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PETITIONER: SHYAM CHARAN

       Vs.

RESPONDENT: SHEOJI BHAI & ANOTHER

DATE OF JUDGMENT12/10/1977

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. SINGH, JASWANT

CITATION:  1977 AIR 2270            1978 SCR  (1) 710  1977 SCC  (4) 393

ACT: Madhya  Pradesh Accommodation Control Act, 1961, s.  2(1)(d) read  with s. 51(1)(2) of 1955 Act-Places  of  entertainment were excluded from the definition of s. 2(i) under the  1955 Act  but  made applicable under the Act of 1961  which  came into  force on 30th December 1961-Whether the benefit  under the  Act of 1961 will apply to earlier suit initiated  under the Transfer of Property Act.

HEADNOTE: The  appellant  was  the  lessee  of  the  premises  "Jairam Theatre" in the town of Raipur and his lease expired on  May 21,  1960.  Since the appellant did not vacate the  premises on the expiry of the lease by efflux of time u/s. 111 (a) of the Transfer of Property Act, the respondent-landlord  filed a suit against the appellant on June 25, 1960 for  eviction, rent  and mesne profits.  The trial court passed the  decree for eviction on November 3, 1962.  The High Court  dismissed the  appeal on February 26, 1964 which was affirmed by  this Court on September 25, 1964.  The appellant vacated the suit premises  on  October  4,  1964.   In  the  proceedings  for fixation  of mesne profits, the trial court awarded a  final decree  for mesne profits at Rs. 4,000/- per month from  the date  of determination of the lease, i.e., from May  22,1960 to October 4, 1964.  The High Court affirmed the decree.  In appeal  by  certificate the appellant  contended,  (i)  that according to the definition of the "tenant" in cl. ( 1 )  of s. 2 of the Madhya Pradesh Control Act, 1961, the appellant, even  after  the  termination of  the  lease,  continued  in possession of the accommodation as a "tenant" under the  Act which  is  conveniently  called  a  statutory  tenant.   The occupation  of  the accommodation by  the  appellant  became unauthorised and wrongful on and from November 3, 1962  when a decree, for eviction was passed by the Trial Court and not before  that.  Mesne profits could be awarded only from  the said  date;  and  (ii) that  the  courts  below  were  not justified in awarding damages at Rs. 4,000/- per month  when the  agreed  rent  as per the lease was  only  Rs.  1600/per month. Dismissing the appeal, the Court, HELD : (1) The definition of the term "tenant" in s. 2(1) of the  Madhya  Pradesh  Accommodation  Control  Act,  1961  is

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retroactive  in the sense that it embraces within its  ambit even   a   person  who  continued  in  possession   of   the accommodation after the termination of his tenancy,  whether the said termination was before or after the commencement of the Act.  It would apply and was meant to cover a case where the  contractual tenancy terminated before the  commencement of  the  1961  Act,  but  the  suit  was  filed  after   the commencement. In  the  instant case, the suit in question  was  not  filed under  the Act of 1955 because the accommodation was  exempt from  the  operation  of  that  Act.   The  suit  filed   in accordance  with the Transfer of Property Act  continued  to govern the rights and liabilities even after the coming into force  of the Act.  The retroactivity or retrospectivity  of the  definition of the term "tenant" was not  sufficient  to make the appellant a tenant within the meaning of the Madhya Pradesh Accommodation Control Act, 1961.  His continuance in occupation  of the accommodation on and from 22nd  May  1960 was  unauthorised and wrongful and a decree for  damages  or mesne profits has rightly been awarded. [712 G-H,713 A-D] Smt.  Chander Kali Bai & Ors. v. Shri Jagdish Singh  Thakur, [1978] (1) SCR 625, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 704 of 1971. From the Judgment and Decree dated 4-11-1970 of the Madhya Pradesh High Court in First Appeal No. 37 of 1967. 711 M.   M.  Phadke,  I.  N. Shroff and H. S.  Parihar  for  the Appellant. M.   C. Bhandare and K. J. John for Respondent No. 1. The Judgment of the Court was delivered by- UNTWALIA,  J.-This  is  an appeal by  certificate  from  the decision  of  the Madhya Pradesh High  Court  affirming  the final  decree  of mesne profits made by the Trial  Court  in favour   of  respondent  no.   1  (hereinafter  called   the respondent)  against  the appellant.  Only a few  facts  are necessary to be stated.  The respondent was the landlord  of the premises known as Jairam Theatre in the town of  Raipur. The appellant was given a lease of the said property by  the respondent  in the year 1940 for a period of 10  years.   On the  expiry of the said period, the lease was renewed  by  a Registered  Deed dated August 18, 1951 w.e.f. May  22,  1950 for a further period of 10 years.  In this lease the  agreed rent payable was fixed at Rs. 1,600/- per month.  The  lease expired on May 21, 1960.  Since the appellant did not vacate the premises on expiry of the lease by efflux of time  under section  1  1  1 (a) of the Transfer of  Property  Act,  the respondent  filed  a suit against him on June 25,  1960  for eviction, rent and mesne profits.  The Trial Court passed  a decree of eviction on November 3, 1962.  The appellant filed an appeal in the High Court which was dismissed on  February 26,  1964.  The decision of the High Court was  affirmed  by this Court on September 25, 1964.  Thereafter the  appellant vacated the suit premises on October 4, 1964. In  the  proceeding for fixation of mesne  profits,  various pleas were taken by the appellant.  The Trial Court  awarded a final decree for mesne profits @ Rs. 4,000/- per month  as against  the  respondent’s claim of Rs. 6,0,00/-  per  month from  the date of determination of the lease i.e.  from  May 22,  1960  upto  the delivery of vacant  possession  by  the appellant i.e. October 4, 1964.  The High Court has affirmed this  decree  both in regard to the period and the  rate  of

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damages. Hence this appeal. Mr.  M.  N. Phadke, learned counsel for the  appellant  made only two submissions in this appeal :               (1)   That according to the definition of  the               tenant in clause (1) of   section  2  of   the               Madhya  Pradesh  Accommodation  Control   Act,               1961-(hereinafter   called   the   Act)    the               appellant  even after the termination  of  the               lease   continued   in   possession   of   the               accommodation as a tenant under the Act, which               is  conveniently  called a  statutory  tenant.               The  occupation  of the accommodation  by  the               appellant became unauthorised and wrongful  on               and  from November 3,,1962 when a  decree  for               eviction was passed by the Trial Court and not               before  that.  Mesne profits could be  awarded               only from the said date.               (2)   That the Courts below were not justified               in  awarding damages at Rs. 4,000/- per  month               when the agreed rent as per the lease was only               Rs. 1,600/- per month. 712 In  Smt.   Chander  Kali Bai & Ors. v.  Shri  Jagdish  Singh Thakur(1)  the  judgment  of which was delivered  by  us  on 6.10.1977  we  have dealt with a similar,  almost  identical point as the one urged by Mr. Phadke.  On the facts on  that case  we  held  that no damages or mesne  profits  could  be awarded  for  the  period between  the  termination  of  the contractual tenancy and the passing of the eviction  decree. But the ratio of that case is not applicable in the  present appeal.   Under the Madhya Pradesh Control Act,  1955-places of entertainment like the one in question were excluded from the  operation of that Act as provided for in  section  2(1) (d).   The  lease of the accommodation was,  therefore,  not governed by the 1955 Act.  The ’suit was filed on  25.6.1960 and  the rights and liabilities of the parties in  the  suit were  governed simply by the Transfer of property Act.   The 1961  Act  came into force on December 30  1961  and  became applicable  in  the  town of Raipur even to  the  places  of entertainment.  In other words, if the provisions of the Act or  the  definition  of the term  tenant  therein  could  be applied  for determining the rights and liabilities  of  the parties in the pending suit which bad been instituted  prior to the coming into force of the Act then perhaps there would have  been no difficulty in accepting the  first  contention put forward on behalf of the appellant.  But the very  basis of  this argument is erroneous and it has to legs  to  stand upon. Sub-section  (1) of section 51 of the Act repealed the  1955 Act.  Sub-section (2) further provided :               "Notwithstanding  such repeal, all  suits  and               other proceedings under the said Act, pending,               at  the commencement of this Act,  before  any               court  or other authority shall be,  continued               and   disposed  of  in  accordance  with   the               provisions of the said Act as if the said  Act               had  continued in force and this Act  had  not               been  passed  and the  provisions  for  appeal               under the said Act shall continue in force  in               respect  of suit and proceedings  disposed  of               thereunder." As  we have indicated in our judgment referred to above  the appellant,  perhaps, would not have succeeded in making  his point  good even if the   suit could be taken to  have  been filed  under the 1955 Act.  The definition of the tenant  in

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that  Act and in the Act of 1961 is vitally different.   But we  need  not  dilate upon this aspect  of  the  matter  any further,  as, it is manifest that the suit in  question  was not  filed under the Act of 1955 because  the  accommodation was  exempt from the operation of that Act.  That being  so, the  suit filed in accordance with the Transfer of  Property Act  could not attract any provision of the Act as there  is nothing  in  it to make it applicable to a pending  suit  of that kind.  The Act being not applicable to the pending suit the  rights and liabilities of the parties were governed  by the provisions of the Transfer of Property Act.  That conti- nued to be so even after coming, into force of the Act. It is no doubt true as strenuously urged by Mr. Phadke  that the  definition of the term "tenant" in section 2(1) of  the Act is retroactive in the sense that it embraces within  its ambit  even  a  person who continued in  possession  of  the accommodation after the termination of his tenancy (1)  [1978] 1 S.C.R. 625. 713 whether  the  said  termination  was  before  or  after  the commencement   of   the  Act,  yet  the   retroactivity   or retrospectivity  of the definition of the term "tenent"  was not  sufficient  to make the appellant a tenent  within  the meaning  of  the  Act  unless it  could  be  held  that  the provisions  of  the  Act  applied to  the  pending  suit  in question.   As usual, the definition section 2  starts  with the  phrase  "In  this Act,  unless  the  context  otherwise requires,"  clearly  indicating that the definition  of  the term "tenant" will apply if the Act would apply.   Otherwise not.    Mr.  Phadke,  however,  contempled  that   such   an interpretation  would make the retroactive operation of  the definition  otiose.  Obviously not.  It would apply and  was meant  to  cover  a  case  where  the  contractual   tenancy terminated before the commencement of the Act, but the  suit was  filed  after its commencement.  Such a suit had  to  be filed in accordance with section 12 of the Act and attracted the  other provisions also.  Suppose in this case after  the termination  of  the tenancy in the year 1960 the  suit  for eviction  would have been filed in 1962 the appellant  could come  under the definition of the term "tenant" even  though the  termination of the contractual tenancy was  before  the commencement  of  the Act But we are unable  to  accept  the argument that the mere fact that the definition of tenant is retrospective  will make the appellant a tenant  within  the meaning  of  the Act.  That being so, it is plain  that  his continuing  in occupation of the accommodation on  and  from 22.5.1960  was  unauthorised and wrongful and a  decree  for damages  or mesne profits has rightly been awarded  for  the period commencing on that date and ending on 4.10.1964  when the appellant gave up vacant possession to the respondent. It will suffice to dispose of the second point urged by  the appellant  only  in  a few words.  On  appreciation  of  the evidence  adduced  in the Trial Court it fixed  the  monthly rate  of damages at Rs. 4,000/- as against the  respondent’s claim  of Rs. 6,000/-.  The High Court has  also  discussed the  evidence  on this question in detail and  affirmed  the finding of the Trial Court.  Having appreciated all that was urged  on  behalf  of  the appellant  in  this  regard  with reference  to  the relevant pieces of evidence, we  find  no justifiable  ground  to enable us to reduce the  quantum  of damages  and to fix a lesser rate than the one  concurrently determined by the Courts below. In   the  result,  we  dismiss  this  appeal  but   in   the circumstances make no order as to costs in this Court. S. R.  Appeal dismissed.

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