PETITIONER:
K. BALAKRISHNA RAO AND ORS.
Vs.
RESPONDENT:
HAZI ABDULLA SAIT AND ORS.
DATE OF JUDGMENT10/10/1979
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
GUPTA, A.C.
CITATION:
1980 AIR 214 1980 SCR (1) 875
1980 SCC (1) 321
ACT:
The Tamil Nadu Buildings (Lease and Rent Control) Act
1960 as amended by the Amending Act of 1964-S. 30(iii)-Scope
of.
HEADNOTE:
In July, 1940 the plaintiffs father leased out the
building of which he was the owner, to the defendant on a
monthly rent of Rs. 950 for running a restaurant. Even after
the expiry of the period of lease in July, 1943 the
defendant continued to be in possession of the building. By
virtue of the Madras Non-residential Buildings Rent Control
order, 1946 the defendant became a statutory tenant and
under the order fair rent was fixed at Rs. 1680 p.m. In 1949
the 1946-order was replaced by the Madras Buildings (Lease
and Rent Control) Act. 1949. On the death of his father in
1955 the plaintiff became the owner of the building.
The 1949 Act was repealed and replaced by the Tamil
Nadu Buildings (Lease and Rent Control ) Act, 1960 (the
Principal Act). Section 30(iii) of the Principal Act
provided that it was not applicable to non-residential
buildings, the rental value of which, according to the
assessment of the Corporation of Madras, exceeded Rs. 400
p.m. Even so the defendant continued to be in possession of
the building. Since the building was not governed by the
Principal Act the plaintiff issued notice to the defendant
to quit and instituted a civil suit in the City Civil Court
on March 2, 1964 for eviction and damages.
In the meantime in June, 1964, by an amendment Act, the
exemption contained in s. 30 of the Principal Act in respect
of non-residential buildings was withdrawn so that from then
on non-residential buildings with a monthly rent of Rs.
400/- and above were also governed by the Principal Act. Sec
ion 3 of the Amending Act also provided that proceedings for
eviction of the tenants of such non-residential buildings
instituted in civil courts should be treated as having
abated.
In view of the amendment in December 1964 the City
Civil Court dismissed the plaintiff s suit as having abated.
Thereupon the plaintiff filed an application under O. IX, r.
9 of the Code of Civil Procedure to set aside, its order
dismissing the suit as having abated. This application was
allowed. The defendants filed additional written statements
in the City Civil Court raising the plea that the suit had
actually abated by virtue of s. 3 of the Amending Act. In
the meantime as a result of the plaintiff s application
under s. 24, Code of Civil Procedure the High Court withdrew
the suit to its file (on the death of the original
defendant, defendants 2 to 10 were impleaded as his legal
representatives).
On the issue whether the suit had abated on June 10,
1964 by virtue of s. 3 of the Amending Act the trial judge
of the High Court refused to record a finding and disposed
of the suit as if it was a fresh suit after the death of the
876
original defendant. He passed a decree for possession and
damages for use and occupation.
On appeal by the defendants the Division Bench of the
High Court held that from March 1, 1964 the original
defendant was a trespasser, that he was not entitled to the
benefit of the Principal Act, that with the coming into
force of the Amending Act the building itself was outside
the scope of the principal Act, that s. 3 of the Amending
Act did not apply to the suit and so it did not abate on
June 30, 1964 and that on the death of the original
defendant, defendants 2 to 10 were not entitled to the
protection against eviction under the Principal Act as
amended in 1973.
Allowing the appeal,
^
HELD: Section 3 of the Amending Act was applicable to
the suit as it was a proceeding instituted in the City Civil
Court on the ground that the building was exempt from the
provisions of the Principal Act by virtue of s. 30(iii)
thereof although no express allegation was made in the
plaint to that effect. [891 B]
1. (a) The view of the Division Bench that s. 3 of the
Amending Act was not applicable to this case was erroneous
in the absence of a contention by the plaintiff that s. 3
was unconstitutional. It was not for the court to ask
whether there was any justification for the legislature to
make a contrary provision in respect of the suits of the
present nature. There was every justification for enacting
s. 3 in order to give protection to the tenants against whom
suits for eviction had been filed for buildings. which were
brought within the scope of the Principal ACT by deleting
cl. (iii) of s. 30 of the Principal Act. [886G, 887B]
(b) In the context in which s. 3 of the Amending Act
was enacted it could not be said that it was not possible to
identify the proceedings to which that provision referred.
In P. J. Gupta's case this Court held that a proceeding
which had been instituted on the ground that a non-
residential building was exempt from the provisions of the
Principal Act by virtue of s. 30(iii) and was pending on the
date of publication of the amendment in the official gazette
would abate but did not consider the type of cases which
would fall within the scope of 3 of the Amending Act [888A-
B, 889G-H]
P. J. Gupta & Co. v. K. Venkatesan Merchant & ors.
[1975] 2 S.C.R. 401; held inapplicable.
(e) The words "instituted on the ground that such
building or part was exempt from the provisions of the
Principal Act by virtue of cl. (iii) of s. 30 of the
Principal Act" should be construed in the context in which
they appeared as referring to a proceeding which had been
instituted in the light of s. 30(iii) of the Principal Act
which granted exemption in respect of the buildings refer
red to therein from the operation of the Principal Act. Any
other construction would defeat the object of the Amending
Act. [890E-F]
In the instant case the original plaint was filed on
the basis that The tenancy had been terminated with effect
from the expiry of February 29, 1964. The plaintiff prayed
for the eviction of the defendant damages for use and
occupation and not the fair rent fixed under the Rent
Control law. The suit could be filed only because of the
exemption contained in s. 30(iii) of the Principal Act
877
because in the absence of such exemption no effective decree
for ejectment could be passed by the City Civil Court in
view of s. 10 of the Principal Act. [890 G-H]
2. The original defendant was not a trespasser in
possession of the premises after June 10, 1964. He became a
statutory tenant of the premises and could not be evicted
from them except in accordance with the procedure specified
in the Principal Act. The position would not have been
different even if a decree for eviction had been passed
against him before June 10, 1964 and the decree had not been
executed or satisfied in full on that date [894 C-D]
3. (a) The building in question was a building within
The meaning of that expression in s. 21'>) of the Principal
Act on the date when s. 3 of the amending Act came into
force. [896 F-G]
(b) The view of the Division Bench that the suit
property was not a "building" within the meaning of s. 2(2)
on the ground that there was no lease in force and hence it
was not let and that on that date the plaintiff had no
intention to lease it and therefore it was not to be let was
erroneous. A definition clause does not necessarily apply in
all possible contents in which the word may be found. The
opening clause of s. 2 of the Principal Act suggests that
any expression defined in that section should be given a
meaning assigned to it therein unless the context otherwise
requires. [896 B-C]
4. The original defendant became entitled to The
protection of the Principal Act on June 10, 1964 and he
could be evicted from the building only after an order was
made by the Rent Controller. The High Court did not pass an
order the suit had abated on June 10, 1964 till the death of
the original defendant on January 15, 1968. As a result of
the proceedings instituted by one or the other of the
parties the case was treated as pending although in law it
was not open to the Court to proceed with it after 10. 1964.
[896G-897A]
5. It has not permissible for the trial court to treat
the proceeding which had been instituted against the
original defendant prior to June 10, 1964 as a live
proceeding which could be converted into fresh suit
instituted against defendants No. 2 to 10 after the death of
the original defendant. An amendment of the plaint by
inclusion of a new prayer or by addition of new parties can
be made only where in the eye of law a suit is pending
before a Court. When the suit filed on March 2, 1964 stood
terminated with the coming into force of the amending Act on
June 10, 1964 there was no plaint in a live suit which could
be amended by the addition of new parties and the inclusion
of a new prayer. Therefore the addition of parties which
took place after the death of the original defendant and the
amendment of the plaint in 1973 requesting the court to pass
a decree against defendants 2 to 10 who were not' parties to
the suit prior to June 10, 1964 on a cause of action which
accrued subsequent to January 15, 1968 were without
jurisdiction. [898A-D]
B. Banerjee v. Anita Pan, [1975] 2 S.C.R. 774; held
inapplicable.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1172 of
1979.
Appeal by Special Leave from the Judgment and order
dated 1-2-1979 of the Madras High Court in O.S.A. No. 75/77.
878
G. Swaminathan, A.C. Muthana, M. Subramaniam, K.
Rajendra Chowdhary and N.N. Sivam for the Appellant.
P. Chidambaram, Shakeel Ahmed, M.N. Krishnamani and
M.A. Malik for Respondent No. 1.
S.V. Gupte and V. N. Ganpule for Respondent 2, 4-6.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The question involved in this case is
whether a suit for ejectment filed in respect of any non-
residential building or part thereof pending before any
court on the date on which the Tamil Nadu Buildings (Lease
and Rent Control) Act, 1960 (Act No. XVIII of 1960)
(hereinafter referred to as ‘the principal Act’) was amended
by the Tamil Nadu Buildings (Lease and Rent Control)
Amendment Act, 1964 (Act No. XI of 1964) (hereinafter
referred to as ‘the Amending Act’) could have been proceeded
with after that date. It arises in the following
circumstances:
Haji Mohamed Hussain Sait, the father of the plaintiff,
Haji Abdulla Sait was the owner of a building situated in
the city of Madras. He leased it out in favour of the
defendant, K. Seetharama Rao under a lease deed dated July
8, 1940 for the purpose of Running a restaurant known as
‘Modern Cafe’ in it for a period of three years with effect
from July 15, 1940 on a monthly rent of Rs. 950/-. The
agreed h period of lease expired in July, 1943 but the
defendant continued to be in possession of the building as a
tenant holding over. On the coming into force of the Madras
Non-residential Buildings Rent Control order in 1946, the
defendant became a statutory tenant of the said building and
fair rent in respect of it was fixed under that order in the
year 1946 at Rs. 1,680/- per month. The aforesaid order was
replaced by the Madras Buildings (Lease and Rent Control)
Act. 1949 which was also applicable to the said building. On
the death of the landlord Haji Mohamed Hussain Sait in 1955,
under a partition amongst his heirs the plaintiff became the
owner of the building. The protection which the defendant
was enjoying under the Act of 1949 came to an end on the
passing of the principal Act by virtue of section 35 thereof
which repealed the Act of 1949 and section 30(iii) thereof
which provided that nothing contained in the principal Act
was applicable to any non-residential building, the rental
value of which on the date of the commencement of the
principal Act as entered in the property tax assessment book
of the municipal council, district board, panchayat or
panchayat union council or the Corporation of Madras
exceeded Rs. 400/- per mensem. The defendant, however,
continued to be in possession of the building by paying the
rent every month.
879
The plaintiff issued a notice to the defendant terminating
the tenancy with effect from the expiry of February 29, 1964
and as the building was not governed by the principal Act at
that point of time, he instituted a suit in Civil Suit No.
730 of 1964 on the file of the City Civil Court, Madras on
March 2, 1964 for eviction and for damages at the rate of
Rs. 6000/- per month. The defendant filed his written
statement on May 2, 1964 before the City’ Civil Court. On
June 10, 1964, the Amending Act came into force. The
relevant part of it is reproduced below:-
“2. Amendment of section 30, Madras Act XVlII of
1960.-In section 30 of the Madras Buildings (Lease and
Rent Control) Act, 1960 (hereinafter referred to as the
principal Act)-
(i) in clause (ii) the word “or” occurring at the
end shall be omitted;
(ii) clause (iii) shall be omitted;
(iii) in the Explanation, for the words, brackets
and figures “clauses (ii) and (iii) “, the
word, brackets and figures “clause (ii)”
shall be substituted.
3. Certain pending proceedings to abate.-Every
proceeding in respect of any non-residential building
or part thereof pending before any court or other
authority or officer on the date of the publication of
this Act in the Fort St. George Gazette and instituted
on the ground that such building or part was exempt
from the provisions of the principal Act by virtue of
clause (iii) of section 30 of the principal Act, shall
abate in so far as the proceeding relates to such
building or part. All rights and privileges which may
have accrued before such date to any landlord in
respect of any non-residential building or part thereof
by virtue of clause (iii) of section 30 of the
principal Act, shall cease and determine and shall not
be enforceable:
Provided that nothing contained in this section
shall be deemed to invalidate any suit or proceeding in
which the decree or order passed has been executed or
satisfied in full before the date mentioned in this
section.”
The statement of objects and reasons appended to the
Bill which ultimately became the Amending Act read as
follows:-
“The Madras Buildings (Lease and Rent Control)
Act, 1960 (Madras Act 18 of 1960), relates to the
regulation of
880
the letting of residential and non-residential
buildings and the control of rents of such buildings
and the prevention of unreasonable eviction of tenants
therefrom in the State of Madras. Under section 30 of
the said Act, certain buildings are exempted from the
provisions of the said Act. Any non-residential
building or part thereof occupied by any one tenant if
the monthly rent paid by him in respect of that
building or part exceeds four hundred rupees is one
such building or part is exempted under the said
section 30. It has been brought to the notice of the
Government that the landlords of such non-residential
buildings, taking advantage of the exemption, referred
to above, demand exorbitant rents from the tenants of
such buildings, who mostly belong to the business
community, and threaten to evict the tenants when the
latter do not concede to the demands for such rents. In
order to provide relief to such tenants and to ensure
that the interests of trade and industries do not
suffer by demands of landlords for unreasonable and
exorbitant rents. the Government consider that the
exemption now available to any non-residential building
or part thereof fetching a monthly rent exceeding four
hundred rupees should be withdrawn. At the same time,
the Government consider that there is no need to take
away the exemption available at present to any
residential building or part thereof fetching a monthly
rent exceeding Rs. 250/-.
The Bill seeks to achieve the above object.”
The result of the amendment was that the buildings
which had been exempted from the operation of the principal
Act under clause (iii) of section 30 came within the scope
of the principal Act and the relationship between landlords
and tenants of such buildings was to be regulated thereafter
in accordance with the provisions of the principal Act.
Apparently in order to give protection to tenants of such
buildings against whom proceedings for eviction had been
instituted in civil courts, section 3 of the Amending Act
provided that such proceedings should be treated as having
abated. The proviso to section 3 of the Amending Act however
provided that nothing contained in that section should be
deemed to invalidate any suit or proceeding in which the
decree or order passed had been executed or satisfied in
full before the date mentioned in that section, the said
date being, June 10, 1964. This by necessary implication,
section 3 of the Amending Act was applicable even to the
case of a building in respect of which a decree for eviction
had been passed but had not been executed or satisfied in
full before June 10, 1964. In view of the above provision,
the City
881
Civil Court dismissed the suit as having abated by its order
dated December 4, 1964. The plaintiff filed two applications
before the City Civil Court in March, 1965-one under order 9
Rule 9 of the Code of Civil Procedure to set aside the order
dated December 4, 1964 dismissing the suit as having abated
and another under section 5 of the Limitation Act for
condoning delay in filing the application, under order 9,
Rule 9 of the Code of Civil Procedure. He also filed an
appeal in A.S. No. 266 of 1965 on the file of the High Court
of Madras against the order of the City Civil Court dated
December 4, 1964. Both the above applications were allowed
by the City Civil Court on August 3, 1965. On August 13,
1965, the defendant filed an additional written statement
before the City Civil Court raising the plea that the suit
had actually abated by virtue of section 3 of the Amending
Act. He also filed two revision petitions against the order
passed by the City Civil Court allowing the two applications
on August 3, 1965. In the meanwhile, on an application made
under section 24 of the Code of Civil Procedure by the
plaintiff, the suit was withdrawn to the file of the High
Court and it was renumbered as C.S. No. 218 of 1965. It
should be mentioned here that owing to the alteration of the
pecuniary jurisdiction of the City Civil Court, the suit
stood transferred to the file of the High Court on May 1,
1964 itself. The defendant died on January 15, 1968. He had
made will on January 7. 1968 appointing executors and
administrators in respect of his assets and issuing
directions regarding the manner in which his assets should
be disposed of. By an order dated July 20, 1970 made by the
High Court, defendants Nos. 2 to 10 who had been appointed
executors an administrators were impleaded as legal
representatives of the defendant (who was shown as defendant
No. 1 thereafter). The two civil revision petitions filed by
the defendant! against the order passed on August 3,.1965 by
the City Civil Court and the Appeal Suit No. 266 of 1965
filed by the plaintiff against the order of the City Civil
Court dated December 4, 1964 were disposed of by a Division
Bench of the High Court of Madras by a common order on June
28, 1972, the relevant part or which read as follows:-
“It is seen from the foregoing dates that at the
time of the dismissal of the suit, the lower court had
no jurisdiction to deal with suit and in that view the
counsel appearing on both sides represent that the
order dismissing the suit as having abated may be set
aside and the suit may be tried on the original side of
this Court. We accordingly allow the appeal and set
aside the order of dismissal of the suit on the ground
that the City Civil Court had no jurisdiction to deal
882
with the same on the date of dismissal and direct the
suit to be posted on the original side for being dealt
with.”
It may be mentioned here that as stated earlier, the
suit had already been withdrawn to the file of the High
Court under section 24 of the Code of Civil Procedure and
had been numbered as Civil Suit No. 218 of 1965. In July,
1973, the plaintiff sought an amendment of the plaint
praying for relief against defendants Nos. 2 to 10 on the
ground that after the death of the original defendant No. 1,
they were not entitled to continue in possession of the
building as ‘statutory tenants and the plaintiff was
entitled to a decree against them in that very suit. The
above contention was based on the definition of the
expression “tenant” in section 2(8) of the principal Act as
it stood then. After the amendment of the plaint, fresh
written statements were filed by defendants Nos. 2 to 10
raising several pleas including the pleas which had already
been raised in the written statements filed by defendant No.
1 before the City Civil Court. On the basis of the
pleadings, the trial court framed the following issues:-
“1. Is the suit maintainable ?
2. Has the plaintiff given proper notice of
termination of the suit premises ?
3. Does the suit abate by reason of Act XI of 1964 ?
4. Are not the defendants entitled to protection
under the Madras Buildings (Lease and Rent
Control) Act, 1960, as amended by Act 23 of 1973 ?
5. Whether the tenancy came. to an end upon the death
of K. Seethararma Rao ?
6. Whether the defendants have no legal interest in
the premises and consequently liable to be
rejected ?
7. To what reliefs are the parties entitled ?
At the conclusion of the trial, the learned Judge held
on issue No. 1 that the suit was maintainable, on issue No.
2 that the notice to quit had validly terminated the
tenancy, on issue No. 4 that the defendants were not
entitled to protection under the Madras Buildings (Lease and
Rent Control) Act, 1960; on issue No. S that the tenancy had
come to an end even on March 1, 1964 and on issue No. 6 that
the defendants had no legal interest in the premises. He,
however, declined to record any finding on issue No. 3 which
related to the question whether the suit had abated ar not
on June 10, 1964 by virtue of section 3 of ,; the Amending
Act. The learned Judge proceeded to dispose of the suit as
if it was a fresh suit instituted after the death of the
original
883
defendant No. 1 on January 15, 1968 even though there was no
specific issue on the question whether it cd be treated
such. This appears to be so in view of the following
observations made by the trial Judge in the course of his
judgment:-
“Under the above circumstances, if the plaintiff
files a suit today against the defendants he is
entitled to get an executable decree for possession
(without the necessity of going to the Rent Control
Court) inasmuch as defendants 2 to 10 had never become
‘tenants’ under the Act. Therefore even if the suit
filed in. the City Civil Court is held to have abated,
under the peculiar circumstances of this case, I see no
reason why I should not treat the suit before me to be
a fresh one. It is to be seen that the application
under section 24 of the Code of Civil Procedure for
transfer of the suit from City Civil Court to this
court was consented by the defendants. In A.S. No. 266
of 1965, apart from setting aside the order of
abatement passed by the City Civil Court, this Court
directed that the suit be tried on the original side of
this Court. Even if the City Civil Court had no
pecuniary jurisdiction to deal with the matter and
record abatement, the defendants could have pressed in
A.S. No. 266 of 1965 for an order by this Court that
the suit had abated. It is need less to point out that
the order that was under appeal was one by which the
City Civil Court held that the suit had abated. No
doubt that was passed without jurisdiction, inasmuch as
the pecuniary jurisdiction of that Court had been
reduced. But it is open to this Court to have held in
the said appeal itself that the suit had abated. But
the order was that the suit was to be tried on the
original side. The suit had been originally filed in
1964, that is more than 12 years ago. Under such
circumstances, I think it is wholly unnecessary to
drive the plaintiff to a fresh suit.”
On the basis of the findings recorded by him, the
learned trial Judge passed a decree for possession and
damages for use and occupation. The quantum of damages was
directed to be determined under order 20, Rule 12 of the
Code of Civil Procedure. Defendants Nos. 2 to 10 were,
however, allowed three years’ time to deliver vacant
possession of the premises. Aggrieved by the decree passed
by the trial Court, the plaintiff filed O.S.A. No. 23 of
1977 and defendant No. 2 filed O.S.A 75 of 1977 on the file
of the High Court of Madras. The plaintiff in his appeal
questioned the decree of the trial court only to the extent
it granted a period of three years to the defendants to
deliver possession
884
of the premises. Defendant No. 2 in his appeal questioned
the entire decree. Both the appeals came up for hearing
before a Division Bench of the High Court. In the course of
its judgment, the Division Bench formulated the following
points for its consideration:-
“1. What was the status of late Seetharama Rao after
the termination of the tenancy-whether he was a
trespasser or a tenant holding over or a tenant at
sufferance ?
2. Did the suit building come within the purview of
the Act and did late Seetharama Rao become a
tenant as defined in the Act, on the coming into
force of the Tamil Nadu Act XI of 1964 ?
3. Whether the suit instituted by the plaintiff
abated in view of section 3 of the Tamil Nadu Act
XI of 1964 ?
4. Whether the “tenancy” came to an end upon the
death of Seetharama Rao ?
5. Whether defendants 2 to 10 are entitled to
protection against eviction from the suit property
by virtue of the Act as amended by the Tamil Nadu
Act 23 of 1973 ?”
The Division Bench held that the status of the
defendant, Seetharama Rao from March 1, 1964 was that of a
trespasser and he was liable to pay profits or damages for
use and occupation to the plaintiff; that the defendant,
Seetharama Rao was not entitled to the benefit of the
principal Act by the coming into force of the Amending Act
as the building itself was outside the scope of the
principal Act and even if the building was within its scope,
he was not a tenant as defined in the principal Act; that
section 3 of the Amending Act did not apply to the suit in
question and hence it did not abate on June 10, 1964 and
that after the death of the defendant, Seetharama Rao,
defendants 2 to 10 were not entitled to the protection
against eviction under the principal Act as amended by the
Tamil Nadu Act No. 23 of 1973. Accordingly, it dismissed the
appeal filed by defendant No. 2. The appeal filed by the
plaintiff was also dismissed as a period of 2.6 years out of
the period of three years’ time granted by the trial court
had expired by the time the judgment in appeal was
delivered. Aggrieved by the decree passed by the Division
Bench, defendants 2 to 4 and 10 have filed the above appeal
by special leave in this Court.
The principal contention urged in support of the appeal
before us was that the suit having abated on the coming into
force of the Amending Act, it was not open to the trial
court to treat the proceedings before it as a new suit
instituted after the death of the defendant, Seetharama Rao
against defendants Nos. 2 to 10 and to pass a decree. In the
885
instant case, as noticed earlier, the trial court did not
decide the question whether the suit abated on the coming
into force of the Amending Act. The Division Bench of the
High Court has held that the provisions of section of the
Amending Act were not applicable to the suit and, therefore,
the question of its abatement did not arise.
The undisputed facts in this case are: (1) Seetharama
Rao held the suit property as a lessee before the
institution of the suit; (2) that the lease had been
terminated by the issue of a notice in accordance with
section 106 of the Transfer of Property Act; (3) that a suit
for eviction of Seetharama Rao was filed on March 2, 1964
before the City Civil Court, Madras which was competent to
try it on the date of its institution; (I) that by virtue of
alteration of the pecuniary jurisdiction of the City Civil
Court and consequential provisions made in that connection,
the suit stood transferred to the file of the original side
of the High Court with effect from May 1, 1964 and that the
suit was, therefore, deemed to be pending in law on the file
of the High Court on June 10, 1964 on which date the
Amending Act was published in the official Gazette even
though in fact the file was Lying on that date with the City
Civil Court. The other proceedings which have been referred
to above in some detail are not relevant for the purpose of
deciding the question whether the suit abated on the
publication of the Amending Act in the official Gazette.
Section 2 (ii) of the Amending Act repealed clause
(iii) of section 30 of the principal Act. Consequently any
non-residential building, the rental value of which on the
date of the commencement of the principal Act as entered in
the property tax assessment book of the municipal council,
district Board, panchayat or panchayat union council or the
Corporation of Madras, as the case may be exceeded four
hundred rupees per mensem was also brought within the scope
of the principal Act and the relationship between the
landlord and tenant of such building came to be regulated by
it with effect from June 10, 1964.
Section 3 of the Amending Act consists of three parts.
Under the first part, it directed that every proceeding in
respect of any nonresidential building or part thereof
pending before any court or other authority or officer on
the date of the publication of the Amending Act in the Fort
St. George Gazette and instituted on the ground that such
building or part was exempt from the provisions of the
principal Act by virtue of clause (iii) of section 30 of the
principal Act abated in so far as the proceedings related to
such building or part. Under the second part, it provided
that all rights and privileges which might have accrued
before such date to any landlord in respect of any non-
residential building or part thereof by virtue of clause
(iii) of section 30 of
886
the principal Act would cease and determine and would not be
enforceable. The proviso to section 3 which is the third
part of that section provided that nothing contained in
section 3 should be deemed to invalidate any suit or
proceeding in which the decree or order passed had been
executed or satisfied in full before the date mentioned in
that section.
On behalf of the plaintiff, three contentions were
urged in the appeal before the High Court in support of his
case that section 3 of the Amending Act was inapplicable to
the present case. They were (i) that section 3 of the
Amending Act had no reference to a suit at all; (ii) that
even if it had any reference to a suit, it did not apply to
a suit of the present nature and (iii) that even if it
applied to a suit of the present nature still on the
pleadings of the plaintiff. the present suit was not
affected by the said provision. The Division Bench rejected
the first contention of the plaintiff that section 3 had no
reference to a suit at all but it, however, upheld me case
of the plaintiff on the basis of the other two contentions.
Relying upon the language of section 10(l) of the principal
Act which provided that a tenant was not liable to be
evicted whether in execution of a decree or otherwise except
in accordance with the provisions of that section or
sections 14 to 16 and the decision of the Madras High Court
in Theruvath Vittil Muhammadunny v. Melepurakkal Unniri &
Anr. and the decision of this Court in B.V. Patankar & ors
v. C.G. Sastry, the Division Bench held that it was settled
law that the principal Act itself did not prohibit the
filing of a suit by a landlord for recovery of possession of
the property from a tenant but only a decree passed in the
said suit could not be executed except in accordance with
the provisions of the principal Act and if that was the true
legal position in respect of the buildings to which the
principal Act applied from its commencement’ there was no
justification whatever for the Legislature making a contrary
provision in respect of non-residential buildings to which
the principal Act became applicable by virtue of the
Amending Act. The Division Bench, therefore, held that
section 3 of the Amending Act was not applicable to the case
on hand. We are of the view that the above conclusion of the
Division Bench is erroneous. It is not for the Court to ask
whether there was any justification for the Legislature to
make a contrary provision in respect of the suits of the
present nature. It was not the contention of the plaintiff
that section 3 of the Amending Act was unconstitutional. In
that situation, the High Court had no option but to apply
the provision in question to the case on hand without going
887
into the question whether there was any justification for
enacting it. We are, however. Of the view that in the
circumstances in which the Amending Act came to be enacted,
there was every justification for enacting section 3 in
order to give protection to tenants against whom suits for
eviction had been filed from buildings which were brought
within the scope of the principal Act by deleting clause
(iii) of section 30 of the principal Act.
The third contention of the plaintiff in support his
plea that section 3 of the Amending Act was inapplicable was
formulated thus: The provisions of the aforesaid section 3
would apply only when the three conditions viz. (i) that
there should be a proceeding in respect of a non-residential
building or part thereof; (ii) that proceeding should be
pending before any court or other authority or officer on
the date of the publication of the Amending Act in the Fort
St. George Gazette; and (iii) that proceeding should have
been instituted on the ground that such building or part
thereof was exempt from the provisions of the principal Act
by virtue of clause (iii) of section 30 of the principal
Act, existed. It was argued that since the present suit did
not satisfy the third requirement referred to above as the
plaintiff had not referred to clause (iii) of section 30 of
the principal Act in the plaint, section 3 of the Amending
Act should be held to be inapplicable to it. The Division
Bench upheld the above contention observing that in order to
attract section 3 of the Amending Act, there should be an
allegation in the plaint that the building in question was
exempt from the provisions of the principal Act by virtue of
clause (iii) of section 30 of the principal Act. In order to
arrive at the above conclusion, it relied upon the decision
of the Madras High Court in M/s. Raval & Co v. K. G.
Ramachandran & Ors. and the decision of this Court in P. J.
Gupta Co. v. K. Venkatesan Merchant & ors. The passage in
the case of M/s. Raval & Co (supra) on which the Division
Bench relied was follows:
“It has to be immediately conceded that the
wording of this section can by no means be described as
happy, or free from any cloud of ambiguity. It is not
very clear how a proceeding could have been instituted
‘on the ground that such building or part was exempt
from the provisions of the principal Act by virtue of
clause (iii) of s. 30’, or what is the precise scope of
the rights and privileges which may accrue to the
landlord, and which are to cease and determine.”
888
We do not think that in the context in which section 3
of the Amending Act was enacted, it could be said that it
was not possible to identify the proceedings to which that
provision referred. In the case of P. J. Gupta & Co.
(supra), the effect of section 3 of the Amending Act is set
out as follows:-
“The obvious result of section 30(iii) of the Act,
as it stood before the amendment, was that, if the
rental value of a non-residential building,, as entered
in the property tax book of the Municipality exceeded
Rs. 400/-per mensem, a description which applies to the
premises under consideration before us the landlord
would have no right to proceed against the tenant for
eviction under section 10(2) (ii) a) of the Act.
Section 3 of the Amending Act, on the face of it,
applies to two kinds of cases. Its heading is
misleading in so far as it suggests that it is meant to
apply only to one of these two kinds. It applies:
firstly, to cases in which a proceeding has been
instituted “on the ground” that a non-residential
building “was exempt from the provisions of the
principal Act” and is pending; and secondly, to cases
where “rights and privileges, which may have accrued
before such date to) any landlord in respect of non-
residential building by virtue of clause (iii) of
section 30 of the principal Act” exist. In the kind of
case falling in the first category, the amendment says
that the pending proceedings shall abate. As regards
the second kind of case, the amendment says that “the
rights and privileges of the landlord shall cease and
determine shall not be enforceable.”
Proceeding further, this Court observed:
“It is not necessary, for the purposes of tho case
before us, to speculate about the types of cases which
may actually fall within the two wings of the obviously
inartistically drafted section 3 of the Amending Act.
It is enough for us to conclude, as we are bound to on
the language of the provision, that the case before us
falls outside it.”
The above observations were made by this Court in a
case where a proceeding had been initiated before the City
Rent Controller in December, 1964 by a landlord for eviction
of his tenant from a non-residential building situated in
the city of Madras which had been leased at Rs. 600/- per
month on the ground that the building had been sub-let. The
City Rent Controller ordered the eviction of the tenant. In
appeal, the Court of Small Causes at Madras allowed the
889
tenant’s appeal holding that the tenant had the right under
the original lease of August 21, 1944 to sub-let, and also
because even violation of a clause of the subsequent lease
of April 3, 1963, prohibiting subletting, did not entail a
forfeiture of tenancy rights under the provisions of the
Transfer of Property Act. Its view was that, in the case of
what it described as “a contractual tenancy” the provisions
of the Transfer of Property Act applied to the exclusion of
the remedies provided by the principal Act so that unless
the lease deed itself provided for a termination of tenancy
for sub-letting in addition to a condition against
subletting, the tenancy right itself could not be forfeited
or determined by such a breach of the contract of tenancy.
In exercise of its revisional jurisdiction, under section 25
of The principal Act, the High Court of Madras reversed the
judgment and order of the Small Cause Court holding that the
rights of the landlord and tenant were governed on the date
of the application for eviction by section 10(2) (ii) (a) of
the principal Act which contained a prohibition against sub-
letting which involved parting with possession. On appeal to
this Court, the decision of the Madras High Court was
affirmed holding that the effect of the amendment was that
the landlord acquired a new right to evict a tenant under
section 10(2) (ii) a). This Court held that by virtue of
section 3 of the Amending Act, all rights and privileges
which might have accrued before the date of publication of
the Amending Act in the official Gazette to any landlord in
respect of any non-residential building or part thereof by
reason of clause (iii) of section 30 of the principal Act
alone became enforceable. But the right to seek eviction of
the tenant Under section 10(2) (ii) (a) was unaffected even
though the sub-letting of the building had taken place prior
to the enactment of the Amending Act.
From a reading of he above decision, it is obvious that
This Court held that the right which the landlord acquired
under section 10(2) (ii) (a) to evict the tenant was a now
right and was not a pre-existing right which could possibly
be affected by section 3 of the Amending Act. It is,
however, clear from the observations of this Court extracted
above that a proceeding which had been instituted “on the
ground” that a non-residential building “was exempt from the
provisions of the principal Act” by virtue of clause (iii)
of section 30 of The principal Act and was pending on the
date of publication of the amendment in the official Gazette
would abate. This Court did not, however, go into the
question as to what types of cases would fall within the
scope of section 3 of the Amending Act. We are of the view
that the identification of such cases depends on the true
cons-
890
truction of the said provision. In this case, we are faced
with that question.
It is appropriate to refer at this stage to the
following passage occurring in Craies on Statute Law (Sixth
Edition) at page 99:-
“In Bratt v. Bratt [1926] 3 Addams 210, 216, Sir
John Nicholl M. R. said as follows: “The key to the
opening of every law is the reason and spirit of the
law; it is the animus imponentis, the intention of the
law-maker expressed in the law itself, taken as a
whole. Hence, to arrive at the true meaning of any
particular phrase in a statute, the particular phrase
is not to be viewed detached from its context in the
statute; it is to be viewed in connection with its
whole con text, meaning by this as well the title and
preamble as the purview or enacting part of the
statute.”
We have already referred to the object with which the
Amending Act was passed and that was to give relief against
unreasonable evictions and demands for unconscionable rates
of rents to tenants of buildings which had been originally
exempted from the operation of the principal Act. It is
clear that while doing so the Legislature gave relief also
to persons against whom suits had been filed. WE think that
the words “instituted on the ground that such building or
part was exempt from the provisions of the principal Act by
virtue , of clause (iii) of section 30 of the principal Act”
should be construed in the context in which they appear as
referring to a proceeding which had been instituted in the
light of section 30(iii) of the principal Act which granted
exemption in respect of the buildings referred to therein
from the operation of the principal Act and any other
construction would defeat the object of the Amending Act. lt
is seen that in the instant case, the original plaint was
filed on the basis that the tenancy had been terminated with
effect from the expiry of February 29, 1964. The plaintiff
prayed for eviction of the original defendant and also for a
decree for damages for use and occupation at the rate of Rs.
6000/- per month from the date of the plaint till delivery
of the vacant possession on the assumption that after the
termination of the lease the original defendant No. 1 was
not a tenant and was liable to pay damages and not the rent
of Rs. 1,680/- per month which was the fair rent fixed in
respect of the building in a former proceeding under the
rent control law in force then. The suit in the above form
could be filed for the relief referred to above only because
of the exemption granted by clause (iii) of section 30 of
the principal Act because in the absence of such exemption,
no effective decree for ejectment could be passed by the
City Civil Court in view of section
891
10 of the principal Act which provided that no tenant could
be evicted from a building except in accordance with the
provisions of section 10 and section 14 to 16 thereof. The
plaintiff could not also have asked for a decree for damages
at Rs. 6000/- per month which he had claimed in the plaint
but for such exemption. We are, therefore. Of the view that
section 3 of the Amending Act was applicable to the suit in
question as it was a proceeding instituted in the City Civil
Court on the ground that the building in question was exempt
from the provisions of the principal Act by virtue of clause
(iii) of section 30 thereof although no express allegation
was made in the plaint to that effect.
In order to get over the inevitable consequences
flowing from section 3 of the Amending Act and the effect of
an earlier decision of a Division Bench of the Madras High
Court in Moolchand Gupta v. Madras Piece Goods Merchants
Charitable Trust a novel and ingenious contention was urged
on behalf of the plaintiff, the said contention being that
after the termination of the lease with effect from February
29, 1964 by the issue of a notice under section 106 of the
Transfer of Property Act, the original defendant became a
trespasser and the premises in question ceased to be a
building as defined in section 2(2) of the principal Act. On
the above basis, it was contended that the original
defendant could not claim the benefit of any of the
provisions of the principal Act and section 3 of the
Amending Act. It was argued that since a contention of this
nature had not been considered in the case of Moolchand
Gupta (supra), it had no binding effect on the Division
Bench which heard this case. It is appropriate at this stage
to set out the passage from the judgment of the Division
Bench of the High Court in which the binding nature of
Moolchand Gupta’s case (supra) is considered:-
“In this context, Mr. Govind Swaminathan brought
to our notice a decision of a Bench of this Court in
Moolchand Gupta v. Madras Piece Goods Merchants
Charitable Trust (supra) to which one of us was a
party. In our opinion, in that decision this question
was not considered. That case also was concerned with a
non-residential building which did not fall within the
purview of the Act because of section 30(iii) of the
Act. The tenancy was terminated on 31st October, 1960
and the suit in ejectment was instituted on 19-12-1960
which ended in a compromise decree dated 31st January,
1963. The decree provided for a direction for eviction
against the quondam tenant, subject to cer-
892
tain terms thereafter mentioned, to wit, the landlord
being entitled to take possession of the portion of the
premises in occupation of one Panchand and the Bullion
Market Post Office immediately by executing the decree
in so far as The said portion was concerned and the
quondam tenant delivering possession of the rest of the
portion in his occupation on or before 31st January,
1964 and the quondam tenant paying mesne profits at Rs.
1340/- per month for the period from 1st November 1960
to 31st January, 1963 and further mesne profits at Rs.
800/- per month for the period commencing from 1st
February, 1963 till delivery of possession. The decree
also provided that if there was default in payment of
the sum of Rs. 800/- or the other sum per month, the
landlord would be entitled to execute the decree
immediately. Time for vacating was extended and before
the building was actually vacated the Tamil Nadu ‘Act
11 of 1964 intervened. The question was, whether by
virtue of the intervention of the Tamil Nadu Act 11 of
1964, the decree could be executed. The learned trial
Judge felt that in view of the fact that there had been
a surrender of a part of the holding by the quondam
tenant’s sub-tenant, there was a disruption of the
entire holding and therefore the quondam tenant would
not be a statutory tenant within the meaning of section
2(8) of the Act. The Bench disagreed with this
conclusion and held that the quondam tenant would be a
tenant under section 2(8) of the Act as he continued to
remain in possession of the property even after the
termination of the tenancy in his favour. No point was
urged before the Court that the termination of tenancy
having taken place ? before Tamil Nadu Act 11 of 1964
came into force, the definition of the term ‘tenant’ in
section 2(8) did not apply to the quondam tenant in
that case and therefore the said decision cannot be
considered to be an authority for the point which is
now raised before us.”
From the facts of Moolchand Gupta’s case (supra) it is
clear that the Division Bench of the Madras High Court had
held that a tenant whose tenancy had been terminated with
effect from October 31, 1960 and against whom a decree for
eviction had been passed prior to the date on which section
of the Amending Act came into force was entitled to be
treated as a tenant by virtue of the said provision since he
had continued to remain in possession of the property even
after
893
the termination of the tenancy. The only ground on which the
Division Bench which heard the present case did not follow
the ruling in Moolchand Gupta’s case (supra) is that the
effect of the termination of tenancy prior to the date on
which Tamil Nadu Act No. Xl of 1964 came into force had not
been considered in that case. The binding effect of a
decision, as observed by this Court in Smt. Sommavanti &
Ors. v. The Sate of Punjab & Ors does not depend upon
whether a particular argument was considered therein or not,
provided that the point with reference to which an argument
was subsequently advanced was actually decided. On going
through the decision in Moolchand Gupta’s case (supra) we
are of the view that the appropriate procedure which the
Division Bench should have followed in this case was to
refer it to a full Bench instead of bypassing the said
decision in the manner in which it has been done in this
case. The well-settled practice to be followed in such cases
is succinctly put by Das Gupta, J. in Mahadeolal Kanodia v.
The Administrator-General of West Bengal as follows:-
“Before we part with this appeal, however, it is
our duty to refer to one incidental matter. We have
noticed with some regret that when the earlier decision
of two judges of the same High Court in Deorajan’s case
(1953) 58 C.W.N. 64 was cited before the learned
Judges’ who heard the present appeal they took on
themselves to say that the previous decision was wrong,
instead of following the usual procedure in case of
difference of opinion with an earlier decision, of
referring the question to a larger Bench. Judicial
decorum no less than legal propriety forms the! basis
of judicial procedure. If one thing is more necessary
in law than any other thing, it is the quality of
certainty. That quality would totally disappear if
judges of co-ordinate jurisdiction in a High Court
start overruling one another’s decision. If one
Division Bench of a High Court is unable to distinguish
a previous decision of another Division Bench, and
holding the view that the earlier decision is wrong,
itself gives effect to that view the result would be
utter confusion. The position would be equally bad
where a Judge sitting singly in the High Court is of
opinion that the previous decision of another single
Judge on a question of law is wrong and gives effect to
that view instead of referring the matter to a larger
Bench.
894
In such a case lawyers would not know how to advise
their the clients and all courts subordinate to the
High Court would find themselves in an embarrassing
position of having to choose between dissentient
judgments of their own High Court.
As far as we are aware it is the uniform practice
in all the High Courts in India that if one Division
Bench differs from an earlier view on a question of law
of another Division Bench, a reference is made to a
larger Bench.”
Be that as it may, we are of the view that having
regard to our finding that the suit stood abated on June 10,
1964 by virtue of the provisions of section 3 of the
Amending Act, the original defendant, Seetharama Rao became
a statutory tenant of the premises in question and he could
not be evicted from the premises except in accordance with
the procedure specified in the principal Act. The position
would not have been different even if a decree for eviction
had been passed against him before June 10, 1964 and the
decree had not been executed or satisfied in full on that
date. The several decisions on which reliance was placed by
the Division Bench for determining the character of
possession of the original defendant, Seetharama Rao after
the expiry of the notice given under section 106 of the
Transfer of Property Act were not relevant for the purpose
of this case because in none of them there was any occasion
to consider the effect of a provision similar to section 3
of the Amending Act. We, therefore, do not agree with the
finding of the Division Bench that the original defendant
was a trespasser in possession of the premises in question
after June 10, 1964.
We also find it difficult to agree with the finding of
the Division Bench that the premises in question was not a
‘building’ as defined in section 2(2) of the principal Act.
The reason given by the Division Bench for holding that the
building in question was not a ‘building’ within the meaning
of section 2(2) of the principal Act was that it was not a
building which was either ‘let’ or ‘to be let’ separately
for residential or non-residential purposes. It is necessary
to extract that part of the judgment of the Division Bench
where the above question is dealt with:-
“The definition of the word ‘building’ in section 2(2)
states:
“building’ means any building or hut or part of a
building or hut, let or to be let separately for
residential or non-residential purposes ……..
895
Consequently it is not every building that comes within
the scope of the Act, but only a building let or to be
let separately for either of the two purposes.
Admittedly on 10-6-1964 the suit building was not let
because the tenancy came to an end by 29-2-1964 and
late Seetharama Rao was not occupying the building from
1-3-1964 as a tenant, as found by us. Therefore, the
only other question is, whether the suit building can
be said to be a building to be let separately for non-
residential purposes on 10-6-1964. We have already
referred to the claim of their plaintiff in his plaint
that he needed the building for his own use and the
contention of late Seetharama Rao in his written
statement dated 25-4-1964 that the plaintiff was merely
anxious to extort higher rent and for that purpose had
from time to time approached him, that although he was
prepared to pay a reasonable rent, he was not willing
to pay anything exorbitant and that it is because of
that the plaintiff had instituted the present suit on a
pretence of requiring it for his own business. With
reference to the notice Ex. P-2, late Seetharama Rao
stated that notice was merely in keeping with the
previous notices to the same effect which were not
intended to be acted upon. However before the trial
Judge the claim of the plaintiff that he required the
premises for his own need was not put in issue and no
issue was framed with reference thereto. Tho learned
Judge himself states in his judgment:
“On the relevant date, undoubtedly there was no
letting of the building and it is nobody’s case
that the same was to be let.”
The correctness of this statement found in the judgment
of the learned Judge, namely, that it was nobody’s case
that the building was to be let has not been challenged
either in the ground of the appeal filed before this-
Court or in the arguments before us. Therefore we have
to proceed on the basis that it was not the case of the
defend its that the plaintiff wanted to let the
premises in question. This Court has construed the
relevant expression, namely, ‘building to be let’
occurring in section 2(2) of the Act as meaning
‘building intended to be let’ in R. K. Veerappa Naidu &
Anr. v. N. Gopalan (1961 1 M.L.J. 223. In the present
case on 10-6-1964 it was not the case of the defendants
that the building was intended to be let and it was not
also their case that at any stage thereafter the
plaintiff intended to let the
896
suit building. Therefore, it follows that the suit
building did not come within the purview of the Act as
a result of the amending Act 11 of 1964.”
The reason given by the Division Bench for holding that
the building in question was not a ‘building’ within the
meaning of section 2(2) of R the principal Act appears to be
a strange one.
A definition clause does not necessarily in any statute
apply in all possible contexts in which the word which is
defined may be found therein. The opening clause of section
2 of the principal Act itself suggests that any expression
defined in that section should be given the meaning assigned
to it therein unless’ the content otherwise requires. The
two-fold reasoning of the Division Bench for holding that
the building in question was not a ‘building’ is that on
June 10, 1964 (i) there was no lease in force and hence it
was not let and (ii) that on that date the plaintiff had no
intention to lease it and therefore it was not to be let. We
are of the view that the words “any building….. let.. ”
also refer to a building which was the subject matter of a
lease which has been terminated by the issue of a notice
under section 106 of the Transfer of Property Act and which
has continued to remain in occupation of the tenant. This
view receives support from the definition of the expression
‘tenant’ in section 2(8) of the principal Act which includes
a person continuing in possession after the termination of
the tenancy in his favour. If the view adopted by the
Division Bench is accepted then it would not be necessary
for a landlord to issue a notice of vacancy under section 3
of the principal Act when a building becomes vacant by the
termination of a tenancy or any the eviction of the tenant
when he wants to occupy it himself. In law he cannot do so.
He would be entitled to occupy it himself when he is
permitted to do so under section 3(3) or any of the
provisions of section 3A of the principal Act. This also
illustrates that the view of the Division Bench is
erroneous. We, therefore, hold that the building in question
was a ‘building’ within the meaning of that expression in
section 2(2) of the principal Act on the date on which
section 3 of the Amending Act became operative.
It thus becomes clear that the Suit came to an end in
the eye of law on June 10, 1964 and the original defendant
became entitled to the protection of the principal Act. He
could thereafter be evicted from the building only after an
order was made, by the Controller under any of the
provisions of the principal Act which conferred jurisdiction
on him to do so. As mentioned earlier, no formal order was
passed by the High Court on its original side stating that
the suit had abated on June 10, 1964 till the death of the
original defendant which took
897
place. On January 15, 1968. Owing to certain proceedings
which were instituted by one or the other of the parties,
the case was treated as a pending proceeding on the file of
the High Court although in law, it was not open to the court
to proceed with it after June 10, 1964.
The next significant step that was taken before the
High Court was the application made by the appellant in the
year 1973 requesting the Court to permit him to amend the
plaint by the inclusion of a prayer for possession against
defendants Nos. 2 to 10 on the basis that they were not
‘tenants’ as defined in section 2(8) of the principal Act.
That application was allowed. Defendants Nos. 2 to 10
thereafter filed their written statements and the issues
framed in the suit were recast in the light of the
pleadings. The learned trial Judge, as stated above,
disposed of the suit as a fresh one as against defendants
Nos. 2 to 10 without recording a finding on the question
whether it had abated or June 10, 1964. The learned trial
Judge does not state in the course of its judgment the date
from which the proceeding was treated as a fresh suit. In
the instant case, the suit itself was originally flied on
March 2, 1964. The original defendant died on January 15,
1968. Even if the proceeding was treated as a fresh suit
against defendants Nos. 2 to 10, it could be treated as such
only from a date subsequent to January 15, ‘968 on which
date the original defendant did since the contention of the
plaintiff which found favour with the learned single judge
and the Division Bench of the High Court was that defendants
Nos. 2 to 10 who were legal representatives of the original
defendant could not succeed to the tenancy right of the
original defendant. In the instant case, since the plaintiff
based his claim on the above contention in the year 1973
when he made the application for 1 amendment of the plaint,
the date of the institution of the fresh suit could not be
earlier than the date on which the application for amendment
was made even if it was permissible to do so. By his
judgment the learned single Judge passed a decree for
possession against defendants Nos. 2 to 10 and for damages
to be determined under order 20 Rule 12 of the Code of Civil
Procedure without specifying the date from which damages
would be payable. In the absence of such – specification,
the plaintiff became entitled to claim damages under order
20, Rule 12 of the Code of Civil Procedure even from the
date of the suit i.e. March 2, 1964. The Division Bench by
its judgment affirmed that part of the decree of the trial
court. The direction for payment, of mesne profits given in
the decree of the trial court without specify the date from
which damages should be computed could not have been passel
consistently with its judgment in which it had been stated
that the suit was being treated as a fresh suit. This
defect, however is of a 3-473SCI/79
898
minor character. What is more fundamental in this case is
that it was not permissible for the trial court to Treat the
proceeding which had been instituted against the original
defendant prior to June 10, 1964 as a live proceeding which
could be converted into a fresh suit instituted against
defendants NOS. 2 to 10 after the death of the original
defendant, Seetharama Rao. An amendment of a plaint by
inclusion of a new prayer or by addition of new parties can
be made only where a suit is pending before a court in the
eye of law. On June 10, 1964, the entire proceedings
commenced with the plaint filed on March 2, 1964 stood
terminated and there was no plaint in a live suit which
could be amended by the addition of new parties and the
inclusion of a new prayer. We are of the view that the
addition of new parties which took place after the death of
Seetharama Rao and the amendment of ‘ the plaint in the year
1973 and the passing of the decree by the trial Judge
against defendants Nos. 2 to 10 who were not parties to the
suit prior to June 10, 1964 on a cause of action which
accrued subsequent to January 15, 1968 were all without
jurisdiction. It was, however, argued on behalf of the
plaintiff before us relying upon the decision of this Court
in B. Banerjee v. Anita. Pan that since the parties had gone
to trial with open eyes knowing fully that the plaintiff was
relying upon a cause of action which accrued in his favour
after the death of the original defendant and on the basis
of the amendment of the plaint in the year 1973, the decree
passed by the trial court and affirmed by the Division Bench
of the High Court should not be interfered with in the
interests of justice and equity. It is no doubt true that in
the decision referred to above, this Court permitted the t
parties to file fresh pleadings and to prosecute the
proceedings after the disposal of the case by this Court
having regard to the delay which had already ensued. It was
possible for this Court to do so in that case because there
was no legal impediment as we have in the present case. To
repeat, in the present case, the suit abated by reason of an
express provision in a statute on June 10, 1964, the new
cause of action on which the plaintiff depended accrued on
January 15, 1968 i.e. the date of the death of the original
defendant, the plaint itself was amended in the year 1973
claiming relief against defendants Nos. 2 to 10 not as legal
representatives who inherited the tenancy right of the
original defendant but as persons who had not inherited the
said right . It is thus seen that there was no proceeding in
the eye of law rending after June 10, 1964, the cause of
action on the basis of which relief was claimed was totally
different and the persons against whom the relief was sought
were also different. Parties could not either by
899
consent or acquiescence confer jurisdiction on court when
law had taken it away.
In these circumstances, we feel that the only course
which we can adopt is to set aside the findings of the trial
court and of the Division Bench on issues relating to the
claim of the plaintiff to get possession of the property
from defendants Nos. 2 to 10 on the ground that they were
not statutory tenants i.e. issues Nos. 4 and 6 and to leave
the questions involved in them open reserving liberty to the
parties to agitate them in appropriate proceedings. In view
of our finding on issue No. 3, we hold that the decree
passed by the trial court and the appellate court are
unsustainable.
We accordingly allow the appeal, set aside the decrees
passed by the trial court and by the Division Bench of the
High Court and dispose of the suit as having abated on June
10, 1964. The findings on issues Nos. 4 and 6 are set aside
without expressing any opinion on them reserving liberty to
the parties to agitate the question in appropriate
proceedings. Having regard to the peculiar circumstances of:
the case, we direct the parties to bear their own costs
throughout.
P.B.R. Appeal allowed.
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