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PETITIONER: LAXMAN MAROTRAO NAVAKHARE

       Vs.

RESPONDENT: KESHAVRAO S/O EKNATHSA TAPAR

DATE OF JUDGMENT02/03/1993

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) THOMMEN, T.K. (J)

CITATION:  1993 AIR 2596            1993 SCR  (2) 167  1993 SCC  (2) 270        JT 1993 (2)   187  1993 SCALE  (1)771

ACT: Constitution  of  India,  1950:  Article  136-S.L.P.  under- Whether  entertainment  of  petition amounts  to  the  Court converting itself into a court of appeal. Central  Provinces  and  Berar Letting of  Houses  and  Rent Control Order, 1949. : Clause 13-A-Effect of-Whether benefit can   be  claimed  if  S.L.P.  under  Article  136  of   the Constitution of India is pending at relevant time.

HEADNOTE: The  suit  plot was let out to the appellant  as  a  monthly tenant  for an automobile garage.  The  respondent-plaintiff issued a notice on 10th July, 1975 determining the lease  in favour  of the appellant with effect from 31st  July,  1975, and filed a suit for eviction. The trial Court dismissed the said suit on the finding  that as   the   appellant  was  using  the  suit   premises   for manufacturing  purposes, a six months’ notice  was  required before  the  lease could be determined, and  as  the  notice issued  to the defendant-appellant under section 106 of  the Transfer  of  Property Act had purported  to  determine  the tenancy with 15 days’ notice, the suit in question could not have been riled. On appeal by the respondent, the Assistant Judge came to the conclusion  that the premises in question had not  been  let out  for any manufacturing purpose but for a motor  workshop and  as  such the notice under section 106 of  the  Act  was valid, and the respondent was entitled to the possession  of the plot in dispute, and passed an order for possession. The  second  appeal  filed on behalf of  the  appellant  was dismissed  in  limine  by  the High  Court  saying  that  no substantial question of law was involved. In  the  appeal to this Court, the finding recorded  by  the Court  of Appeal below and affirmed by the High  Court  that the respondent was entitled to a decree for possession,  and that the appellant was liable to be 168 evicted was not questioned.  However, a new stand was  taken on  behalf of the appellant that in view of  the  subsequent events  the decree of eviction passed against the  appellant could not be given effect to.  It was submitted that by C.P.

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and  Berar  Letting  of  Houses  and  Rent  Control  (Second Amendment) Order, 1989 a new clause 13A has been  introduced and that was during the pendency of the present appeal,  and that  though  clause  13-A  had  been  introduced  not  with retrospective  effect  still  it  shall  be  applicable   to proceedings  pending before any Court including  this  court and  in view of the bar imposed by the said clause  13-A  no decree  for  eviction could be passed by this court  in  the present appeal against the appellant unless the  respondent- landlord produces a written permission of the Controller  as required by sub-clause (1) of Clause 13 of the Order. Dismissing the appeal, this Court, HELD:     1.  Article 136(1) of the Constitution confers  on this  Court  overriding  and extensive  powers  of  granting special  leave  to appeal.  Article 136 does  not  confer  a right  to appeal which is in the discretion of  this  Court. The   discretionary  power  under  Article  136  cannot   be construed  as to confer a right of appeal where none  exist. Although  the power under Article 136(1) is  unfettered,  it cannot be held that after having entertained a special leave petition  against  any final or  interlocutory  order,  this court converts itself into a court of appeal for the hearing of  the  dispute  involved and as such when  the  appeal  is dismissed  the decree passed by the High Court  merges  into the  decree of this court, and in that situation amounts  to passing a decree for eviction. [175G-H,176A] Gyan Chand v. Kunjbeharilal, [1977] 3 SCC 317, referred  to. [176B] 2.   The  bar  placed by clause 13-A of the Order  shall  be applicable only to a suit or proceeding which was pending in any  court under provisions of any special Act or under  the provision  of the Code of Civil Procedure, as the  case  may be.   It  shall  not become applicable to  a  special  leave petition  pending or an appeal registered before this  court on  the  basis  of leave granted under Article  136  of  the Constitution.  This Court while exercising its discretionary power  under  Article  136 of the  Constitution  even  while dismissing the appeal shall not be deemed to have passed any decree for eviction. [177C-D] 3.   The  matter  would have been different if  clause  13-A instead of only 169 imposing  a  bar on passing a decree for eviction  had  also prescribed  a  bar  on passing any  order  for  recovery  of possession  of  any premises or on initiation  of  execution proceedings  on basis of any decree passed earlier. In  that event, this Court could have taken note of subsequent change in the law and in exercise of its discretionary power  could have passed an order directing the respondent not to recover possession  of the premises on the basis of the  decree  for eviction  passed  in his favour or to pursue  the  execution proceedings without complying with the requirement of clause 13-A. [177E-F] H.   Shiva  Rao  v. Cecilia Pereira, [1987] 1 SCC  258;  M/s East  India Corporation Ltd. v. Shree Meenakshi Mills  Ltd., JT  1991 (2) SC 397; Amarjit Kaur v. Pritam Singh, AIR  1974 SC  2068 and Sadhu Singhi v. Dharam Dev. AIR 1980  SC  1654, referred to. [172F, 173G] (During  the  hearing it was brought to the  notice  of  the Court, that the amended definition of ’Premises’ and  clause 13-A  which had been inserted by C.P. and Berar  Letting  of Houses and Rent Control (Second Amendment) Order, 1989, have been  struck  down by a Division Bench of  the  Bombay  High Court on 23.6.1992. But the Counsel neither produced a  copy of  the said judgment, nor could inform whether any  special

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leave to appeal against the said judgment was pending before this  Court.   As  such, the effect of clause  13-A  of  the Order, has been considered, so far as the present appeal was concerned.) [177H, 178A]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5899 of 1983. From the Judgment and Order dated 13.4.83 of the Bombay High Court in S.A. No. 46 of 1983. V.A. Bobde and A.K. Sanghi for the Respondent. The Judgment of the Court was delivered by N.P.  SINGH, J. The defendant in a suit for eviction is  the appellant  before this court.  The suit plot was let out  to the appellant as a monthly tenant for an automobile  garage. The  plaintiff-respondent (hereinafter referred to  as  "the respondent") issued a notice on 10.7.1975 determining 170 the  lease  in  favour of the  appellant  with  effect  from 31.7.1975.  Later  the suit in question was filed.   As  the suit premises had not been let out for residential purposes, it  was an admitted position that the Central Provinces  and Berar Letting of Houses and Rent Control Order, 1949 was not applicable. The Trial Court dismissed the said suit on a finding that as the appellant was using the suit premises for  manufacturing purposes, a six months’ notice was required before the lease could  be  determined  and  as  the  notice  issued  to  the appellant under section 106 of the Transfer of Property  Act (hereinafter referred as "the Act") had purported to  deter- mine the tenancy with 15 days’ notice, the suit in  question could not have been filed.  On appeal being filed on  behalf of   the  respondent,  the  Assistant  Judge  came  to   the conclusion  that the premises in question had not  been  let out  for any manufacturing purpose but for a motor  workshop and  as  such the notice under section 106 of  the  Act  was valid  and the respondent was entitled to the possession  of the  plot in dispute.  The second appeal filed on behalf  of the  appellant  was dismissed in limine by  the  High  Court saying that no substantial question of law was involved. Before  this  Court  the finding recorded by  the  court  of appeal  below  and  affirmed  by the  High  Court  that  the respondent  was entitled to a decree for possession and  the appellant  was liable to be evicted was not  questioned.   A new stand was taken on behalf of the appellant, that in view of  the subsequent events the aforesaid decree  of  eviction passed against the appellant cannot be given effect to.   It was pointed out that by C.P. and Berar Letting of Houses and Rent Control (Second Amendment) Order, 1989 a new clause 13A has  been introduced in the said Order.  The new clause  13A is as follows:               "13-A.  No decree for eviction shall be passed               in  a  suit or proceeding  filed  and  pending               against the tenant in any court or before  any               Authority  unless  the  landlord  produces   a               written  permission of the Controller  as  re-               quired by sub-clause (1) of clause 13." Leave  to  appeal was granted by this Court on  1st  August, 1983  and  clause 13A has been introduced in the  year  1989 during  the  pendency of the present appeal.  By  that  very amending  Order  the definition of "premises" given  in  the original Order has also been amended and the said 171 definition  after amendment includes not only  building  but

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even "land not being used for agricultural purposes". if the definition  of the "Premises", which has been  amended,  had been  in force on the date of the filing of the  suit,  then the  respondent had to pursue the procedure  prescribed  for eviction  in  accordance with the provisions  of  the  Order aforesaid  instead of filing a suit after service of  notice under section 106 of the Act.  There is no dispute that  the amendment has not been introduced with retrospective  effect and it is only prospective in nature.  As the suit  premises is  only  land and not a building when the  suit  was  filed steps  for  eviction of the appellant could  not  have  been taken  in  accordance  with  the  provisions  of  the  Order aforesaid because then those provisions were not applicable. But  the stand of the appellant is that although clause  13A has  been introduced not with retrospective effect still  it shall be applicable to proceedings pending before any  Court including this Court and in view of the bar imposed by  said clause  13A,  no decree for eviction can be passed  by  this Court in the present appeal against the appellant unless the respondent-landlord  produces  a written permission  of  the Controller as required by sub-clause (1) of clause 13 of the Order.   Reliance was placed on the case of H. Shiva Rao  v. Cecilia  Pereira, [1987] 1 SCC 258, wherein it  was  pointed out by this court :-               "It is well settled legal principle that  Rent               Control  legislations being beneficial to  the               tenant   have   to   be   given   a    liberal               interpretation.  While ordinarily  substantive               rights  should  not be held to be  taken  away               except   by   express   provision   or   clear               implication, in the case of Rent Control  Act,               it   being   a  beneficial   legislation   the               provision which confers immunity to the tenant               against   eviction  by  the  landlord   though               prospective in form operates to take away  the               right vested in the landlord by a decree of  a               court which has become final, unless there  is               express provision or clear implication to  the               contrary." It  appears  that  in the aforesaid case  the  judgment  was passed for possession of the premises in question on  August 27, 1970.  Thereafter execution proceedings were  initiated. During  the  pendency  of  the  execution  proceedings,  the village in which the suit premises was situated was included within  the  Mangalore  Municipality  by  amendment  of  the Karnataka Rent Control 172 Act,   1961.   After  issuance  of  the   notification   the provisions   of  the  aforesaid  Rent  Control  Act   became applicable even to the suit premises during the pendency  of the  execution.   An objection was taken on  behalf  of  the tenant that in view of sub-section (1) of section 21 of  the Act  aforesaid, the decree passed in the connected suit  was not executable.  Sub-section (1) of section 21 provided:               "Notwithstanding  anything  to  the   contrary               contained  in  any other law or  contract,  no               order or decree for the recovery of possession               of any premises shall be made by any court  or               other  authority  in favour  of  the  landlord               against the tenant." So far the aforesaid case is concerned, once the  provisions of  the Karnataka Rent Control Act became applicable  during the  pendency of the execution proceedings, the bar  imposed on  the  Court  from  passing  an  order  for  recovery   of possession of any premises in favour of the landlord  became

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applicable.  But clause 13A, with which we are concerned, is only  in respect of passing a decree for eviction  and  "not an,  order for recovery of the possession of any  premises". If  even in clause 13A a bar had been placed in  respect  of recovery  of possession of any premises, then there  was  no difficulty  in accepting the contention raised on behalf  of the  appellant and holding that although there is  a  decree for  eviction  in favour of the respondent, but  as  in  the meantime a bar has been placed on recovery of the possession of the premises the decree became unexecutable. Reference  was  also made to the case of  M/s.   East  India Corporation  Ltd v. Shree Meenakshi Mills Ltd., JT 1991  (2) SC  397.  It will appear that when the suit in question  had been  filed or even when the leave had been granted by  this Court,  the  building in question did not  come  within  the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, in view of an exclusionary provision contained in clause  (ii) of section 30.  During the pendency  of  appeal before this Court clause (ii) of section 30 was struck  down by  this Court in another appeal pending as being  violative of  Article 14 of the Constitution.  The result whereof  was that provisions of the aforesaid Act became applicable.   In view of the subsequent events, it was urged in the aforesaid case that section 10 of that Act became applicable as  well. Section 10 provided :-               "S.10.  Eviction  of tenants.-  (1)  A  tenant               shall not be evicted whether in execution of a               decree or otherwise except in accordance  with               the provisions of this section or sections  14               to 16: In  view  of the bar placed by section 10 aforesaid  on  the eviction  of  a tenant whether in execution of a  decree  or otherwise  except  in  accordance  with  the  provisions  of section 10 or sections 14 to 16 which had become  applicable in  view of striking down of clause (ii) of section 30,  the decrees for eviction passed by courts below were set  aside. This  case  is clearly distinguishable because the  bar  had been placed in respect of eviction of the tenant whether  in execution  of  a decree or otherwise and  this  Court  while exercising  jurisdiction under Article 136 of the  Constitu- tion  could  have  taken note of that  bar  for  purpose  of setting  aside the decree because in view of the  subsequent events the decree passed in the suit became unexecutable  in absence of compliance of section 10 or sections 14 to 16  of the Act. Here  as the bar is on the part of the Court from passing  a decree  for  eviction, it has to be examined as  to  whether while  affirming the decree for eviction passed by the  High Court,  it shall be deemed that a fresh decree for  eviction shall  be deemed to have been passed by this Court.  It  was submitted that even if it is held that bar under clause  13A is only on respect of passing of the decree as appeal before this  Court on basis of the leave granted under Article  136 of    the   Constitution   is   a   continuation   of    the suit/proceeding, while dismissing the said appeal, it  shall be  deemed that this Court has passed a decree for  eviction which  in view of clause 13A is barred and the said  bar  is applicable even on this Court.  In this connection reference was  made  to the judgments of this Court in  the  cases  of Amarjit  Kaur v. Pritam Singh, AIR 1974 SC 2068,  and  Sadhu Singh v. Sharan Dev, AIR 1980 SC 1654. In  the  case of Amarjit Kaur- v. Pritam Singh  (supra)  the suit  for  pre-emption in question had been decreed  by  the Trial  Court.   The  appeal  preferred  by  the  vendee  was dismissed.   While the second appeal was pending before  the

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High Court, the Punjab Pre-emption (Repeal) Act, 174 1973 came into force.  In view of section 3 of the said Act, the  High Court allowed the appeal and dismissed  the  suit. Section 3 of that Act provided:-               "Bar to pass decree in suit for  pre-emption.-               On  and from the date of commencement  of  the               Punjab  Pre-emption  (Repeal)  Act,  1973,  no               court shall pass a decree in any suit for pre-               emption." In  view of the fact that aforesaid section 3 said in  clear and  unambiguous term that no court shall pass a  decree  in any suit for pre-emption after coming into force of the Act, the  High Court was of the view that said bar applied  even. to the High Court, while confirming the decree for  pre-emp- tion  as  passed by the Trial Court because it  amounted  to passing a decree in a suit for pre-emption.  This Court said :-               "As an appeal is a re-hearing, it would follow               that  if  the High Court were to  dismiss  the               appeal, it would be passing a decree in a suit               for  pre-emption.  Therefore, the only  course               open to the High Court was to allow the appeal               and that is what the High Court has done.   In               other words, if the High Court were to confirm               the decree allowing the suit for  pre-emption,               it  would  be passing a decree in a  suit  for               pre-emption,  for,  when the  appellate  court               confirms  a decree, it passes a decree of  its               own,  and therefore, the High Court was  right               in allowing the appeal." Again in the case of Sandhu Singh v. Dharam Dev, (supra) the same section 3 of the Punjab Pre-emption (Repeal) Act, 1973, came up for consideration and this Court held:               "The   section  is  plain  and   its   meaning               unambiguous that there is a statutory  mandate               against passing a decree for enforcement of  a               right  of pre-emption in the State of  Punjab.               The only point here is as to whether a  decree               already passed by the trial court,  challenged               in  appeal  after  the  Act  was  passed   and               affirmed  on  appeal  would  fall  within  the               mischief  of S. 3 while the case pends in  the               High Court.  We think that S.3 interdicts  the               passing  of a decree even in appeal.  For  one               thing   a  decree  challenged  in  appeal   is               reopended and the appellants’ hearing is a               175               rehearing of the whole subject matter and when               a decree is passed in appeal the first  decree               merges  in the appellate decree and  it  comes               within the scope of S. 3." From  the facts of the aforesaid case it shall  appear  that even  in  this  case section 3  of  the  Punjab  Pre-emption (Repeal) Act had come into force while appeal was pending in the High Court and the High Court had affirmed the decree of the  Trial Court without taking note of the bar  imposed  by section  3  aforesaid.   This  Court  said  that  section  3 interdicted  the passing of a decree even in appeal  because the decree which had been challenged in appeal had  reopened the  hearing  of  the whole subject matter  and  even  while affirming the said decree it shall be deemed that  appellate court  had  passed a decree for pre-emption  which  was  not permissible  in view of the bar placed by section 3  of  the Act in question.

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In  the aforesaid cases section 3 of the Punjab  Pre-emption (Repeal)  Act  had come into force while  the  appeals  were pending  in the High Court and effect of section 3  of  that Act  was considered in connection with the pendency  of  the appeals  before  the High Court and not before  this  Court. Can  it be said that when a special leave is  granted  under Article  136 of the Constitution by this court, against  the judgment  of the High Court it is to be treated at par  with an appeal entertained by the High Court against the judgment of  a  court  subordinate to the High  Court  ?  Whether  by granting  leave to appeal, the decree of the High  Court  is reopened  "for  rehearing"  of the whole  subject  matter  ? Whether  on the same analogy when an appeal is dismissed  by this  Court,  the  decree of the High Court  merges  in  the decree of this Court and amounts to passing a decree in  the connected suit for eviction by this Court ? Article  136(1)  of the Constitution confers on  this  court overriding and extensive powers of granting special leave to appeal.   Article 136 does not confer a right to appeal,  it confers  a right to apply for special leave to appeal  which is in the discretion of this Court.  The discretionary power under  Article 136 cannot be construed as to confer a  right of  appeal where none exist.  According to us, although  the power  under Article 136(1) is unfettered but it  cannot  be held that after having entertained a special leave  petition against  any  final  or  interlocutory  order,  this   Court converts  itself into a court of appeal for the  hearing  of the dispute involved and as 76 such  when the appeal is dismissed the decree passed by  the High Court merges into the decree of this Court and in  that situation amounts to passing a decree for eviction. This aspect has been considered by this Court in the case of Gyan Chand v. Kunjbeharilal, [1977] 3 SCC 317, in connection with Rajasthan Premises (Control of Rent and Eviction)  Act, 1950.   Section 13A as amended by Rajasthan Ordinance 26  of 1975  extended the opportunity of paying arrears of rent  by the  tenant facing eviction.  Benefit was made available  in pending  suits,  appeals  therefrom  and  applications   for revision  pending  on  the  date  of  commencement  of   the Ordinance.   This  Court examined whether  that  benefit  of section  13A can be availed by the tenant while  the  appeal was pending before this Court.  The Ordinance aforesaid  had come  into force after the special leave petition  had  been filed  before this Court.  The appellant submitted  that  on basis  of the leave granted a proceeding was pending  before this  Court  within the meaning of clauses (a)  and  (b)  of section  13A  aforesaid and as such he was entitled  to  the benefit of section 13A which had come into force during  the pendency   of  the  proceeding/appeal  before  this   Court. Chandrachud,  J. (as he then was) speaking on behalf of  the Court said :-               "With regard to the first submission it may be               pointed  out that an application  for  special               leave  under Article 136 of  the  Constitution               against  a  judgment  or an  order  cannot  be               equated with the ordinary remedy of appeal, as               of right, under any provisions of law.  It  is               an  extraordinary  right conferred  under  the               Constitution,  within the discretion  of  this               Court,  and  such an application  for  special               leave  does not come within the  contemplation               of  appeal  pending  before  the  Court  under               Section  13A(a).   It is true  that  the  word               "proceeding"  which appears in Section  13A(a)

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             and (b) means suit, appeal or application  for               revision according to the Explanation appended               to  Section  13A.   Therefore,  in  order   to               attract  Section  13A(a), a  suit,  appeal  or               application  for revision must be  pending  on               the  date of commencement of the Ordinance  26               of 1975.               In  view  of  the  connotation  of  the   word               "proceeding" as given under the Explanation to               Section 13A it is imper-               177               missible  to  extend the meaning of  the  word               "proceeding"  to  include an  application  for               special   leave  under  Article  136  of   the               Constitution.   The collocation of the  words,               "suit, appeal or application for revision"  in               the  Explanation to denote "proceeding"  would               go   to  show  that  suits,  regular   appeals               therefrom, as provided under the ordinary  law               and   applications  for  revision  alone   are               intended.   It  is inconceivable that  if  the               legislature had intended to include within the               ambit  of  "proceeding"  an  application   for               special   leave  under  Article  136  of   the               Constitution it would have omitted to  mention               it in express terms." The bar placed by clause 13A of the Order in question  shall be  applicable only to suit or proceeding which was  pending in  any court under provisions of any special Act  or  under the  provision of Code of Civil Procedure. as the  case  may be.   It  shall  not become applicable to  a  special  leave petition  pending or an appeal registered before this  Court on  basis  of  leave  granted  under  Article  136  of   the Constitution.  This Court while exercising its discretionary power  under  Article  136 of the  Constitution  even  while dismissing the appeal shall not be deemed to have passed any decree  for eviction.  The matter would have been  different if  clause 13A instead of only imposing a bar on  passing  a decree for eviction had also prescribed a bar on passing any order  for  recovery  of possession of any  premises  or  on initiation  of execution proceedings on basis of any  decree passed earlier.  In that event, this Court could have  taken not  of subsequent change in the law and in exercise of  its discretionary power could have passed an order directing the respondent  not  to recover possession of  the  premises  on basis of the decree for eviction passed in his favour or  to pursue the execution proceedings without complying with  the requirement of clause 13A. We   accordingly   dismiss   the  appeal.    But,   in   the circumstances  of the case, there shall be no orders  as  to costs. Before we part with this appeal, we any mention that  during the  pendency  of the present appeal it was brought  to  our notice that amended definition of "premises" and clause  13A which had been inserted by C.P. and Berar Letting of  Houses and  Rent Control (Second Amendment) Order, 1989, have  been struck  down  by a Division Bench of Bombay  High  Court  on 23.6.1992.  But the counsel neither produced a copy  of  the said 178 judgment  nor  could inform this Court whether  any  special leave to appeal against the said judgment is pending  before this  Court.   As  such, we have considered  the  effect  of clause  13A  of  the Order, so far  the  present  appeal  is concerned.

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N.V.K.                                 Appeal dismissed. 179