- (1.) THIS is plaintiff's second appeal in a suit for ejectment and it arises out of the following circumstances,
(2.) IT is common ground between the parties that the plaintiff's father constructed the suit shop in the month of March, 1956, and it was given on rent to defendant Krishna Kumar on 1st April, 1957, and that the rent was fixed at Rs. 32/- per month. IT is alleged that the defendant did not pay the rent in time and violated the terms of his tenancy, therefore, the plaintiff, who became the owner of the shop by virtue of a gift deed executed in his favour by his father on 22nd September, 1958, served the defendant with a notice on 27th October, 1960, terminating his tenancy from 1st December, 1960 and thereafter filed the present suit for arrears of rent and ejectment. The suit was opposed by the defendant and the trial somehow continued upto 8th of March, 1963. By the time the judgment was pronounced in the case by the trial court, the period of seven years which excluded the suit property from the operation of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter called the Act) elapsed and therefore the court held that no decree for ejectment can be passed on any ground other than those mentioned in sec. 13 of the Act and since the plaintiff's suit did not fall within the ambit of the Act the suit was dismissed. Learned District Judge, Jodhpur also upheld the view of the trial court in appeal. In this second appeal the concurrent finding of fact that the suit premises were constructed in the month of March, 1956 has not been challenged. The decree of the courts below has been assailed only on the ground that the protection extended to the tenant under the Act cannot be availed of by the tenant, if the cause of action for filing a suit for ejectment under the agreement of tenancy has accrued to the plaintiff before the expiry of seven years and the suit has been actually filed before the lapse of that period. Learned counsel for the appellant, however, attempted to raise a plea that the period of seven years did not expire on the day the judgment of the trial court was pronounced, but on enquiry he could not point the exact date of the completion of the said construction and therefore he did not persue it any further. Moreover, this is purely a question of fact and it is admitted by the plaintiff that the shop was constructed in the month of March and therefore completion of the suit property before the 8th of March, 1956 could not be ruled out. In the absence of any particular date given by the plaintiff for the completion of the construction of the suit shop, this plea would not be made available to him. The next and more vital question is whether the trial court could pass a decree for ejectment even after the lapse of a period of seven years though the cause of action for ejectment had accrued to the plaintiff prior to the expiry of that period and the suit was actually filed by him much before seven years had elapsed. The argument of Mr. Bhandari, appearing for the appellant, is that sec. 13 of the Act no doubt bars the court to pass a decree or make an order in favour of the landlord, whether in execution or otherwise, for the ejectment of a tenant on any ground other than the one specified in sec. 13 of the Act if the Act applies to the suit premises but, according to him, that statutory bar would not come in the way of that landlord who, in spite of the Act, was entitled to get a decree for ejectment under the agreement of tenancy on the day when the suit was filed by him in a court of law. He further contended that section 13 of the Act in such cases cannot be applied retrospectively so as to deprive the landlord of the protection that has been extended to him by the Legislature itself by introducing cl. (e) in section 2 of the Act which specifically provides that the Act would not apply to new constructions for seven years. In order to determine the contention of Mr. Bhandari, I shall have to examine the nature and the extent of the protection given to the tenant by enacting section 13 (1) of the Act. The opening part of section 13 (1) of the Act reads as follows : "13. (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as ha is ready and willing to pay rent therefor to the full extent allowable by this Act. . . " This provision of the Act clearly contains a mandate of the Legislature that no court shall pass a decree, or make any order, for the ejectment of a tenant so long as the tenant pays the rent agreed upon between the parties to the landlord. There are certain exceptions to this provision and those exceptions are contained in various clauses of this section, but as they are not relevant for the purpose of the decision of this appeal, I need not consider them here. The only point which I have to consider is the impact of sec. 2 (e) of the Act on the provisions of sec. 13 (1 ). Looking to the scheme of the Act, it is clear that the Legislature wanted to protect the tenants from being harassed by their landlords and that protection was extended by the Legislature by giving a mandate to the court not to pass any decree or make any order, whether in execution of a decree or otherwise, in favour of a landlord for the ejectment of a tenant on the ground other than those mentioned in sec. 13 of the Act. But the Legislature was also conscious of the fact that this Act is likely to give a setback to the activities of the landlords in making new constructions and therefore an exception was introduced in favour of the landlords who make new constructions and for that purpose section 2 (e) was enacted by the Legislature, which provides : "that nothing in the Act shall apply to any premises the construction of which was completed on or after the 1st June, 1951, for a period of seven years from the date of such completion. " This concession that the Act would not govern the new constructions is available to the landlords only for a fixed term of seven years and thereafter the newly constructed premises are automatically subjected to the application of the general scheme of the Act. In this scheme of things, a landlord can therefore request the court for passing a decree or making an order for ejectment of a tenant only upto the last day of the period of seven years from the date of the completion of the building and no sooner the period of seven years expires the provisions of section 13 (1) of the Act would apply to the premises which clearly bars a court to pass a decree or order in favour of the landlord for ejectment except on any one of the grounds mentioned in that section itself. I may examine this question from the other angle also. The term "tenant" is defined in the Act. According to this definition of tenant, tenant means the person by whom the rent is, or but for a contract express or implied would be,, payable for any premises and includes any person holding or occupying the premises as a dub-tenant, or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act. This definition, in my opinion, is very wide and it covers that person also whose tenancy has been terminated, but he continues in the possession of the rented premises. The protection extended to a tenant can therefore be availed by that tenant also whose tenancy has been terminated but somehow be continued in the rented tenements till the suit is filed. The court in my opinion, is not competent to pass a decree against the person who falls within the term 'tenant' under the Act if the Act is made applicable to the premises occupied by him on any ground other than those mentioned in section 13 of the Act. The tenancy of the defendant was no doubt terminated by the plaintiff by his notice dated 27th October, 1960 with effect from 1st December, 1960, but it is admitted by both the parties that the defendant remained in possession even thereafter and on the date when the judgment was pronounced by the trial court he was in possession of the suit premises. In these circumstances, the bar imposed by section 13 (1) of the Act precludes the court in passing a decree of ejectment in favour of the plaintiff landlord. This view of mine finds support from the Supreme Court authority in Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs. Subhash Chandra Yograj Sinha (l ). That case is from the Bombay State. In that case the tenancy was terminated by afflux of time and the landlord thereafter filed a suit for possession of the premises on 25th April, 1957. It so happened that before his suit was decided by the court, the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, were extended to the area wherein the premises were situate. The question that arose for the determination of the Supreme Court was whether section 12 of that Act, which is analogous to section 13 of the Act, could apply retrospectivoly and could govern the case where the cause of action had arisen and a suit was filed thereon before the application of the provisions of that Act to that area. In that connection, their Lordships, while discussing the scope of the application of section 12 (1) of that Act, held : "section 12 (1) enacts a rule of decision, and it says that a landlord is not entitled to possession if the tenant pays or shows his readiness and willingness to pay the standard rent and to observe the other conditions of the tenancy. " There Lordships, while discussing the province of the application of sec. 12, whether it was retrospective or prospective, further observed : "but a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse. The sub-section says that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay the standard rent etc, and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned. " Learned counsel for the appellant submits that giving retrospective application to section 13 of the Act to the cases which arise in respect of the premises which have been newly constructed would mean to take away the concession which the Legislature wanted to give to them. I do not agree with this contention of learned counsel. The concession envisaged in section 2 (e) of the Act is available to the landlord upto the last day of the period of seven years and no court in spite of section 13 of the Act would deny the landlord his right to get a decree for ejectment of his tenant if he does not perform the terms of the covenant entered into between the landlord and the tenant, but no sooner the period of seven years is passed the tenant can, with all justification, seek the protection given to him by the Act, and if for one reason or the other he is in the possession of the premises after the lapse of a period of seven years, he can claim that he can be ejected from the rented premises only in accordance with the provisions of section 13 of the Act by which the legislature has, in the peculiar circumstances prevailing in the country, provided special safeguard for the tenants.
(3.) FOR the reasons given above, I do not find any substance in this appeal and it is, therefore, dismissed, but looking to the circumstances of the case, I pass no order as to costs. .;