BERI, J. - (1.) THIS is a tenant's second appeal directed against the judgment and decree of the Senior Civil Judge, Jaipur City directed his eviction from the property in dispute.
(2.) FACTS which are necessary for the Disposal of this appeal briefly stated are these : Ambey Prasad took on lease a shop and a seller from the Jaipur Metals and Electricals Ltd. on a monthly rent of Rs. 50/- and Rs. 15/- respectively. The Munsiff, Jaipur City East decreed the plaintiff's suit directing the ejectment of the tenant on the ground of his making default in the payment of rent for the premises in question. The tenant preferred an appeal against the decree. The Senior Civil Judge, Jaipur, City, affirmed it in appeal. An appeal was presented to this Court on 19. 9. 1961. An interim stay of the tenant's ejectment was granted but the same was vacated on 8th January, 1962 giving the tenant three months' time to vacate the premises. The learned counsel for the parties are agreed that the tenant was ejected with the assistance of the Court some time in 1962. During the pendency of this appeal the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter' called 'the Act') was amended and sec. 13-A was inserted giving certain benefits to tenants who had made defaults in the payment of rent. An application was made by the tenant on 8th July, 1965 under sec. 13-A of the Act praying for the determination of the rent payable by him; fixation of a date for the payment of the amount so determined; and for setting aside of the decree for eviction and for restitution. On 9th August, 1965 the tenant also filed a statement indicating the nett amount due to the landlord respondent. On the same day the landlord respondent presented an application raising a number of points, which I shall presently advert to, praying that the application under sec. 13-A of the Act be dismissed. The principal reason urged is that the premises in dispute together with certain other premises were rented out to the United Commercial Bank Ltd. , Jaipur by the land-lord-respondent "years before the Rajasthan Act No. 12 of 1965 was even passed" and the bank come to acquire a vested right in the property, which it cannot be deprived of. Learned counsel for the appellant submitted that having regard to the decision in Chunnilal vs. Vaspujaji Maharaj (S. B. Civil Second Appeal No. 640 of 1960, decided on 12th October, 1965) by Bhandari, J. and to my judgment in Vassumal vs. Sampatmal Lodha (S. B. Civil Regular Second Appeal No. 331 of 1965, decided on 22nd November, 1965) the only order which can be passed in the case is one under sec. 13-A of the Act setting aside the decree of eviction and directing the payment of the rent, costs, interest, etc. The learned counsel for the respondent has urged firstly that sec. 13-A of the Act is inapplicable because the appellant before this Court is rot a tenant and sec. 13-A of the Act applies only to tenants. He placed reliance on Anand Nivas Pvt. Ltd. vs. Anandji Kalyanji's Pedhi (l ). The second argument closely connected with the first is that even if sec. 13-A applies the case of the appellant does not fall within the three clauses indicated therein and he was, therefore, not entitled to its benefits. It will be proper to notice the language of sec. 13-A of the Act. It reads : "13-A.- 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 on commencement of the amending Act, pass any decree in favour of a tenant on the ground of non-payment of rent, if the tenant applies under cl. (b) and pays to the landlord or deposits in Court, with in such time such aggregate of the amount of rent in arrears, interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause; (b) In every such proceeding, the court shall, on the application of the tenant made within thirty days from the date of 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 % 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 cls. (a) and (b) shall mutatis mutandis apply to all appeals, or applications for revisions, preferred or made, after the commencement of the amending Act, against decree 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 application for revisions', 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 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. Explanation - For the purposes of this section (a) 'amending Act' means the Rajasthan Premises Control of Rent and Eviction) (Amendment) Act" 1965; and (b) 'proceeding' means suit, appeal or application for revision. " Sec. 13-A (a) relates to eviction of tenants. The appellant is not a tenant because, argued by the learned counsel the Supreme Court cases (l) lays down - "a person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called 'a statutory tenant'; such a person is not a tenant at all ; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal; it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him. " On the basis of this authority it was sought to be urged that the appellant's tenancy having come to an end he was not a tenant and he had only a personal right to remain in possession. For the purposes of construing sec. 13 A of the Act we might revert to the definition of the word "tenant" as given in the Act. Sec. 3 sub-sec. (vii) reads as follows : - "'tenant' means the person by whom rent is, or but for a contract express or implied would be payable for any premises as a sub-tenant, (or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provision of this Act. " The Legislature has given an extended meaning to the expression "tenant" and has afforded legislative recognition to what their Lordships described as 'a statutory tenant' inaccurately so called. For the purposes of interpreting the Act unless there is anything repugnant in the context I am to be guided by the definition in the Act. Therefore, a tenant whose tenancy has been terminated but who continued to be in possession after the termination of the tenancy is still a tenant until he is deprived of the possession in accordance with the Act. I am, therefore, unable to agree with the contention of the learned counsel for the respondent that the appellant was not a tenant for the purposes of sec. 13-A. The second argument touching sec. 13-A is that no proceeding was pending on the commencement of the amending Act and, therefore, sub-cl. (a) of sec. 13-A does not apply to the appellant. Sub-cl. (b) does not apply because the expression "such proceedings" mentioned in cl. (b) refers to cases governed by sub-cl. (a ). Sub-cl. (c) does not apply because provisions of cls. (a) and (b) are alone applicable mutatis mutandis to all appeals, or applications for revisions made after the commencement of the amending Act. The learned counsel added that cl. (d) of course was clearly applicable. In my opinion, cl. (a) applies to the present case. The relevant portion of clause (a) reads - " (a) no court shall, in any proceeding pending on the date on commencement of the Act, pass any decree in favour of a landlord for eviction of a tenant on the ground of non-payment of rent," etc. etc. The expression "proceeding" in clause (b) means 'suit, appeal or application for revision' as indicated in the Explanation to Sec. 13-A. I have already indicated above that the appeal was presented on 19th September, 1961. The amending Act was published in Rajasthan Gazette Part IV-A Extra-ordinary dated 9th June, 1965, on which date the present appeal was pending. Therefore, a proceeding was pending on the date of the commencement of the Act and that this case is clearly governed by sec. 13-A. It will be relevant in this connection to notice what has been said by Bhandari, J. in Chunnilal's case, mentioned above - "in some of the appeals it has been argued that in execution of the lower appellate court, tenants have already been evicted and such tenants should not get benefit of sec. 13-A. I do not see any force in this argument. The appeals of such tenants were pending at the time of the coming into force of amending Act. Their cases were sub-judice. They cannot be deprived of the benefit of sec. 13-A only on the ground that they have been involuntarily ejected in execution of the decree appealed against. " While dealing with this part of the case I have observed in Vasumal's case referred to above, as follows - "i am in respectful agreement with this view, The jural relationship between the tenant and the landlord having been injured on account of non-payment of rent has been rendered capable of repair when the tenant amends by adopting the procedure laid down in sec. 13-A of the Act subject to its provisions. " Therefore, in my opinion it is not correct to say that the provisions of sec. 13-A are inapplicable to the present appeal because the same does not fall in clauses (a), (b) or (c ). The next contention of the learned counsel is that the date on which the landlord let out the premises in dispute to the United Commercial Bank Ltd. sec. l3a of the Act was not in force. The landlord disposed of his property which action sec. 13a directly disturbs and the section is, therefore, violative of Arts. 19 and 31 of the Constitution of India. It is curious that in the long drawn application of the 9th August, 1965 the respondent has not chosen to given the exact date of letting out of the premises beyond saying that they were let out to the Bank 'years before' the coming into force of sec. 13a. Since the point has been argued by the appellant without a murmur of protest from the other side on the assumption that the property was let out to the Bank prior to the coming into force of sec. 13a of the Act I propose to discuss this point. One of the limitations imposed on the right to dispose of property which is subject-matter of a litigation is contained in sec. 52 of the Transfer of Property Act. It lays down that a litigant shall not deal with a property in dispute in a manner so as to affect the right of the other party. This is an old and clear mandate of law. That this restriction in the disposal of property is unreasonable has not been asserted before me and I need not examine it from that point of view. Apart from this the very concept of property has legal validity to the extent it has legal recognition. Defining property Cooley in Constitution Law page 392 lays down: "when a man produces by the labour of his hand or his brain, whatever he obtains in exchange for something of his own and whatever is given to him, the law will protect him in the use, enjoyment and disposition thereof. Nothing can be the subject of property which is not recognised by law to be such. And when law withdraws such recognition, a thing ceases to have the attribute of property. " One of the restrictions imposed on the exercise of right to property as I have noticed is sec. 32 of the Transfer of Property Act that a property which is subject matter of dispute before a Court of law cannot be disposed away to the prejudice of the other party. Therefore sec. 52 stared the landlord in face when he was dealing with the property in dispute. If he dealt with the property in a spirit of optimism or adventure he did so at his own peril. The legislative competence to enact sec. 13-A has not been challenged before me. I have already discussed and held that sec. 13-A applied to pending proceedings and it thus constituted, if I may say so, another and an additional safeguard to the extent indicated in it in regard to properties which fell within its purview. In my opinion, therefore, sec. 13-A does not violate Art. 19 of the Constitution. At any rate, it is a reasonable restriction on its exercise. Art. 31 (1) of the Constitution lays down that no person shall be deprived of property save by authority of law. Art. 31 (2) relates to compulsory acquisition and requisition and insists that there should be provision for compensation. Relying on Jassuram vs. The State of Rajasthan (2) the learned counsel urged that the landlord cannot be deprived of his rights retrospectively. In Jassuram's case (2) it was held that Khatedari rights under the Rajasthan Tenancy Act constituted property under Art. 31 of the Constitution. It further held that the State by issuing a notification under proviso to sec. 15 of the Rajasthan Tenancy Act could not have retrospectively deprived tenants of their property. The State could not under its delegated power take away retrospectively what was conferred by sec. 15. In my opinion this case does not assist the respondent before me. Reference was also made to Triveni Shyam Sharma vs. the Board of Revenue (3 ). This decision considered a general restriction on the sale and bequest of property retrospectively applied. It does not help in the determination of the controversy before me either. The case before me is not hit by Art. 31 (1) because sec. 13-A merely regulates the rights of a landlord and a tenant and there is no one who is being deprived of property without authority of law. Art. 31 (2) does not apply because it relates to compulsory acquisition or requisition. Sec. 13a is not a confiscatory piece of legislation. To regulate the relations of landlord and tenant is different from compulsory acquisition or requisition of property. I am reminded in this context of the observations of their Lordships of the Supreme Court in Kishen Singh vs. State of Rajasthan (4), wherein it was held: "but it is well settled that a law which regulates the relation of landlord with his tenant is not one which takes property within Art. 31 (2), even though it has the effect of reducing his rights. " The case before me, therefore, relates to an unsettled dispute between landlord and tenant and sec. 13a merely regulated its settlement. It does not violate Article 31 of the Constitution. The next point urged by the learned counsel for the respondent was that under sec. 22 of the Act no second appeal was competent. This point stands completely answered by a decision of this Court in Shiv Kumar vs. Ballabh Dass and another (5 ). Bapna, J. observed that the right to recover rent or claim ejectment does not rest upon the Rajasthan Premises (Control of Rent and Eviction) Act, but on other laws, and therefore, every decree or order passed in a suit for arrears of rent and ejectment is not appealable by virtue of sec. 22 of the Act but under general law.
(3.) ANOTHER argument urged was that the application made by the appellant under sec 13-A is barred by time. The learned counsel's argument was that the Act received the assent of the President on 2nd June, 1965 and 30 days thereafter would bring us to the 1st of July, 1965 and the application having been presented on 8th July, 1965 was clearly barred by time. This argument ignores sec. 5 (1) (a) of the Rajasthan General Clauses Act, which lays down that - "sec. 5 (1 ).- Where any Rajasthan Law made after the first day of November, 1958, is not expressed to come into operation on a particular day, then it shall come into operation - (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . when it is first published in the Rajasthan Gazette. " It is not contested that the amending Act was published in the Rajasthan Gazette on 9th June, 1965. The application was made on 8th July, 1965; therefore, it was clearly within 30 days and not barred by time. An argument was faintly urged that if I consider it necessary, the new tenant admitted by the respondent should be made a necessary party. For the adjudication of the present suit between the appellant and the respondent, in my opinion, the landlord-respondent is alone the proper party. Any alleged creatures of his need not be impleaded. No other point was urged before me. As a result of the aforesaid discussion, the judgment and decree of the lower appellate Court are set aside and the case is remanded to the trial court with a direction that it should determine the amount of rent in arrears upto the date of the order to be passed by it as provided in clause (b) and also the amount of interest thereon at 6 per cent per annum and the costs of the suit. In determining the costs of the suit the landlord shall be held entitled to the costs in all the three courts. Having determined the aforesaid amount, it shall direct the tenant to pay the amount so determined within such time as it may deem proper but not exceeding 90 days. In case the amount is paid within the time fixed as aforesaid, the court shall dispose of the suit as if the tenant had not committed any default. In case the amount is not so paid, the court shall decree the suit for ejectment. The decree shall provide for payment of arrears of rent if the same is claimed and the costs thereof throughout. The payment that may have already been made by the tenant shall be deducted from the amount determined by the court under sub-clause (b) of sec. 13- A. If any amount is lying in deposit in any of the courts, that amount shall also be deducted and ordered to be paid to the landlord. The court is directed to fix early date of hearing of this case after the receipt of the record. Learned counsel for the respondent prays for leave to appeal to the Division Bench. Leave is allowed. . ;