M.C. JAIN, J. - (1.) - By order dated July 8, 1980, the learned Single Judge has referred this revision petition to the larger Bench as the revision petition involves an important question of law as to the interpretation of Sec. 15 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act') as amended by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975 (Ordinance No. 26 of 1975) promulgated on September 29, 1975, which was subsequently replaced by the Rajasthan Premises (Control of Rent and Eviction (Amendment) Act, 1976 (Act No. 14 of 1976).
(2.) THE facts leading to the present revision petition are, briefly stated as under : - THE non-petitioner No. 1 Barkat Ali instituted a civil suit No. 344 of 1967 against the petitioners for eviction on the ground that he needs the suit-shop for carrying on business of stationery by his son Abbas Ali and the suit was decreed on August 19, 1968. THE decree-holder obtained possession of the suit-shop on August 5, 1972. THE petitioners submitted an application under Sec. 15 of the Act on the ground that after obtaining the possession of the suit-shop, the same has not been put to use or purpose for which, the decree was obtained. THE decree-holder's son Abbas Ali continues to do his business at Baneda. THE decree holder has let-out the suit-shop on a monthly rent of Rs. 51/- to non-petitioner No. 2 M/S Suwalal Kanhaiyalal and Company on November 5, 1973. It was alleged that the decree-holder has played fraud in obtaining the decree. It was prayed that possession of the suit-shop may be restored to the petitioner. THE application was filed on January 10, 1974. The decree-holder submitted reply to the application denying the allegations. It was averred that Abbas Ali occupied the suit-shop and carried on business there for about 15 months and, there-after, on account of ill-health, he left Bhilwara. It was also averred that the decree holder's father Abdul Rehman had gifted the shop to Liyaqat Ali and Ahmed Ali. Both Liyaqat Ali and Ahmed Ali had let-out the suit-shop to non-petitioner No. 2. An objection was taken that application under Sec. 15 of the Act is not maintainable. The learned Civil Judge, Bhilwara after recording the evidence of the parties, dismissed the application on November 13, 1976. The learned Civil Judge found that Sec. 15 of the Act is retrospective in operation. However, he further found that the appellants have failed to prove that the decree-holder did not use the suit-shop for carrying on business. He further found that the suit-shop had been let out by Liyaqat Ali and the will (Ex. 1) does not appear to be forged He dismissed the application, considering the nature of the provision to be discretionary. It was observed by him that the tenant-non-petitioner No. 2 has taken the premises on rent and is doing his business at the suit-shop. The shop was let out by Liyaqat Ali and this fact has also appeared on record that the title vests in Liyaqat Ali and Ahmed Ali. It was also considered by the learned Civil Judge that the petitioners are already doing business in a nearby shop. On these basis, the learned Civil Judge did not think it proper to restore possession of the suit-shop to the petitioners, even assuming that the suit-shop was not used for business by Abbas Ali. The petitioner preferred an appeal against the order of the learned Civil Judge. The learned District Judge, however dismissed the appeal on February 17, 1978. The learned District Judge found that the provision of Sec. 15 is not retrospective in operation. He further found that it is proved that Abbas Ali did business in the suit-shop within the period as provided in Sec. 15 of the Act. He further found that the petitioners have failed to prove that the suit-shop was let out within a period of one year i.e. before August 5, 1973. In view of these findings, the appeal was dismissed. Dis-satisfied with the order of the learned District Judge, the petitioners have filed this revision petition. It is an admitted case of the parties that the suit-shop was let out to non-petitioner No. 2 on 5.11.1973. The rent-note in respect of the suit-shop, has been placed on record. Sec. 15 of the Act. as it stood on January 10,1974 i.e. the date of filing of the application, was as under: - "Sec. 15-Eviction from premises required for personal use. (2) Where a decree for eviction of any premises has been passed by the Court on any of the grounds specified in Cl. (h) of sub-section (1) of Section 13 and the landlord fails to utilise the premises to the use or purpose for which such eviction shall have been decreed within two months of obtaining possession thereof or at any time within one year of obtaining possession of the premises lets the whole or any part thereof to any person otherthan evicted tenant, the Court which passed the decree may on the application of the evicted tenant place him in possession of the premises." By Section 11 of the Amending Ordinance No. 26, of 1975 for Section 15 of the Principal Act, the following section was substituted; namely- "15. Restoration of possession to evicted tenant;- Where a decree for eviction of any premises has been passed by the court against a tenant on any of the grounds specified in clause (h) of sub-section (1) of section 13 and the landlord fails to utilise the premises to the use or purpose for which such eviction shall have been decreed within two months of obtaining possession thereof, or in the case of premises let out for residential purposes, at any time within one year and in the case of premises let out for commercial or business purposes, at any time within five years of obtaining possession, lets the whole or any part thereof to any person otherthan the evicted tenant, the court which passed the decree may, on the application of the evicted tenant, place him in possession of the premises." The Ordinance was replaced by the Amending Act No. 14 of 1976. By section 11 of the Amending Act, it was provided that for Sec. 15 of the Principal Act, the above quoted section as amended by the Ordinance, shall be substituted.
(3.) IN the statement of objects and reasons, it was stated that one of the change brought about in the Principal Act by the Ordinance, was - "(9) If the landlord failed to occupy the premises from which a tenant had been got ejected on the ground of personal necessity within two months of obtaining possession thereof or re-let such premises within one year in case of residential premises or within five years in case of commercial premises, the court might restore the possession of the same to the evicted tenant." Amendment in Sec. 15 of the Act was made on September 29, 1975, when the application of the petitioners was pending in the court of Civil Judge, Bhilwara. A perusal of un-amended and amended provisions of Sec. 15 of the Act, would show that a change has been brought about in respect of the premises let out for commercial or business purposes. Under the amended provision, the application could be presented by the evicted-tenant: Firstly, when the landlord fails to utilise the premises for the use or purpose for which eviction was sought, within a period of two months from obtaining possession; or Secondly, when the land-lord, at any time within five years of obtaining possession of the premises, lets the whole or any part thereof to any person other than the evicted tenant. In either of two situations, the application by the evicted tenant could be filed. When either of the two conditions is proved, it is discretionary with the court to allow the application and restore possession to the evicted tenant, in case, the evicted tenant fails to prove that the premises were not used within two months of obtaining the possession thereof to the use or purpose for which, eviction was sought or when the evicted tenant fails to prove that the premises were let out within one year, then the application of the tenant is liable to be dismissed. In the amended provision, the period of 1 year has been extended to 5 years in case of the premises let out for commercial or business purposes. ;