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PETITIONER: DULAREY LODH

       Vs.

RESPONDENT: THE IIIRD ADDL. DISTRICT JUDGE, KANPUR & ORS.

DATE OF JUDGMENT03/05/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1984 AIR 1260            1984 SCR  (3) 743  1984 SCC  (3)  99        1984 SCALE  (1)793

ACT:      U.P. Urban  Buildings (Regulation  of Letting, Rent and Eviction  Act   1972,  Section  9  &  U.P.  Urban  Buildings (Regulation of  Letting Rent  and Eviction)  (Amendment  Act 1976-Decree of  eviction passed  against tenant  under  1972 Act-Executing   court   holding   decree   inexecutable-1976 Amendment Act  making section  9 of 1972 Act applicable with retrospective effect-Decree  of eviction whether revived and becoming  operative   and  executable-Doctrine  of  eclipse- Applicability of.      Interpretation   of   Statutes-Doctrine   of   eclipse- Applicability of-When arises.

HEADNOTE:      The respondent  landlord filed  a suit for ejectment in the year  1971 and  obtained a  decree for ejectment against the appellant-tenant.  By virtue  of the  provisions of  the U.P.  Urban  Buildings  (Regulation  of  Letting,  Rent  and Eviction) Act,  1972, the  case was transferred to the court of the  Judge, Small Causes, who tried the case and passed a decree in  favour of  the respondent.  No appeal or revision was filed against the said judgment. Thereafter, the decree- holders filed an execution petition. The appellant, raised a jurisdictional objection on the basis of the judgment of the Allahabad High  Court, (K.K.  Saksena v. S.N. Misra 1975 ALR 360) to  the effect  that the  transfer of  the suit  before conferment of  the jurisdiction  to the  Judge, Small Causes Court was  not competent  and therefore,  the decree was not executable. The respondent’s counsel contended that the suit would have  to be  tried all  over again  and the Court held that  the   decree  was  without  jurisdiction.  Tho  decree remained inexecutable,  but by  virtue  of  the  U.P.  Urban Buildings  (Regulation   of  Letting,   Rent  and  Eviction) (Amendment) Act,  1976  s.  9  of  the  1972  Act  was  made applicable with retrospective effect to remove The injustice and remedy the mischief which had been caused to the decree- holders.  As  a  result  of  the  amendment,  the  aforesaid judgment of  the Allahabad  High Court  stood over ruled and effaced.      In view  of the  aforesaid amendment,  the  respondents filed an  application before the Executing Court for revival of the suit and the decree, which was accepted by the Court,

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and a  Civil Revision  filed  against  the  said  order  was dismissed by the High Court. 744      In the appeal to this Court, it was contended on behalf of the  appellant, that  in view of the Allahabad High Court decision and  the 1972  Act, the  decree stood set aside and could not  be received  or made  executable even by the 1976 Amendment Act.      Dismissing the appeal, ^      HELD: 1.  The courts  below have  rightly decided  that after the  1976 Amendment  Act  the  decree  became  legally executable. [747A]      2. By  virtue of the 1972 Act the decree could not have been set aside or invalidated and the only consequence which would ensue  is that  the decree  would be lying dormant and could not  be executed.  Once the bar placed by the 1972 Act is removed,  by virtue of the doctrine of eclipse the decree will revive and become at once operative and executable.                                                 [750H; 751A]      3 Even  if the  1972 Act  were  to  apply,  the  utmost consequence  would   be  that   the  decree   would   remain inexecutable but could not be struck off from the records of the case.  This is  clear case where the doctrine of eclipse would apply,  and in  view of  the 1976  Amendment Act,  the decree will revive and become executable. This principle has been applied  by this  Court in several cases and flows from the well-known doctrine of eclipse which has been enunciated not only in India but in other countries also. [747G-H]      Bhikaji Narain  Dhakras  &  Ors.  v.  Stats  of  Madhya Pradesh &  Anr; [1955] 2 SCR 589, Deep Chand v. State of U.P JUDGMENT: of Uttar Pradesh & Ors; [1963] 1 Supp. SCR 912, S. Anbalagan v. B.  Devarajan; [1984]  2 SCC  91, Kailash  Sonkar v. Smt. Maya Devi; [1984] 2 SCC 91, referred to.

&      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1574 of 1980.      Appeal by  Special leave  from the  Judgment and  Order dated the  27.7.1979 of  the Allahahad  High Court in C.M.W. No. Nil of 1979.      Anil Dev  Singh, S.L.  Aneja and  K.L. Taneja  for  the Appellant.      M.C. Manchanda,  Mrs. Shobha  Dikshit and Pramod Swarup for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J This  appeal by  special leave  against a judgment of  the Allahabad  High Court  unfolds a  tell-tale plight of  an unfortunate  litigant who,  after obtaining  a decree for  ejectment, was driven from pillar to post to get the said  decree executed.  His attempts  to  get  the  said decree executed  were stalled  sometimes by objections filed by the tenant-appellant and sometimes by amendments made 745 in the  law with  the result  that even  after 13  years  of litigation the  landlord respondent  was  not  able  to  get possession of  the premises. This was because of a statutory amendment which made the decree obtained by him inexecutable and was, therefore, Lying dormant and ineffective.      The legislature  having realised  the hardship  of such landlords came  to their  rescue by  an amendment in 1976 to the U.P.  Urban Buildings  (Regulation of  Letting, Rent and

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Eviction) Act  1972 (for  short, to  be referred  to as  the ’1972  Act’)   which  was   expressly  given   retrospective operation so  as to  revive the  decrees  which  had  become inexecutable.      When the  appeal  was  heard  and  the  arguments  were concluded  the  respondents  had  made  a  good  gesture  in agreeing to  allow the  tenant two years’ time to vacate the premises on  giving the usual undertaking and accordingly we adjourned the  case to  enable the  parties  to  come  to  a settlement. However,  we were  informed by  counsel for  the parties that  no settlement  could be reached; hence we have now to decide the case on merits.      And now  to the  facts of  the  case.  The  respondent- landlord filed  a suit  for ejectment  in the  year 1971 and obtained a  decree  for  ejectment  against  the  appellant- tenant. By  virtue of  the provisions  of 1972 Act, the case was transferred  to the court of the Judge, Small Causes who tried the  case  and  passed  a  decree  in  favour  of  the respondent on  4.4.1973. It may be noted that the tenant did not object  to the jurisdiction nor did he prefer and appeal or revision  against the  said judgment dated 4.4.73 and the same became final.      Thereafter,  the   decree-holders  filed  an  execution petition being  Execution Case No. 4 of 1973. The appellant, however, raised a jurisdictional objection on the basis of a judgment of the Allahabad High Court reported in 1975 A.L.R. 360 that  the transfer  of  a  suit  before  conferment.  Of jurisdiction to  the  Judge,  Small  Causes  Court  was  not competent and,  therefore, the  decree was  not  executable. Counsel  for   the  respondents   under  some  misconception conceded that the suit would have to be tried all over again and the  Execution Case  was, therefore,  disposed of  by an order dated  31.1.1976 passed  by the  Executing Court.  The Court held  that the  decree was  without jurisdiction.  The respondents, however,  took the stand that a concession on a point of  law was  not binding  on him  nor was his Advocate authorised to make such a concession. However, the decree 746 remained inexecutable  but  by  virtue  of  the  U.P.  Urban Buildings  (Regulation   of  Letting,   Rent  and  Eviction) Amendment) Act,  1976 (hereinafter  referred to as the ’1976 Amendment  Act’),  section  9  of  the  1972  Act  was  made applicable with retrospective effect to remove the injustice and remedy the mischief which had been caused to the decree- holders. The  relevant portion  of the said amendment may be extracted thus:      "26. Transitory Provision           XX             XX             XX           (6) The  provision  of  section  9  of  the  Uttar      Pradesh Civil  Laws Amendment Act, 1972 shall apply and      shall be  deemed always  to have applied in relation to      suits of  the nature  referred to  therein which before      the commencement  of that Act had been transferred to a      competent court and were pending immediately before the      date of  commencement of  that Act  in such  transferee      court as  they apply  in relation  to suits  which were      pending in the court in which they were instituted:           Provided  that   any  such  suit  decided  by  the      transferee court  between the  commencement of the said      Act and  the commencement of this Act on the assumption      that the  said Section  9 did  not apply  to such suits      shall be  deemed to have been validly decided as if the      said section did not apply to such suits."      As a  result of  the  amendment  extracted  above,  the judgment of the Allahabad High Court reported in 1975 A.L.R.

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360 stood overruled and effaced.      In view  of this  amendment, the  respondents filed  an application before  the Executing  Court for  revival of the suit and  the decree  which was  accepted by the court and a civil revision filed against the said order was dismissed by the High  Court; hence  this appeal by special leave in this Court.      In order  to understand  the implication  of  the  1976 Amendment Act, it may be necessary to peruse s. 26(5) of the said Amendment, which is extracted thus: 747           "(5) Notwithstanding any judgment, decree or order      of any court or authority, the provisions of Rule 16 of      the  Uttar   Pradesh  Urban  Buildings  (Regulation  of      Letting, Rent and Eviction) Rules, 1972 shall be deemed      to have been made under the provisions of the principal      Act as amended by this Act as if this Act were in force      on all material dates."      A  close   analysis  of  the  above  reveals  that  the intention of  the legislature  was to  remove the  injustice done to the landlords whose decrees became inexecutable. The logical consequence  which flows  from an  interpretation of clauses (5) and (6) of s. 26 of the 1976 Amendment Act would be that  all decrees  which hitherto  had been Lying dormant would revive and the landlord could get the decree executed.      The Executing  Court as  also the High Court upheld the contention of  the respondents and directed execution of the decree.      The sheet-anchor  of the  arguments of  the counsel for the appellant  was that  in view of the Allahabad High Court decision (supra)  and the  1972 Act,  the decree  stood  set aside and  could not  be revived  or made executable even by the 1976 Amendment Act. It is, however, impossible for us to accept this  contention because  the dominant purpose of the 1976 Amendment  Act was  to remedy the injustice done to the landlords by the 1972 Act.      Another flaw  in the  argument of  the counsel  for the appellant  is  that  it  presumes  that  the  decree  became completely without  jurisdiction and  stood set aside. That, however, could  not be the position in law. Even if the 1972 Act were  to apply, the utmost consequence would be that the decree would remain inexecutable but could not be struck off from the records of the case. This is a clear case where the doctrine of  eclipse would  apply and  in view  of the  1976 Amendment Act, the decree will revive and become executable. This principle  has been  applied by  this Court  in several cases and  flows from  the well-known  doctrine  of  eclipse which has  been enunciated  not only  in India  but in other countries also.  In  Sutherland  Statutory  Construction  by Horack (Vol.  I, 3rd  Edn.), the  following passages  may be noted:           "In a  majority of  the jurisdictions  the  courts      recognise 748      the mistake of the legislature and try to determine and      give effect  to its  intent.  If  the  legislature  has      expressed its  purpose intelligibly  in the  amendatory      act and  provided fully  upon the subject considered, a      majority  of  courts  hold  that  it  is  a  reasonable      conclusion that  the legislature did not intend to make      the  enforcement  of  the  statute  contingent  on  the      continued existence of the repealed statute....                                                     (p. 329)           The unconstitutional  act physically exists in the      official statutes  of the  state and is there available

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    for reference,  and as  it is  only unenforceable,  the      purported amendment  is given  effect. If  the  law  as      amended is constitutional, it will be enforced."                                                     (p. 335)      It is  true that  the American Constitution as also the American courts  have  been  most  reluctant  to  apply  the doctrine of  eclipse but  this Court has pointed out in more than one  case that  the American  view cannot be applied to our Constitution. The matter first came up for consideration before this  Court in Bhikaji Narain Dhakras & Ors. v. State of Madhya  Pradesh &  Anr. where  in a similar situation the doctrine of eclipse was fully applied and the court observed thus:           "The  true  position  is  that  the  impugned  law      became, as  it were,  eclipsed, for  the time being, by      the fundamental  right. The  effect of the Constitution      (First Amendment)  Act, 1951  was to  remove the shadow      and to  make the  impugned Act free from all blemish or      infirmity.. Such  laws were  not dead for all purposes.      They  existed  for  the  purposes  of  pre-Constitution      rights and  liabilities and  they  remained  operative,      even after  the Constitution,  as against non-citizens.      In our  judgment, after the amendment, of clause (6) of      Article 19  on the  18th June  1951, the  impugned  Act      ceased to be unconstitutional and became revivified and      enforceable against  citizens as  well as  against non-      citizens. But  after the  amendment of  clause (6)  the      impugned Act immediately became fully operative even as      against the citizens."      In  Deep   Chand  v.  State  of  U.P.  &  Ors.  similar observations 749 were made by this Court which may be extracted thus:           "As, however,  our learned Brother has thought fit      to embark  upon a  discussion of  these  questions,  we      desire to  guard ourselves  against being understood as      accepting or  acquiescing in  the conclusion  that  the      doctrine  of   eclipse  cannot   apply  to   any  post-      Constitution law. A post-Constitution law may infringe,      either a  fundamental right  conferred on citizens only      or a fundamental right conferred on any person, citizen      or non-citizen.  In the  first case  the law  will  not      stand in  the way  of the  exercise by  the citizens of      that fundamental  right and,  therefore, will  not have      any operation  on the  rights of  the citizens,  but it      will be  quite a  effective as regards non-citizens. In      such a  case,  the  fundamental  right  will,  qua  the      citizens,  throw   a  shadow  on  the  law  which  will      nevertheless be  on the  Statute Book  as a  valid  law      binding on non-citizens and if the shadow is removed by      a constitutional amendment, the law will immediately be      applicable even  to  the  citizens  without  being  re-      enacted. In  other words,  the doctrine  of eclipse  as      explained by  this Court  in Bhikaji  Narain Dhakras v.      The State  of Madhya  Pradesh [1955  (2) SCR  589] also      applies to a post-Constitution law of this kind.           A pre-Constitution  law, stating  in the  words of      Das, J., as he then was, exists notwithstanding that it      does not  exist with  respect to the future exercise of      the  fundamental   rights.  That   principle  has  been      extended in  this decision, by invoking the doctrine of      eclipse. As  the law  existed on  the statute  book  to      support pre-Constitution acts, the Court held. that the      said law  was eclipsed  for the  time being  by one  or      other of the fundamental rights and when the shadow was

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    removed by  the  amendment  of  the  Constitution,  the      impugned  Act   became  free   from  all   blemish   or      infirmity."           (Emphasis ours)      In Mahendra  Lal Jaini  v. The State of Uttar Pradesh & Ors. this Court held as follows:           "The pre-Constitution  laws which  were  perfectly      valid when  they were passed and the existence of which      is recognised in the opening words of Art. 13(1) revive      by the  removal of  the inconsistency in question. This      in effect is 750      the doctrine  of eclipse,  which, if we may say so with      respect, was applied in Bhikaji Narain’s case           So far as pre-Constitution laws are concerned, the      amendment  of   the  Constitution   which  removes  the      inconsistency will  result in  the revival of such laws      by virtue  of the  doctrine of eclipse, as laid-down in      Bhikaji Narain’s  case, for  the pre-existing laws were      not still-born and would still exist though eclipsed on      account of  the inconsistency  to  govern  pre-existing      matters."                           (Emphasis supplied)      In two  recent decisions,  this Court  has applied  the doctrine of  eclipse in  similar situations. In S. Anbalagan v. B. Devarajan the following observations were made:           "Unless  the   practice  of  the  caste  makes  it      necessary no  expiatory rites  need be  performed  and,      ordinarily, he  regains his  caste unless the community      does not  accept him.  The practice  of  caste  however      irrational it  may appear  to our  reason  and  however      repugnant it  may appear to our moral and social sense,      is so  deep-rooted in  the Indian  people that its mark      does not seem to disappear on conversion to a different      religion. If  it  disappears,  it  disappears  only  to      reappear on reconversion."              (Emphasis ours)      Similarly, in  the case  of Kailash Sonkar v. Smt. Maya Devi, to  which one  of us (Fazal Ali, J.) was a party, this Court made the following observation:           "In our  opinion, when  a person  is converted  to      Christianity or  some other religion the original caste      remains under  eclipse and  as soon  as during  his/her      life-time the  person is  reconverted to  the  original      religion  the   eclipse  disappears   and   the   caste      automatically revives."      Thus, applying the rule of law laid down by this Court, there would  be no  difficulty in upholding the judgments of the courts below in this particular appeal. By virtue of the 1972 Act,  the decree  could not  have  been  set  aside  or invalidated and  the only  consequence which  would ensue is that the  decree would  be lying  dormant and  could not  be executed. Once the bar placed by the 1972 Act is 751 removed, by  virtue of  the doctrine  of eclipse  the decree will revive and become at once operative and executable. The courts below  have  rightly  decided  that  after  the  1976 Amendment Act the decree became legally executable.      Some other  arguments were  also advanced  on behalf of the appellant  but in  view of  the express  language of the 1976. Amendment  Act and  the doctrine of eclipse, they seem to be futile.      For the  reasons given  above, we uphold the decree for ejectment passed  by the  courts below against the appellant and dismiss  the appeal  with costs.  As the  litigation has taken more  than a decade, it is not possible for us to give any time  to the  tenant for a vacating the premises and the

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decree may  now be  executed forthwith  and the landlord put into possession. N.V.K.    Appeal dismissed. 752