- (1.) THIS is an execution second appeal by the judgment-debtors against an order of the executing court holding that the decree for eviction passed against them on 21. 1. 63 could be executed. The order was confirmed on appeal by the Senior Civil Judge No. 1, Jodhpur.
(2.) THE decree holders-respondents brought a suit for ejectment against the appellants on the ground of more than 3 defaults which was decreed by the trial court on 21. 1. 63. At the time of the filing of the suit 5 months' rent was in arrears. THE decree was confirmed on appeal by the District Judge on 21. 7. 64 and the second appeal was dismissed by this Court on 11th August, 1964. On 15. 9. 64 the present execution application was filed. THE decree-holders were however not able to obtain possession till 9. 6. 65 when the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was amended by Act No. 12 of 1965. Sec. 13 (1) (a) of the ammended Act runs as follows : - "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 he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied - (a) that, the tenant has neither paid nor tendered the amount of rent due from him for six months - On 6. 8. 65 the appellants filed an application that they could not be evicted in execution of the decree as it was not based on their being in arrears for six months and they were ready and willing to pay the rent. In the application dated 6. 8. 65 the appellants stated that they had paid a sum of Rs. 1,000/- towards the decree to the decree-holders and prayed that the payment may be certified. On 21. 8. 65 the executing court directed the appellants to deposit the arrears of rent and costs etc. in court by 23. 9. 65 and directed the application dated 6. 8. 65 to be put up for decision on 24. 9. 65. No amount was deposited in court by the judgment-debtors although as appears from their subsequent application dated 21. 9. 65, a sum of about Rs. 700/- was due towards the decree even after allowing the sum of Rs. 1000/- which they alleged that they had paid to the decree-holders towards this decree. On 24. 9. 65 the decree-holders filed, an application in which it was stated that the appellants had not paid them anything under the present decree. Both the courts below held that the provision contained in sec. 13 (l) (a) was not retrospective. Against the above order the present execution second appeal has been filed. On behalf of the appellants it is contended that the provision contained in sec. 13 (l) (a) is retrospective. Reliance is placed on a decision of their Lordships of the Supreme Court in S. B. K. Oil Mills vs. Subhash Chandra (l ). Sec. 12 (1; of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 came up for interpretation. That section was to the effect that a landlord is not entitled to possession if the tenant pays or shows his willingness to pay the standard rent and to observe other conditions of the tenancy. It was held that the point of time when the sub-section will operate is when the decree for recovery of possession will have to be passed and was applicable to pending suits. By the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 two earlier Acts were repealed by sec. 50 of the Act. The first proviso to that section enacted - "provided that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply. . . . . . . . . . . . which are pending in any court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act or shall be continued in such Courts as the case may be, and all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings. " Their Lordships observed - "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. (See Craies on Statute Law, 5th Edn. , p. 365 ). 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 possesssion to the landlord, if the tenant fulfils the con ditions above mentioned. " It is contended that the above decision is applicable to the interpretation of sec. 13 (l) (a) which goes even farther than sec. 12 (1) of the Bombay Act and expressly lays down that notwithstanding anything contained in any law or contract no court shall pass any order in execution of a decree evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act unless it is satisfied that the tenant has neither paid nor tendered the amount of rent due from him for six months. On behalf of the respondents two contentions were raised. The first contention is that the provision contained in sec. 13 (1) (a) so far as it relates to the execution of a decree passed before the coming into force of the amended Act is not retrospective. The amended Act came into force on 9. 6. 65. Sec. 13 (l) (a), 13 (4) and 13 (5) of the unamended Act dealt with cases of eviction based on the ground of default. The unamended provisions ran as follows - "sec. 13 (1) Notwithstanding anything contained in any law or contract no court shall pass any order, in favour of a landlord. , whether in execution of a decree or otherwise, evicting the tenant, so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied - (a) that the tenant has neither paid nor tendered the amount of rent due from him for any two months. " . . . . . . . . . . . . . . . Sec. 13 (4) - In a suit for eviction on the ground set forth in clause (a) of sub-sec. (1), the court shall on the first day fixed for the hearing thereof by order determine the amount of rent due from tenant, which is in arrears, upto the date of such order as also the amount of interest thereon at the rate of six percent per annum and of the costs of the suit allowable to the landlord and direct the tenant to pay the aggregate of the amount so specified on or before a date fixed thereby, which shall not be beyond the fifteenth day from but exclusive of the date thereof. If on or before the date so fixed for payment, the tenant deposits in court the aggregate of such amounts, the suit shall be dismissed and the sum so deposited shall be paid to the landlord. Provided that a tenant shall not be entitled to the benefit of protection against eviction provided by this sub-section if he has made default in the payment or tender of the amount of rent due from him for any two months on three occasions within a period of 18 months. "sec. 13 (5) - If, on the first day fixed for the hearing of such a suit the tenant expresses his intention to contest the same or if he fails to make the payment referred to in sub-sec. (4), the court shall proceed with the hearing of the suit, and may, on the application of the landlord made at any stage of the suit, and after giving an opportunity to the parties to be heard make an order requiring the tenant to deposit in court month by month the rent at the rate at which it was paid. On his failure to deposit the rent for any month by the fifteenth day of the next following month, the court shall order the defence against eviction to be struck out and the tenant to be placed in the same position as if he had not defended the suit. " The corresponding provisions are contained in amended sec. 13 (l) (a), 13 (4) to (8) which run as follow - "sec. 13 (1 ). Notwithstanding any thing 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 he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied: - (a) that the tenant has neither paid nor tendered the amount of rent due from him for six months;" (4) In a suit for eviction on the ground set forth in clause a) of sub-sec. (1), with or without any of the other grounds referred to in that sub-section, the tenant shall, on the first day of hearing or on or before such date as the court may, on an application made to it, fix in this behalf or within such time, not exceeding two months, as may be extended by the court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent,thereto upto the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable up to the date of deposit and shall thereafter continue to deposit or pay, month by month by the fifteenth of each succeeding month a sum equivalent to the rent at that rate. (5) If in any suit referred to in sub-sec. (4), there is any dispute as to the amout of rent payable by the tenant, the court shall determine, having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant, within fifteen days from the date of such order, in accordance with the provisions of sub-sec. (4 ). (6) If a tenant fails to deposit or pay any amount referred to in sub-sec. (4) or sub-sec. (5 ). on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. (7) If a tenant makes deposit or payment as required by sub-sec. (4) or sub-sec. (5) no decree for eviction on the ground specified in clause (a) of sub-section (1) shall be passed by the court but the court may allow such costs as it may deem fit to the landlord. Provided that a tenant shall not be entitled to any relief under this sub-section if having obtained such benefit or benefit under sec. 13-A in respect of any accommodation, if he again makes a default in the payment of rent of that accomodation for six months. (8) Where any decree or order for the eviction of a tenant is made on the ground specified in sub-sec. (1), the landlord shall not be entitled to obtain possession thereof before the expiration of two months from the date of the decree or order. Reference is made to sec. 6 of the Rajasthan General Glauses Act which provides that where any Rajasthan law repeals any enactment, then unless a different intention appears the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability etc. and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the repealing law had not been passed. Reliance was also placed on the following passage from Corpus Juris cited at page 469 of Bindra's Interpretation of Statutes, 1965 Edition : - "in determining the effect of an amendatory Act on transactions and events completed prior to its enactment, it is necessary to distinguish between provisions added to the original Act by the amendment, and provisions of the original Act repealed by the amendment, and provisions of the original Act re-enacted thereby. In accordance with the rule applicable to original Acts, it is presumed that provisions added by the amendment affecting substantive rights are intended to operate prospectively. Provisions added by the amendment that affect substantive rights will not be construed to apply to transactions and events completed prior to its enactment unless the Legislature has expressed its intent so that effect or such intent is clearly implied by the language of the amendment or by circumstances surrounding its enactment. However, as in the case of the original Acts, in the absence of a saving clause or stature or some other clear indication that legislative intent is to the contrary, provisions added by the amendment that affect procedural rights - legal remedies - are construed to apply to all cases pending at the time of its enactment and all those commenced subsequent thereto,' whether the substantive rights sought to be enforced thereby accrued prior or subsequent to the amendment, unless a vested right would thereby be impaired But the new provisions will not affect a proceeding entirely closed before the amendment became effective. In accordance with the rule applicable to repealing Acts, the general rule against the retrospective construction of statutes does not apply to those provisions of the original Act repealed by the amendment whether affecting substantive or procedural rights. In the absence of a saving clause, or statute, or some other clear indication that the legislature intent is to the contrary, all rights dependent on the repealed provisions of the original Act which had not vested or been prosecuted to completion prior to the enactment of the amendment are destroyed. " The decision of their Lordships of the Supreme Court in Moti Ram vs. Suraj Bhan (2) was also relied upon. There an application was made by the landlord to the Rent Controller for the eviction of the tenant under sec. 13 of the East Punjab Urban Rent Restriction Act 1949. This application was based inter alia on the ground that the landlord wanted to re-construct the shop for which necessary sanction had been obtained by him from the Municipal Committee of Gurgaon. Sec. 13 (3) (a) (iii) as it stood at the date of the application provided that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession in the case of any building if he required it for the re-construction of that building or for its replacement by another building or for the erection of other buildings. Before the written statement was filed by the tenant this provision was substantially modified and the amended sec. 13 (3) (a) (iii) read thus - "in the case of any building or rented land, if he requires it to carry out any building work at the instance of the Government or Local Authority or any Improvement Trust under some improvement or development scheme or it has become unsafe or unfit for human habitation. " It was held by their Lordships that the provision of sec. 13 (3) (a) (iii) as it stood at the date of the application and not the amended provision governed the suit. They observed - "it is plain that by the amendment Legislature has imposed rigorous limitations on a landlord's right to recover possession in the case of any building or rented land. The question is whether this amendment can be said to be retrospective in operation. It is clear that the amendment made is not in relation to any procedure and cannot be characterised as proced-ural. It is in regard to a matter of substantive law since it affects the substantive rights of the landlord. It may be conceded that the Act is intended to provide relief to the tenants and in that sense is a beneficial measure and as such its provision should be liberally construed; but this principle would not be material or even relevant in deciding the question as to whether the new provision is retrospective or not. It is well-settled that where an amendment affects vested rights the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a matter of necessary implication, The amending Act obviously does not make the relevant provision retrospective in terms and we see no reason to accept the suggestion that the retrospective operation of the relevant provision can be spelt out as a matter of necessary implication. We ought to add that Mr. Bindra has not argued that the initial provision in sec. 13 (1) which is retrospective is attracted in interpreting the amended provision in sec. 13 (3) (a) (iii ). Such a contention would of course be wholly untenable. " It may be mentioned here that sec. 13 (1) of the Act provided inter alia that a tenant in possession of a building shall not be evicted therefrom except in accordance with the provisions of that section. The argument on behalf of the decree-holders is that the last sentence in the above observation particularly goes to show that even if the initial provision of a section is retrospective the amendment of it is not necessarily retrospective. In other words it is contended that even though the unamended sec. 13 (1) (a) of the Rajasthan Act may have been retrospective when first enacted the amendment of it is not retrospective. The decision of their Lordships of the Supreme Court in Karam Singh Sobti vs. Sri Partap Chand (3) was also cited on behalf of the decree-holders. Sec. 57 (2) of the new Act in that case provided that notwithstanding the repeal of the Act of 1952 all pending proceedings will be disposed of in accordance with the provisions of the earlier Act. There was, however, a proviso to sec. 57 (2) which ran.- "provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which sec. 54 does not apply, the court or other authority shall have regard to the provisions of this Act of 1958. " It was held by their Lordships that the proviso should be read harmoniously with the substantive provision contained in sub-sec. 2 and the only way of harmonising the two was to read the expression "shall have regard to the provisions of this Act, " as merely meaning that "where the new Act has slightly modified or clarified the previous provisions these modifications and clarifications should be applied. " The above principle was reiterated by their Lordships in Brij Kishore vs. Vishwa Mitter (4 ). Another argument advaced on behalf of the decree-holders is that the legislature enacted a retrospective provision in sec. 13-A of the amended Act. This provision runs as follows - 13-A. Special provisions relating to pending and other matters - ¦ "notwithstanding anything in sec. 13, sub-sec, (l) (a), or sub-sec. (4) and the proviso thereto or sub-sec. (5) as they existed before the commencement of the amending Act - (a) no court shall, in any proceeding pending on the date of commencement of the amending Act, 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 or 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 commencement of the amending Act, notwithstanding 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 percent 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 clauses (a) and (b) shall mutatis mutandis apply to ail appeals, or applications for revisions, preferred or made, after the commencement of the amending Act, against decrees for eviction passed before such commencement with the variation that in cl. (b), for the expression "from the date of commencement of the amending Act, "the expression"from the date of the presentation of the memorandum of appeal or application for revision" shall be substituted; (d) if in any proceeding, any decree for eviction on the ground only of non-payment of rent has been passed on or after the 21st March, 1965. but before the date of commencement of the Amending Act, and in which no appeal or application for revision has been preferred or made the court may, on the application of the tenant made within thirty days from the date of commencement of the amending Act, re-open the proceeding if the tenant deposits all arrears of rent upto the date of such application as also the amount of interest thereon at six per cent per annum and costs of the suit; and thereafter such proceeding, shall be disposed of as if such deposit of rent constituted a valid payment to landlord in time. ',
(3.) RELIEF was given to tenants against whom suits, appeals, or revision applications were pending or had not become time barred. RELIEF was also provided to tenants against whom decrees for eviction based on the ground of non-payment of rent were passed on or after 21st March, 1965 but before the commencement of the amending Act in which no appeal, or application for revision had been preferred or made. The contention is that if the Legislature intended to give retrospective relief to tenants against whom decrees for eviction were passed before 21st March, 1965 but who had not been evicted, the Legislature would have made a specific provision for it in sec. 13-A. The Rajasthan Premises (Control of Rent and Eviction) Act, was first enacted in 1950. It has been amended not less than ten times. By the expression 'unamended Act' used above is meant the Act as it stood just before its amendment by Act No. 12 of 1965 and the expression 'amended Act' has been used for the Act as it stood after the last amendment. The amendments made in 1965 are confined to suits for eviction based on the ground of non-payment of rent. Now so far as the question as to whether a pending suit would be decided under the unamended Act or the amended Act is concerned, it does not arise in view of the provisions contained in sec. 13-A. It may however be pertinent to examine what the position would have been if sec. 13-A had not been inserted in the amended Act. In my opinion, the decision of their Lordships of the Supreme Court in Moti Ram vs. Suraj Bhan (2) would have applied to such a case and not the decision in S. B. K. Oil Mills vs. Subhas Chandra (l ). As pointed out, in the former cases there is a difference in this respect between an Act which is enacted for the first time and an existing act, which is only amended. In S. B. K. Oil Mills vs. Subhash Chandra (l) the Bombay Rent Restriction Act, 1939 and the Bombay Rent, Hotel Rates and Lodging House Rates (Control) Act, 1949 were repealed and the Bombay Rent, Hotel Rates and Lodging House Rent Control, Act, 1947 was enacted in their place. It was in these circumstances that their Lordships held on the basis of the language used in sec. 12 (1) of the Act that pending suits shall be decided in accordance with the provisions of the new Act. When the Rajasthan Act was first enacted in 1950, this decision was applicable to it and all pending suits which had been instituted under other Acts had to be disposed of in accordance with the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. But when the Rajasthan Act was amended in 1965 and clause (a) of sec. 13 (1) was amended, then it is the decision in Moti Ram vs. Suraj Bhan (2), which must apply, and pending suits would have been decided in accordance with clause (a) as it stood at the time of their institution if sec. 13-A had not been inserted. However, we are concerned in the present case with the execution of a decree, which was finally passed before the amending Act came into force and to which the provisions of sec. 13-A are not applicable. In this connection reliance is placed on the following language of sec. 13 (l) (a) on behalf of the judgment-debtors : "notwithstanding anything contained in any law or contract, no Court shall. . . . . . . . . . . . . . . . . make any order in favour of a landlord. . . . . . . . . . . . . . . . . in execution of a decree. . . . . . . . . . . . . evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied - (a) that the tenant has neither paid nor tendered the amount of rent due from him for six months. " The judgment-debtors against whom a decree was passed under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, cannot avail of the above provision as tenant has been defined in sec. 3 (vii) as follows - "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 sub-tenant, or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act. " A person against whom a decree for eviction has been passed under the Rajasthan Act of 1950 is no longer a tenant within' the meaning of the above definition as his tenancy is determined under the provisions of this Act. It is only a person against whom a decree is passed under some other law and who continues in possession despite the decree under some other law who can be treated as tenant within the meaning of this Act. The above provision is thus only applicable to a person against whom a decree is passed under some law other than the Rajasthan Permises (Control of Rent and Eviction) Act, 1950. This provision is thus not -applicable to the judgment-debtors against whom a decree was passed under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. In Roop Ram vs. Mohan Lal (5) Modi J. also held that the above provision contained in sec. 13 (1) could only apply to a decree which had not been passed under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. He observed as follows : - "if the interpretation put forward by learned counsel for the respondent is accepted as correct, it would appear that all decrees passed under this act, that is aftert he commencement thereof, in so far as they relate to eviction would be unexecutable until they succeed in passing a further test in the executing court, namely, that the executing court itself is satisfied that any of the conditions mentioned under sec. 13 for eviction are fulfilled in a given case. Such a position, in my respectful judgment would be intolerable and opposed to all principles of executing of deerees ; one such well-established principle being that the executing court cannot go behind a decree. I recognize that the Legislature has provided a sort of an exception to this principle in the case of decrees which were passed before the commencement of the Rajasthan Act, and enacted sec. 26 which has already been cited above. To that extent I am prepared to accept that the general principle has been relaxed and a decree for eviction of a tenant passed before the commencement of this Act cannot be executed so long as the Rajasthan Act remains in force except that it stands justified on any of the grounds mentioned in sec, 13. But the question is whether the same principle should be applied or extended to decrees passed after the commencement of the Rajasthan Act and under this Act itself. There is no clear provision in the Act in this regard, and I should be extremely reluctant to put an interpretation on sec. 13 which should reduce or whittle down the efficacy of the decrees passed after the commencement of the Rajasthan Act in the manner sought unless I am compelled to adopt that course. Unfortunately sec, 13 is not very artistically worded. But a careful analysis of that section shows that it means no more than this; in the first place, it provides that notwithstanding anything contained in any law or contract, no court shall pass a decree evicting a tenant, so long as he is ready and willing to pay rent to the full extent allowable by the Act, unless the court is satisfied that any of the conditions mentioned in the various clauses in the section are satisfied. In the second place, the section provides that notwithstanding anything contained in any law or contract, no court shall make an order in favour of a landlord, whether in execution of a decree or otherwise, evicting a tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act unless it is similarly satisfied that any of the conditions mentioned in the various clauses of the section are fulfilled. Now, these two clauses of this section, in my opinion, refer to two different classes of decrees. The first clause refers to decrees passed under the Act itself, and the second clause refers to decrees passed before the Rajasthan Act came into force and not to decrees passed under this very Act. As I read this latter clause together with sec. 26 these are obviously over-lapping, and that again shows P that the language and the arrangement of the Act are not as happy as they might have been) I have no hesitation in saying that it applies in the case of decrees which have been passed before the commencement of the Rajasthan Act, and not to the decrees which are passed after the commencement of this Act and under the Act itself, though they might have been passed rightly or wrongly. " ;