07 October 2004
Supreme Court
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KAILASH CHAND Vs DHARAM DASS

Bench: ARIJIT PASAYAT,C.K. THAKKER
Case number: C.A. No.-000390-000390 / 2004
Diary number: 63738 / 2002
Advocates: Vs AJAY CHOUDHARY


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CASE NO.: Appeal (civil)  390 of 2004

PETITIONER: Shri Kailash Chand and Another

RESPONDENT: Sh. Dharam Dass   

DATE OF JUDGMENT: 07/10/2004

BENCH: Arijit Pasayat & C.K. Thakker

JUDGMENT: J U D G M E N T

O R D E R

       The present appeal is filed against the judgment and order dated  November 27, 2001 passed by the High Court of Himachal Pradesh,  Shimla in Civil Revision No. 35 of 1999.  By the said order, a single  Judge of the High Court of Himachal Pradesh dismissed the eviction  petition filed by the landlord reversing order of ejectment passed by  the Rent Controller, Shimla and confirmed by the Appellate Authority  (II), Shimla.

       The appellant herein is the owner of a building being House  No. 108, Anandele, Shimla (’suit premises’ for short).  He let the first  floor of the suit premises to the respondent.  The landlord filed an  eviction petition against the tenant in respect of the first floor of the  building in November, 1980.  The petition was allowed by the Rent  Controller by an order dated October 31, 1984.  The tenant preferred  an appeal and challenged the decree of eviction.  On September 17,  1986, however, a compromise was arrived at between the parties.  On  the basis of the said compromise, the tenant agreed to vacate the first  floor in favour of the landlord and was inducted as tenant of the  ground floor of the same building.

       According to the landlord, at the relevant time he was staying  all alone in Shimla.  Subsequently, however, his wife had also shifted  from village Panhoi to Shimla.  Moreover, the landlord wanted to get  his child educated at Shimla where best facilities for studies are  available.  He, therefore, filed eviction petition against the tenant.   The Rent Controller, Shimla, by an order dated January 20, 1993,  held that the landlord wanted the premises for his bona fide  occupation and accordingly an order of eviction was passed.  Being  aggrieved by the said order, the tenant preferred an appeal which was  dismissed by the Appellate Authority (II), Shimla, by an order dated  November 30, 1998.  The aggrieved tenant carried the matter to the  High Court by filing Civil Revision 35 of 1999.  According to the  landlord, a new ground which was never raised before the courts  below was put forth by the tenant contending that the eviction petition  filed by the landlord was not maintainable in view of third proviso to  sub-section (1) of Section 14 of the Himachal Pradesh Urban Rent  Control Act, 1987 (hereinafter referred to as ’the Act’).    Section 14  of the Act provides for eviction of tenants in certain cases on certain  grounds.  Sub-section (3) deals with cases of requirement of building  premises by the landlord.  The relevant part of sub-section (3) reads as  under :

"(3)    A landlord may apply to the Controller for an  order directing the tenant to put the landlord in

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possession\027

(a)     in the case of a residential building, if \026 (i)     he requires it for his own occupation :

       xxxxx     xxxxxxx      xxxxxx        xxxxx xxxxx      xxxxxxx      xxxxxx       xxxxx

Provided further that where the landlord has  obtained possession of any building or rented  land under the provisions of clause (a) or clause  (b) he shall not be entitled to apply again under  the said clause for the possession of any other  building of the same class or rented land :"

       It was contended on behalf of the tenant before the High Court  that since the landlord had obtained possession of the first floor  earlier he was not entitled to apply again.  The petition, therefore, was  not maintainable and was liable to be dismissed on that ground alone.      The High Court upheld the contention relying on a decision of this  Court in Molar Mal (dead) through LRs.  vs.  M/s. Kay Iron Works  (Pvt.) Ltd., [2000 (4) SCC 285].

       A two-Judge Bench of this Court in Molar Mal had an  occasion to consider a similar provision in Haryana Urban (Control of  Rent and eviction) Act, 1973 (hereinafter referred to as "the Haryana  Act").   Proviso to Section 13(3)(b) of the Haryana Act also creates  an embargo on the landlord from seeking eviction of the tenant if he  had earlier obtained eviction of other tenants under the said provison.   Considering the ambit and scope of the provision, the Bench  observed :

       "On behalf of the landlord, it is next contended  that the proviso does not apply to the facts of this case,  since on the date of filing of the present eviction  petition, the landlord had not obtained possession of any  other tenanted premises.  Subsequent possession  obtained by it would not be an embargo for the landlord  to claim possession of the present petition-scheduled  premises.  Elaborating this argument on behalf of the  landlord, it is contended that if on the date of filing of  the eviction petition, a landlord has not by then obtained  possession of any other premises, then the proviso  would not be a bar for the landlord to file an eviction  petition and obtain possession of another premises, even  though during the pendency of the petition, he obtains  possession of other premises.  The landlord wants us to  give a literal meaning to the words "entitled to apply  again" found in the proviso.  If we give such a meaning  to the words "entitled to apply again" without taking  into consideration the object and scheme of the Act, the  proviso may give an impression that the embargo  incorporated in that proviso would be applicable only at  the stage of filing of the eviction petition.  But such an  interpretation will run counter to the very scheme of the  Act.  It goes without saying that the Haryana Urban  (Control of Rent and Eviction) Act, 1973 like any other  similar Act in other States in India is an enactment  which controls the fixation of rent and eviction of the  tenants from rented premises to which the Act is  applicable.  This Act controls the right of a landlord to  seek eviction of tenanted premises, it restricts the right  of a landlord to seek eviction on those grounds  mentioned in the Act.  As a matter of fact, a landlord  can seek eviction only the grounds enumerated under

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the Act and on no other grounds.  This is clear from the  language of Section 13(1) of the Act which in specific  terms says that a tenant in possession of a building or  rented land shall not be evicted therefrom except in  accordance with the provisions "of this section".   Section 13 enumerates various grounds on which a  landlord can seek possession.  This right is further  restricted if the landlord has obtained possession of  similar premises under the same provisions of law by  the proviso.  Now the question is whether the bar under  the proviso is applicable only to the filing of an  application or it is a bar on the right of the landlord.  If  the interpretation suggested by the landlord is accepted  then the bar will be on the application by the landlord  and not on his right to evict.  This, in our opinion, will  not be the correct interpretation of the proviso.  A  careful perusal of the various provisos found in sub- section (3) of Section 13 of the Act clearly shows that  the legislature intended to further restrict the right of a  landlord to seek eviction under the clauses mentioned in  that sub-section apart from the restrictions imposed in  Section 13 of the Act.  For example, if the landlord is  seeking eviction of a tenant on the ground that the same  is required for the use of his son then, in view of the  proviso applicable to that sub-section, he can seek  eviction of the premises only once.  Similarly, if the  landlord is seeking eviction for his own occupation  under Section 13(3)(b) of the Act then by virtue of the  proviso applicable to that sub-section, the landlord can  seek such eviction only once in regard to the premises  of the same nature.  Therefore, in our opinion, the bar  imposed by the proviso is in fact a bar on the right of the  landlord to seek actual eviction and not confined to the  filing of the application for eviction.  On behalf of the  landlord, it is contended that while interpreting a statute  the courts should apply the rule of literal construction  and if it is so interpreted then the wording of the proviso  would show that the restriction imposed by the proviso  is restricted to the stage of filing of the application for  eviction only.  We agree with this contention of the  landlord that normally the courts will have to follow the  rule of literal construction which rule enjoins the court  to take the words as used by the legislature and to give it  the meaning which naturally implies.  But, there is an  exception to this rule.  That exception comes into play  when application of literal construction of the words in  the statute leads to absurdity, inconsistency or when it is  shown that the legal context in which the words are used  or by reading the statute as a whole, it requires a  different meaning.  In our opinion, if the expression  "entitled to apply again" is given its literal meaning, it  would defeat the very object for which the legislature  has incorporated that proviso in the Act inasmuch as the  object of that proviso can be defeated by a landlord who  has more than one tenanted premises by filing multiple  applications simultaneously for eviction and thereafter  obtain possession of all those premises without the bar  of the proviso being applicable to him.  We are of the  opinion  that this could not have been the purpose for  which the proviso is included in the Act.  If such an  interpretation is given then the various provisos found in  sub-section (3) of Section 13 would become otiose and  the very object of the enactment would be defeated.   Any such interpretation, in our opinion, would lead to  absurdity.  Therefore, we have no hesitation in

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interpreting the proviso to mean that the restrict  contemplated under that proviso extends even up to the  stage when the court or the tribunal is considering the  case of the landlord for actual eviction and is not  confined to the stage of filing of eviction petition only."

       The attention of the Court was invited to two decisions of the  High Court of Punjab and Haryana in (i) Brij Lal Puri v. Muni Lal  [AIR 1979 P&H 132] and (ii) Jagir Singh v. Jagdish  Pal Sagar  [1980 (1) RCR 494 (P&H)],  wherein the High Court held that the  proviso does not lay down that if the entire building which is needed  by a landlord for his personal use, is occupied by more than one  tenant, he or she cannot take out proceeding against other tenants  after having evicted one.  It was further observed; "The object of this  proviso is that a landlord should not be allowed to seek unreasonable  ejectment of tenants from independent buildings if he has already  succeeded in evicting a tenant from the building which is sufficient  for his personal occupation."   Observing that the law was not  correctly laid down by the High Court, the two-Judge Bench  proceeded to state;

       "Based on the above-cited two judgments of the  High Court it is contended that the landlord in the  instant case is seeking eviction of a part of the premises  owned by it which is leased to the present appellant.   Eviction of the three other tenants referred to  hereinabove was from the premises which are parts of  the same premises, therefore, in view of the above  judgment the bar under the proviso is not applicable.   We find it difficult to accept this argument of the  landlord also.  From the language of the proviso we do  not find any support for this argument of the appellant  or to the conclusions arrived at by the High Court in the  above-referred judgments.  The proviso does not make  any such distinction between a landlord seeking  possession of the premises held by more than one tenant  occupying the same building or the tenants occupying  different independent buildings under the same landlord.   As we have observed, the object of the proviso like any  other provisions of the Act, is to further restrict the right  of the landlord to seek eviction; if that be so, we do not  find any justification in reading into the proviso  something as conferring a larger right on the landlord to  evict more than one tenant if those tenants are  occupying different parts of the same premises.   Therefore, we are of the opinion that the view expressed  by the High Court in the above-referred case does not  lay down the correct law.  Consequently, the argument  of the landlord based on the said judgment is also  rejected."

       Before us, the learned counsel for the respondent-tenant  contended that the point is finally concluded by this Court in Molar  Mal.  Since the appellant-landlord has already obtained possession in  previous proceeding from the respondent-tenant, bar of third proviso  to sub-section (3) of Section 14 of the Act got attracted and he was  not entitled to apply again under sub-section (3) of Section 14 of the  Act for possession of the ground floor occupied by the tenant.  The  High Court was, therefore, right and wholly justified in dismissing  the petition.

       Learned counsel for the landlord, on the other hand,  strenuously argued that the landlord has not got possession as  contended by the tenant.  Pursuant to the compromise arrived at  between the parties, the landlord obtained possession of first floor,

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but in lieu thereof, he allowed the tenant occupy the ground floor.   Thus, it was not a case of obtaining of possession.  It was submitted  that third proviso to Section 14(3) of the Act would not apply to such  compromise and exchange of premises so as to deprive the right of  the landlord to get eviction of tenant on the ground of bona fide  requirement.  It was also urged that what is contemplated by the third  proviso to Section 14(3) of the Act is that a landlord on the "self- same grounds" is not entitled to apply again for possession of any  other building, if he has obtained possession from the tenant.  But if  the circumstances have changed or his need is increased, the bar has  no application and the petition for eviction of tenant will be  maintainable and the case has to be decided on its own merits. It was  also contended that if the interpretation sought to be suggested by the  tenant is accepted irrespective of need and requirement by the  landlord that the petition would not be held maintainable, the  provision should be held arbitrary, unreasonable and ultra vires.

       In support of the above contentions, the learned counsel drew  our attention to the following decisions :  Food Corporation of India  v. New India Assurance Co. Ltd. & Others,   [1994 (3) SCC 324],  K.S. Sundararaju Chettiar v. M.R. Ramachandra Naidu, [1994 (5)  SCC 14], State of Punjab & Another v. Khan Chand, [1974 (2) SCR  768], Bhatia International v. Bulk Trading S.A. & Another, [2002  (4) SCC 105], Rakesh Wadhawan & Others v. Jagdamba industrial  Corporation & Others, [2002 (5) SCC 440]; Suraj Mal v.  Radheyshyam [1988 (3) SCC 18].   

       Having considered the rival contentions of the parties, in our  opinion, prima facie the submission of the landlord deserves serious  consideration.  In our opinion, it may be possible for the landlord to  argue that in the facts and circumstances of the case, it may not be  said that the landlord has obtained possession of a building or  premises falling within the mischief of third proviso to Section 14(3)  of the Act.  Again, the third proviso to Section 14(3) of the Act may  apply to the facts which were before the court when the  suit/application was decided by the court/authority and the landlord  has obtained possession of a building or a part thereof. But if the  circumstances have changed and the necessity increases, it may be  possible for the landlord to apply under sub-section (3) of Section 14  of the Act on the ground of bona fide requirement.  To such a  situation, third proviso to Section 14(3) of the Act may not prohibit  him from approaching a competent court/authority.  It appears to us,  as observed by the High Court of Punjab and Haryana in two cases  referred to above, that the object of the proviso is to restrict the  landlord from seeking unreasonable ejectment of tenants.  If he was  successful in evicting a tenant from a building and his personal  requirement is fulfilled or satisfied, he cannot invoke Section 14(3) of  the Act again.  But if the requirement still continues or the  circumstances are different, the third proviso to Section 14(3) of the  Act has no application.  The submission of the learned counsel that if  the third proviso to Section 14(3) of the Act is not interpreted  reasonably as submitted by him, it may have to be tested on the touch  stone of Article 14 cannot be said to be totally ill-founded.

       In view of the aforesaid, in our view a fresh look is necessary  on the provision, so that the grey areas noticed by us earlier may be  creased out.   It is, therefore,  appropriate that the matter be placed for  consideration of the question by a Bench of three Judges.   Accordingly, we direct the Registry to place the papers before  Hon’ble the Chief Justice of India for taking an appropriate action.         Ordered accordingly.