that is, on 29th September, 1975.
The decree of eviction with which we are concerned in
this appeal is founded on the ground of non-payment of rent
as specified in section 13(1) (a).
There is a two-fold submission bY the learned Counsel
for the appellant. First, in view of the fact that the
appellant lodged on 23rd September, 1975, an application
under Article 136 of the Constitution praying for special
leave to appeal against the judgment of the High Court and
the Ordinance was passed on 29th September, 1975, after that
application, his case is governed by section 13A(a) and (b)
of the Act. In the alternative, the appellant submits that
at any rate after the special leave had been granted by this
Court there was an appeal reading against the judgment of
the High Court
329
and since he submitted an application within 30 days from
the grant of Special leave his case is covered by section
13A(c) of the ACt.
" With regard to the first submission it may be pointed out
that an application for special leave under Article 136 of
the Constitution against a judgment or an order cannot be
equated with the ordinary remedy of appeal, as of right,
under any provisions of law. It is an extraordinary right
conferred under the Constitution, within the discretion of
,this Court, and such an application for Special leave does
not come within the contemplation of appeal pending before
the court under Section 13A(a). It is true that the word
"proceeding" winch appears in section 13A(a) and (b) means
suit, appeal or application for revision according to the
Explanation appended to section 13A. Therefore, in order to
attract section 13A(a), a suit, appeal or application for
revision ,must be pending on the date of commencement of the
Ordinance No. 26 of 1975..
In view of the connotation of the wordl "proceeding" as
given under the Explanation to section 13A it is impermissi-
ble to extend the meaning of the word "proceeding" to in-
clude an application for Special leave under Article 136 of
the Constitution. The collocation of the Words, "suit,
appeal or application for revision" in the Explanation to
denote "proceeding" would go to show that suits, regular
appeals therefrom, as provided under the ordinary law and
applications for revision alone are intended. It is incon-
ceivable that if the legislature had intended to include
within the ambit of "proceeding" an application for special
leave under Article 136 of the Constitution it would have
omitted to mention it in express terms.
We will now deal with the second submission of the
appellant. which is the alternative argument.
It is submitted by the appellant that even if an appli-
cation for special leave is not an appeal for the purpose of
section 13A(a) in view of the fact that leave of this Court
had been obtained and an appeal had been pending in pursu-
ance of the grant of special leave he iS entitled to invoke
the protection under section 13A(c). It is on that basis
that the appellant submitted a second application relying
on section 13A(c).
Under Order XVI, rule 11 of the Supreme Court Rules, on
the grant of special leave the petition for special leave
shall, subject to the payment of additional court fee, if
any, be treated as the petition of. appeal and it shall be
registered and numbered as such. Under section 13A(c) read
with section 13A(b), in a pending appeal, the tenant has to
make an application within 30 days from the date of the
presentation of the memorandum of appeal". There is no
provision in an appeal by special leave for presentation of
a memorandum of appeal, but, as stated earlier, under rule
11 on the grant of special leave the petition for special
leave is treated as the petition of appeal and registered
and numbered as such.. We may in this connection contrast
the provisions of the Civil Procedure Code where the proce-
dure is laid down for appeals. Order 41, Civil Procedure
330
Code, deals with appeals from original decrees. Under sub-
rule (1) of rule 1 of Order 41, every appeal shah be pre-
ferred in the form of a memorandum signed by the appellant
or his pleader and presented to the court or to such officer
as it appoints in this behalf. Under Order 42, the rules of
Order 41 shah apply, so far as may be, to appeals from
appellate decrees. Similarly the same procedure, as under
Order 41, is provided for under Order 43, rule 2, with
regard to appeals from orders. It is, therefore, clear that
under the Civil Procedure Code an appeal has to be preferred
in the form of a memorandum and presented to the court or to
such officer appointed by the court in that behalf.
The question of limitation provided under section 13A(b)
and (c) is important and the terminus a quo for the purpose
of section 13A (c) is from the date of presentation of the
memorandum of appeal. Since no petition of appeal has to be
presented in this court after special leave is granted, such
a contingency of appeal to this Court by way of special
leave is not intended to be covered by section 13A(c). On
the other hand the expression "the presentation of the
memorandum of appeal" in section 13A(c) chimes with the
construction that the legislature clearly intended to in-
clude only the hierarchy of appeals under the Civil Proce-
dure Code wherein presentation of the memorandum of appeal
is an obvious requisite.
We may next deal with the question whether section 22 of
the Act is of assistance in deciding this controversy since
our learned brother’s conclusion has received sustenance
also from the said section. We do not think so.
Before we proceed further we may turn to some of the
material provisions in the Act.
Section 6 provides for fixation of standard rent and
under sub section (1 ) thereof the landlord or the tenant
may institute a suit in the lowest court of competent
jurisdiction for fixation of standard rent for any premises.
Sub-section (1) of section 7 provides for fixation of
provisional rent by the same court upon the institution of a
suit under section 6. Under sub-section (4) of section 7
any failure to pay the provisional rent for any month by the
fifteenth day of the next following month shah render the
tenant liable to eviction under clause (a) of sub-section
(1) of section 13, and all sums due from the tenant as such
rent shall be recoverable from him as if the order under
sub,section (1) were a decree of the court in a suit for
periodical payments. Section 11 provides for procedure for
increasing rent and the landlord may bring a suit under
subsection (3) of section 11 for increasing rent or standard
rent in the lowest court of competent jurisdiction. Under
sub-section 11(4) the court shall, after such summary en-
quiry, as it may think necessary, make orders according to
law, and a decree shall follow. Section 19A provides for
payment, remittance and deposit of rent by tenants and the
court for the purpose of that section as well as for sec-
tions 19B and 19C with respect to any local area means any
civil court which may be specially authorised by the State
Govern-
331
ment by notification in this behalf, or where no civil court
is so authorised; the court of the Munsif, and the court of
the Civil Judge, where there is no court of Munsif having
jurisdiction over the area.
Section 12 provides for dealing with disallowance of
amenities by the landlord by the Magistrate. The Magistrate
means the sub Divisional Magistrate having jurisdiction.
over the place where the premises in question are situated
and includes such other Executive Magistrate having juris-
diction over and sitting at that place, as the State Govern-
ment may empower in this behalf section 3(i)]. Under sub-
section (6) of section 12 the order of the Magistrate under
subsection (3) shall be executed by the Munsif having juris-
diction, or where there is no Munsif, by the Civil Judge
having jurisdiction over the area in which the premises are
situated as if it were a decree passed by such Munsif or
Civil. Judge, as the case may be. Next,section 17 describes
the powers of a Magistrate to require premises to be let and
certain orders can be passed under that section by the
Magistrate. Similarly section 19 enables the Magistrate
to pass certain orders with regard to the vacant building
sites.
From a conspectus of the above provisions it will be seen
that there are two types of forums for instituting action
under the Act. One category of actions is taken to the
lowest court of competent jurisdiction which is a civil
court and the other category is lodged before the Magistrate
on the executive side.
The word court, however, is not defined in the Act but for
purposes of sections 19A, 19B and 19C. While the forums are
specified for certain types of actions enumerated in the Act
no court as such is specified in the Act for entertaining
suits of eviction by landlord against a tenant. It is,
therefore, manifest that such suits will lie in the ordinary
civil court of competent jurisdiction. That court will,
however, have to take into account the relevant provisions
of the Act, for the purposes of determination of controver-
sies raised before it. The benefits conferred by the Act
upon the tenants will have to be given by the civil court in
trying eviction suits. Where there is a bar of eviction
under the Act the court will have to give effect to it.
As is clear from the above narration that there is a
dichotomy of forums under the Act, some matters are lodged
before the lowest court of competent jurisdiction and some
others before the Magistrate. There is a tertium quid,
namely, the usual court which is available to the landlord
for instituting suits for eviction against tenants. The
landlord, however, will have to take note of the provisions
under the Act and comply with those provisions in such a
litigation. The tenant also, in such suits, will be able to
claim all the benefits conferred upon him under the Act
which the courts will, in appropriate cases, grant.
In the above background of the provisions in the Act
section 22 which provides for appeals and revisions may be
read:
332
"22(1) From every decree or order paSsed by
a. court under this Act, an appeal shall lie
to the court tO which appeals ordinarily lie
from original decrees and orders passed by
such former court.
(2) No second appeal shall lie from any
such decree or order;
Provided that nothing herein contained shall
affect the powers of the High Court for
Rajasthan in revision;
(3) Any person aggrieved by an order of
the. Magistrate may, within fifteen days from
the date of-such order, appeal therefrom to
the District Magistrate or such. authority. as
the State Government may from time to time
appoint in that month."
It is very significant that while SectiOn 22( 1 ) quali-
ties the decree or order aS being "under this Act", Section
13A, on the contrary, does not describe "proceeding" to be
under the Act.
Section 22(1) refers to every decree or order passed by a
court under this Act. The decree or order passed. under
this Act must,therefore, have reference to those passed
under Sections 6, 7, 11, 19A and 19C. Sub-section (2) pro-
vides that no second appeal shall lie from any such decree
or order. Such decrees or orders are, therefore, again
referable to those passed under the above mentioned sections
under the Act, While a second appeal is barred in case of
those decrees and orders under the Act the High Court’s
power of revision is not barred. Sub-section (3), of section
12 provides for appeals from an order of a Magistrate to the
District Magistrate or such authority as may be appointed by
the Government. As noticed earlier Certain orders are
passed by.the Magistrate under section 1,(3), Section. 17
and section 19 Section ,22(3) makes provision of appeal
against such orders passed under section 12(3), section 17
and section 19.
It is, therefore, clear that the Act provides for the.
institution of actions in two different forums and also
makes provision for appeals and revisions against orders and
decrees passed under the Act. There is no provision in the
Act for institution of suits for eviction which will, there-
fore, lie in the ordinary =courts of competent jurisdiction.
Appeals, also revisions, where competent, will lie against
’decrees in eviction suits in the usual hierarchy of
Courts.
It is manifest from a perusal of the scheme of the Act
that appeals or applications for revision under section
13A(c) relate only to decrees in :suits for eviction based
on the ground. of nonpayment of rent. Such appeals or appli-
cations for revision under section 13A(c) are not contem-
plated under section 22 of the Act. As shown above, decrees
or orders passed by the court under the Act against which
appeals and revisions are provided in Section 22 do not take
in decrees or orders passed in a Suit for eviction. Usual
rights of appeal and revision will be available in the
latter class of
333
suits. To hold otherwise will be to deny a right of second
appeal to a litigation, be he a landlord or tenant, against
a decree in an eviction suit which is clearly not the inten-
tion of the legislature. Second appeal is only barred in
ease of decrees or orders passed under the Act to which a
copious reference has been made hereinabove with reference
to the various provisions of the Act.
With regard to execution proceedings, it. would
appear that these are outside the scheme of clauses (a) to
(c) of section 13A but it is unnecessary to express any firm
opinion on that point since it does not arise in this ap-
peal.
We are of opinion that the appellant cannot take advan-
tage of section 13A in this appeal by special leave. His
applications under section 13A stand dismissed. The appeal
is, therefore, dismissed, but there will be no order as to
costs.
FAZAL ALl, J. This appeal by special leave involves a
question of law regarding the ambit and.scope of s. 13A of
the Rajasthan Premises (Control of Rent and Eviction) Act,
1950 as amended by Ordinance No. 26 of 1975 dated September
29, 1975 which was later replaced by an Act.
The appeal arises in the following circumstances.
The defendant/appellant along with his two brothers
Padam Chand and Tara Chand had taken on lease a shop at a
monthly rent of Rs.60/- from the plaintiffs/respondents as
far back as September 1, 1961. The shop was situated in
Tripolia Bazar, Jaipur City (Rajasthan). The plaintiffs
served a notice of eviction under S. 106 of the Transfer.
of Property Act on the appellant and his two brothers
terminating. the tenancy and directing. them to vacate the
premlses..As the tenants did not Vacate the premises, the
plaintiffS instituted the present suit..in the Court of the
Munsiff East, Jaipur City,_ claiming eviction of the appel-
lant and his two brothers on me ground that they had not
paid or tendered rent for a period of, six months from Magh
shukla 1, smvt. 2021..In the plaint the plaintiffs also
averted that the. shop was required by them for their own
use and occupation and that the tenants had sublet the shop
to Rajasthan Bartan Bhandar. without the consent of the
plaintiffs. We might mention here that these two grounds.
taken by the plaintiffs have been held by all the Courts to
be completely disproved, and.the suit was decreed by the
District Judge and the High Court mainly, on. the ground
that thetenants had defaulted in payment of rent for a
PeriOd of six months and were, therefore, liable to be
ejected under the provisions. 0f the Rajasthan premises
(Control. of Rent and Eviction) Act, 1950--hereinafter
referred to as ’the Act’. It appears that after summonses
were served on all the three defendants including the
appellant, two of the brothers of the appellant, Viz., Padam
Chand and Tara Chand put in their appearance, but the appel-
lant despite the service did not put in his appearance. In
fact the counsel who was appearing for the other two defend-
ants had been instructed to -appear for the appellant
also, but the Vakalatnama was not signed by the appellant.
The appellant appears to have taken advantage of
334
this lacuna in contending that he had not participated in
the proceedings of the Trial Court. On February 14. 1966
the defendant Tara Chand moved an application under s..13 of
the Act praying to the Court that the rent due may be
determined and the defendants may be directed to deposit
the rent. The Court accordingly determined the rent on
March 1, 1966 and directed the defendants to deposit a sum
of Rs.398-75 Paise on or before April 19, 1966. As the
rent was not deposited, the plaintiffs moved an application
for striking out the defence of the defendants against
eviction for their failure to comply with the provisions
of s. 13(4) of the Act. The Court accordingly by its
order dated December 14, 1966 struck out the defence of
the defendants. It may be pertinent to note that although
the appellant had not put in his formal appearance he under-
stood the order of the Trial Court dated December 14, 1966
striking out the defence and treated the same as having
been passed not only against his brothers Padam Chand and
Tara Chand, the two defendants, but also against himself and
accordingly he along with his brothers preferred an appeal
against that order to the Senior Civil Judge, Jaipur City
on October 30, 1967. This appeal was ultimately dismissed
and then the three defendants flied an application for
revision before the High Court which was also dismissed by
the High Court by its order dated September 19, 1968. Thus
it is manifest that the appellant was fully aware of the
proceedings that had taken place as also of the order that
had been passed against the defendants striking out their
defence. When the record was received back by the THai
Court, Shri Tara Chand Jain Advocate of the defendants
informed the Court on November 26, 1968 that he was holding
brief only on behalf of the two defendants Padam Chand and
Tara Chand and not on behalf of the appellant Gyan Chand.
The Court accordingly passed an order that the suit was to
proceed ex parte against the appellant. On November 30,
1968 the appellant flied an application for setting aside
the ex parte order passed against him and this application
found favour with the Trial Court and was accordingly
allowed. The appellant was allowed to file his written
statement which he filed on January 27, 1969. Thereafter
the appellant applied to the Court for determining the rent
due to the plaintiffs but that application was rejected on
the ground that no amount of rent was payable as the
entire rent due had already been paid by the other two
defendants. Thereafter the plaintiffs flied an application
before the Trial Court for striking out the defence against
Gyan Chand as he had not complied with the order under s.
13(4) of the Act passed by the Court previously. The Trail
Court, however, did not pass any orders on that application
and ultimately dismissed the suit holding that there was no
default.
It may be. stated at the outset that when the appellant
applied for setting aside the ex parte order he gave no
explanation whatsoever for his non-appearance in the suit,
after the summonses were served on him but merely tried to
explain his absence on November 26, 1968. We have already
pointed out that the appellant knew very well that the
defence had been struck ,out by an order of the Court and
had actually joined in the appeal and the revision flied by
the other two defendants. In spite of that for two years he
kept quiet and gave no explanation whatsoever for not
appearing before the
335
Court and participating in the proceedings until November
30, 1968. This delay of two years which has been seriously
commented upon by the High Court has not been explained
satisfactorily by the appellant.
After the suit was dismissed by the Trial Court, the
plaintiffs filed an appeal before the Additional District
Judge who allowed the appeal holding that the defendants
were defaulters and accordingly decreed the suit. The
grounds of subletting and personal requirement as alleged
by the plaintiffs were, however, held not proved. Thereaf-
ter there was second appeal to the High Court which affirmed
the judgment of the District Judge and maintained the decree
passed by the District Judge. The High Court has rightly
pointed out that the conduct of the appellant in not
giving any explanation for not participating in the proceed-
ings despite service of the summonses speaks volumes
against him. The argument of the appellant that the entire
proceedings should be cancelled as they had taken place in
his absence was rightly rejected by the High Court. In view
of the concurrent findings of fact recorded on this point
by the District Judge and the High Court, we are not at all
inclined to interfere, in this appeal by special leave, with
the merits of the case decided by the Courts below we are
satisfied that the appellant was not diligent at all and has
to thank his stars if the decision of the Courts below went
against him In these circumstances, we do not propose to
enter into merits of the appeal.
Mr. Jain, however, raised a pure question of law flowing
from the amendment by which s. 13A was introduced in the Act
by virtue of Ordinance No. 26 of 1975. Mr. Jain submitted
that the statutory benefit conferred by s. 13A would have to
be extended to the appellant before this Court also and
since the rent due had already been paid and the appellant
was prepared to pay the costs and interest, the suit should
be dismissed. In order to appreciate this point, it may be
necessary to state the sequence of facts. The High Court
dismissed the second appeal of the appellant on September 5,
1975. Against this judgment, the appellant filed an applica-
tion for special leave in this Court on September 23, 1975.
Six days later i.e. on September 29, 1975 Ordinance No. 26
of 1975 dated September 29. 1975 introduced s. 13A by amend-
ing the Act. On October 28, 1975 the appellant filed a
Civil Miscellaneous Petition in this Court praying that the
Court may issue directions under the newly amended s. 13A
(c) of the Act. On November 14, 1975 this Court granted
special leave. On December 11, 1975 another Civil Miscella-
neous Petition was filed by the appellant renewing his
prayer for directions to be given by this Court under s. 13A
of the Amending Act. The significance of these Civil Mis-
cellaneous Petitions appears to have been that if the spe-
cial leave petition was not treated as an appeal, then the
moment the special leave was granted by this Court the
appeal stood admitted by this Court and, therefore, the
second application was filed for directions under s. 13A of
the Act as amended.
Mr. Agarwala counsel for the respondents has vehemently
contended that s. 13A of the Act would have absolutely no
application to appeal by special leave filed in this Court.
In order to appreciate
336
this point it may be necessary to examine the language and
the circumstances under which s. 13A was introduced. It
would appear that before the introduction of s. 13A by
virtue of the. Ordinance there was no provision in the Act
which prohibited the Court from passing any decree if at any
stage the tenant was prepared to deposit the, entire rent,
costs and interest as directed by the Court. The Legisla-
ture in pursuance of its socialistic policies attempted to
liberalise the conditions of tenancies so as to give the
tenants special protection against frivolous evictions.
With this object in view, the Ordinance appears to have been
passed which was later on replaced by an Act. In the state-
ment of objects and reasons accompanying.the amending Act it
is mentioned that the Legislature decided to provide relief
to tenants occupying premises in urban areas and in clause
(6) 0f the said statement, the following observations are
made:
"In relation to pending suits and pro-
ceedings for ejectment on ground of defaults,
an opportunity had been given to tenants to
deposit the arrears of rent within thirty
days and upon such deposit no decree for
ejectment will be passed on such ground
against them."
Thus a perusal of clause (6) of the statement of
Objects and reasons would clearly show that the intention of
,the Legislature was to confer certain benefits on the
tenants to pending suits and proceedings for ejectment only
on ground of defaults by giving them an opportunity
to deposit the arrears within a specified time. It is
nowhere mentioned in clause (6) that this benefit was to be
extended beyond the frontiers of the State in appeals which
Were not ordinary remedies but which were special remedies
provided for under the Constitution. Thus the scope of the
amendment was to confine the protection given
to the tenants within the limits of the hierarchy of courts
mentioned by the Act, and to the.Courts in the State of
Rajasthan. It may be noticed that the statement of,objects
and reasons does not even give a hint that the benefit
conferred by s. 13A ’would’ be available even in the execu-
tion proeedings after the decree had‘ been passed. We shall
now analyse s. 13A of the Act, against the background of the
main objective of the Legislature. Section 13A of the ACt
as introduced by Ordinance No. 26 of 1975 and later re-
placed by the Act runs thus:
"13A. Special provisions relating to pending
and other matters -- Notwithstanding anything
to the contrary, in ’this Act as it’ existed
before the commencement of the ordinance or
in: any other law:
(a) no court shall, in any proceeding.
pending on the date of commencement of the
amending ordinance pass any decree in
favour of a landlord for eviction of a
tenant on the ground of non-payment of rent,
if the tenant applies under clause (b)
and pays to the landlord; or deposits in
court, Within such time. such aggregate of
the amount of rent in arrears, interest
337
thereon and full costs of the suit as may be
directed by the court under and in accordance
with that clause;.
(b) in every such proceeding, the court
shall on the application of the tenant made
within thirty days from the date of commence-
ment of the amending ordinance, notwithstand-
ing any order to the contrary, determine the
amount of rent in arrears upto the date of the
order as also the amount of interest thereon
at six per cent per annum and costs of the
suit allowable to the landlord; and direct the
tenant to pay the amount so determined within
such time, not exceeding ninety days, as may
be fixed by the ,court, and on such payment
being made within the time fixed as afore-
said, the_proceeding shall be disposed of as
if the tenant had not committed any default;
(c) the provisions of clauses (a) and
(b) mutatis mutandis apply to all appeals, or
application for revisions, preferred or made
after the commencement of the amending ordi-
nance, against decrees for eviction passed
before such commencement with the variation
that in clause (b), for the expression "from
the date of commencement of the amending
ordinance" the expression "from the date of
the presentation of the memorandum of appeal
or application for revision" shall be substi-
tuted;
X X X
Explanation:--For the purpose of this
section .
(a) "amending ordinance" means the
Rajasthan Premises (Control of Rent and
Eviction) (Amendment) Ordinance, 1975; and
(b) "Proceeding" means suit, appeal or
application for revision."
Section 13A contemplates only three kinds of proceedings,
namely, suits, appeals and applications for revisions and
these proceedings must be under the Act ,itself. Clause.
(a) of s. 13A of the Act provides that no court after the
commencement of the mending ordinance shall pass any decree
on the ground of non-payment of rent if the tenant applies
and a s to the landlord the entire rent in arrears interest
and full costs of the suit. Clause (b) requires that such
an application is to be made within thirty days of the com-
mencement of the amending ordinance on,Which the Court would
determine the rent in arrears and direct, interest to be
paid at the rate of six per cent per annum. Clauses (a) and
(b) obviously do not apply to the present case, because the
proceedings were not pending in any court when the ordinance
or the Act came into force. Reliance was, however, placed
on the word "proceeding" as appearing in clauses (a) and (b)
in
338
order to plead an argument that the word "proceeding" was
wide enough to include not. only Suits, but appeals at all
stages. This argument in our opinion is based on a serious
misconception of the interpretation of the word
"proceeding". The Legislature has not left the connotation
of the word "proceeding" in doubt because clause (b) of the
Explanation clearly indicates what "proceedings" contemplat-
ed by s. 13A in clauses (a), (b) and (c) are. The Expla-
nations clearly shows that "proceeding" means suit, appeal
or application for revision. A logical interpretation of
clause (b) of the Explanation would clearly reveal that
the Act itself has limited the scope of the proceeding to
suits, appeals or applications for revision under the
hierarchy of the statute. In other words, the Explanation
refers only to Such proceedings as may be pending in any
suit, appeal or application for revision under the Act.
Section 22 of the Act runs thus:
"22. Appeals and Revisions :--(1) From
every decree or order passed by a Court under
this Act, an appeal shall lie to the Court to
which appeals ordinarily lie from original
decrees and orders passed by such former
court.
(2) No second appeal shall lie from any
such decree or order;
Provided that nothing herein contained
shall affect the powers of the High Court for
Rajasthan in revision;
X X X X
"
Section 22 provides for an appeal to the Court where an
appeal ordinarily ties, i.e. the Court of the District Judge
in the instant case and thereafter an application in revi-
sion to the High Court. The use of the words "such proceed-
ing" in clause (b) of s. 13A fortifies our conclusion that
the proceedings contemplated by s. 13A are really the pro-
ceedings referred to in Explanation which means proceedings
in the nature of suits, appeals or applications for revision
as referred to in s. 22 of the Act. In these circumstances
we are unable to agree with the learned counsel for the
appellant that proceedings in this Court would fall within
the ambit of clauses (a) and (b) of s. 13A of the Act.
It was then submitted that at any rate clause (c). of s.
13A would apply to the facts of the present case and the
appellant should be given the benefit of that provision. It
is true that clause (e) applied the provisions of clauses
(a) and (b) mutatis mutandis to appeals and applications for
revision. It may be noticed, however, mat this benefit is
not conferred even in the execution proceedings arising out
of decrees passed in suits or appeals and upheld in revi-
sions. The true interpretation of clause (c) of s. 13A
would, therefore, be that this clause also contemplated the
same proceedings as contemplated by clauses (a) and (b),
namely the proceedings indicated in the Explanation. Thus
the benefit conferred by clause (c) would apply only to
appeals or applications for revisions filed under the
339
Act as provided by s. 22 of the Act. The Legislature never
intended to confer this benefit beyond the frontiers of the
State.
It was however, submitted that the word "appeal" is wide
enough to include an appeal by special leave filed in this
Court. It is, however, not possible to accept this conten-
tion. The amendment was passed some time in the year 1975
i.e. about 25 years after the Constitution had come into
force. An appeal by special leave was a special remedy
provided for by Art. 136 of the Constitution and the State
Legislature of Rajasthan must be presumed to be aware of
this special remedy as also the nomenclature of this remedy.
If the intention was to extend the benefit to appeals for
special leave it should have been so clearly stated in
clause (c). Furthermore, the Rules flamed by the
Supreme Court, the knowledge of which also must be
ascribed to the State Legislature, make a clear-cut distinc-
tion between an application filed in the Court for grant of
special leave and a petition of appeal after the leave is
granted. It was suggested that the application for special
leave to appeal may be treated as the memorandum of appeal
as referred to in clause (c) of s. 13A. It is, however, not
possible to accept this ,contention, because the constitu-
ents and ingredients of an application for special leave to
appeal are quite different from those of a memorandum of
appeal preferred to an appellate Court under O. XLI r. 1(2)
of the Code of Civil Procedure. Under O. XVI r. 4 of the
Supreme Court Rules, 1966 the petition for special leave is
to contain only the necessary facts and not the grounds. It
is true, r. 11 of O. XVI of the Supreme Court Rules provides
that the petition for special leave would be treated as a
petition of appeal after the special leave is granted, but
that also cannot be equated with a memorandum of appeal as
contemplated by clause (c) of s. 13A of the Act. In
contra-distinction to the provisions of the Supreme Court
Rules it would appear that O. XLI r. 1 (2) of the Code of
Civil Procedure runs thus:
"The memorandum shall set forth, con-
cisely and under distinct heads, the grounds
of objection to the decree appealed from
without any argument or narrative; and such
grounds shall be numbered consecutively."
It would thus appear that the provisions of r. 1 (2) of
O. XLI Code of Civil Procedure require that the memorandum
of appeal has to set forth under the distinct heads the
grounds of objections to the decree appealed from. No such
requirement is to be found in the Supreme Court Rules either
for an application for special leave to appeal or in the
petition of appeal which is required to be field if certifi-
cate by High Court is granted. The Legislature must be
presumed to be aware of the difference between an applica-
tion for special leave to appeal and a memorandum of appeal.
If the intention was to extend the benefit of s. 13A even to
appeals before the Supreme Court, then apart from the word
memorandum of appeal, the words "application for special
leave to Supreme Court" should have been mentioned. The
fact that clause (c) of s. 13A merely mentions the words
"from the date of the presentation of the memorandum of
appeal or application for revision" clearly indicate that
340
the remedies contemplated by the Act are the remedies of
appeal and revision as provided for by s. 22 of the Act. In
fact, as already pointed out, the benefit conferred by s.
13A of the Act does not extend-even to the. execution pro-
ceedings and in these circumstances it cannot be assumed
that it would have applied to a Court which is beyond the
frontiers of the State and to a remedy which has been pro-
vided not by the State Legislature but by the Constitution
itself.
For these reasons, therefore, we reject the argument of
the appellant that clause (c) of s. 13A of the Act would
apply to the present appeal and that the appellant is,
therefore,entitled to the benefit of this provision on the
basis of the Civil MisCellaneous Petition filed by him. We
are clearly of the opinion, on an interpretation of the
various clauses of s. 13A of the Act and the Explanation
thereto that. the benefit under s. 13A has been intended by
the Legislature to be conferred only on the appellate and
revisional courts and even execution proceedings have been
excluded from the ambit Of the protection granted.
For these reasons I agree with the judgment proposed by
my brother Goswami, J., and dismiss the appeal but in the
peculiar circumstances of the case without any order as to
costs.
P.B.R. Appeal
dismissed.
341