Gyan Chand VS. K.B. Lal And Others

Case Law No.1743, Reporting JudgeGoswami,p.K.

Linked as:

Summary

Section 13A was introduced in Rajasthan Premises (Con- trol of Rent and Eviction) Act, 1950 by an Ordinance on September 29, 1975, The Ordinance was later replaced by an Act. Clause (a)of the section provides that no Court shall, in any proceeding pending on the date of the commencement of the Amending Ordinance, pass any decree in favour of a landlord for eviction of a tenant on the ground of non- payment of rent under certain circumstances. Clause (b) provides that in every such proceeding the Court shall, on the application of the tenant, made within 30 days from the date of the presentation of the memorandum of appeal or application for revision, determine the amount of rent in arrears. Clause (c) provides that the provisions of els.

(a) & (b) shall, mutatis mutandis, apply to all appeals, or applications for revision, preferred or made after the commencement of the Amending Ordinance. Explanation (b) to the section defines a proceeding to mean a suit, appeal or application for revision. Section 22(1) provides that from every decree or order passed by the Court under the Act, an appeal shall lie to the Court to which appeals ordinarily lie :from original decrees and orders passed by such former Court.

On the ground of non-payment of rent, a decree of evic- tion was passed against the appellant, who was the respond- ent's tenant. The High Court having affirmed the decree on appeal, the appellant filed an application for special leave to this Court on September 23, 1975. The Ordinance intro- ducing s. 19A was passed on September 29, 1975. This Court granted special leave on November. 1975.

In appeal to this Court it was contended by the appel- lant (1) that since the application for special leave was pending before this Court on the date of the commencement of the Ordinance, the case was governed by s. 13A (a) and (b) of the Act; (2) in the alternative since, as a result of the grant of special leave, an appeal had been pending before this Court, the appellant was entitled to the protection of s. 13A(c) of the Act.

Dismissing the appeal,

HELD: (Per Chandrachud and Goswami, JJ) (1)(a) In order to attract s. 13A(a) a suit, appeal or application for revision must be pending on the date of the commencement of the Ordinance. An application for special leave under Art. 136 of the Constitution cannot be equated with the ordinary remedy of appeal as of right under any provision of law. It is an extraordinary right conferred under the Constitution, within the discretion of the Supreme Court and an application for special leave does not come within the contemplation of appeal pending before the Court under s. 13A(a). The collocation of the words "suit, a. appeal or application for revision" used in the explanation to denote "proceeding", shows that the suits and regular appeals therefrom as provided under the ordinary law and applications for revision alone are intended. [329C & B]

325 (b) The expression "presentation of memorandum of appeal"

under s. 13A (c) chimes with the construction that the legislature clearly intended to include only the hierarchy of appeals under the Code of Civil Procedure. [330D]

"from the date of presentation of the memorandum of appeal".

There is no provision in an appeal by special leave for presentation of memorandum of appeal, under r. 11 of O.XVI. of the Supreme Court Rules, on the grant of special leave, the petition for special leave is treated as the petition of appeal. In contrast under O.41 r. 1(1) of the Code of Civil Procedure, every appeal shall be preferred in the form of a memorandum signed by the appellant and pre- sented to the Court. [329H]

(d) The terminus a quo for the purpose of s. 13A(c) is from the date of presentation of the memorandum of appeal.

Since no petition of appeal has to be presented in the Supreme Court after the special leave is granted, such a contingency of appeal to this Court by way of special leave is not intended to be covered by s. 13A(c). [330C]

(2) Section 22 cannot assist the appellant in this case.

While s. 22(1 ) qualifies the decree or order as being

"under this Act" s. 13A does not describe "proceeding" to be under the Act. [330E; 332C]

The Act provides for the institution of serious in two different forums namely, the lowest Court of competent jurisdiction, which is the Civil Court, and the other before a Magistrate on the executive side. [332F]

Appeals or applications for revision under s. 13A(c) relate only to decrees in suits-for eviction based on the ground of non-payment of rent. Such appeals or applications for revision under s. 13A(c) are not contemplated under s.

22. Decrees or orders passed by the Court under the Act, against which appeals and revisions are provided in s. 22, do not take in decrees and orders passed in a suit for eviction. Usual rights of appeal and revision will be available in the latter class of suits. To hold otherwise will be to deny a right of second appeal to a litigant, whether it is landlord or tenant, against a decree in an eviction suit which is clearly not the intention of the legislature. Second appeal is only barred in case of de- crees or orders passed under the Act. [332H]

(Per S. Murtaza Fazal Ali, J.) Proceedings in this Court would not fall within the ambit of cls. (a) and (b) of s. 13A. [338F]

(a) The Explanation to the section clearly shows that the word "proceeding" refers only to such proceedings as may be pending in any suit, appeal or application for revision under the Act. The use of the words "such proceedings" in s. 13A(b) shows that the proceedings contemplated by s. 13A are really proceedings referred to in the explanation, which means proceedings in the nature of suits, appeals or appli- cations for revision as referred to in s. 22. [338E-F]

(b) Section 13A(c) would not apply to the present case.

The benefit conferred by el. (c) would apply only to appeals and applications for revision filed under the Act as provid- ed by s. 22. The true interpretation of cl. (c) would be that this clause contemplated the same proceedings as con- templated by els. (a) and (b), namely, proceedings indicated in the explanation. [338G-H]

(c) An appeal by special leave is a special remedy provided by Art. 136 of the Constitution and the legislature must be presumed to be aware of this special remedy. If the intention was to extend the benefit to appeals for special leave, it should have been clearly stated in el. (c).

[339B]

(d) The Supreme Court Rules make a clear-cut distinction between an application filed for the grant of special leave and a petition of appeal, if the leave is granted. The constituents and ingredients of an application for special leave to appeal are quite different from those of a memoran- dum of appeal under O.X.LI r. 1(2) of the Code of Civil Procedure. [339D]

326 (e) The provisions of O.XLI, r. 1(2) C.P.C. require that the memorandum of appeal has to set forth under distinct heads, the grounds of objections to the decree appealed from. No such requirement is to be found in the Supreme Court Rules either for an application for special leave to appeal or in the petition of appeal which is required to be filed if certificate by the High Court is granted. The legislature must be. presumed to be aware of the difference between an application for special leave to appeal and a memorandum of appeal. Though r. 11 of O.XVI of the Supreme Court Rules provides that the petition for special leave would be treat- ed as a petition of appeal after the special leave is grant- ed,it cannot be equated with a memorandum of appeal contem- plated by s. 13A(c) of the Act. [339G-H]

(f) The fact that s. 13A(c) mentions the words "from the date of the presentation of the memorandum of appeal or application for revision" clearly indicates that the reme- dies contemplated by the Act are remedies of appeal and revision as provided for by s. 22 of the Act. [339H]

See the full content of this document

Extract

Gyan Chand VS. K.B. Lal And Others

PETITIONER: GYAN CHAND Vs.

RESPONDENT: K.B. LAL AND OTHERS

DATE OF JUDGMENT06/12/1976

BENCH: GOSWAMI, P.K.

CHANDRACHUD, Y.V.

FAZALALI, SYED MURTAZA

CITATION: 1977 AIR 858 1977 SCR (2) 324 1977 SCC (3) 317

CITATOR INFO : D 1988 SC 716 (8)

ACT: Rajasthan Premises (Control oF Rent and Eviction) Act, 1950--S. 13A-Scope of.

Application for special leave under Article 136 of the Constitution--If could be equated with ordinary right of appeal.

Order 16 of Supreme Court Rules and Order 41 Civil Procedure Code--Distinction.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1743 of 1975.

(Appeal by special leave from the judgment and order dated 5.9.1975 of the Rajasthan High Court in S.B. Civil 2nd Appeal 302 of 1974)

M. Jain,., for the appellant.

S.C. Agarwala and V.J. Francis, for Respondents 1 & 2.

The Judgment of Y.V. Chandrachud and P.K. Goswami, JJ. was delivered by Goswami, J.S. Murtaza Fazal Ali, J. gave a separate Opinion.

GOSWAMI, J. The facts of the case relating to this appeal by special leave have been fully described in the judgment of our learned brother, Fazal Ali, J. We agree with the conclusion reached by him that this appeal should be dismissed. We also agree with our learned brother that the appeal should be dismissed on the merits.

However, so far as the question of law that arises in this appeal, we would like to confine our decision to the reasons given hereinafter.

The question of law ,that arises in this appeal is as to whether an application for special leave or an appeal by special leave to thin, Court is an "appeal" within the meaning of section 13A of the Rajasthan Premises (Control of Rent and Eviction) Act 1950, as amended by the Rajasthans Ordinance No. 26 of 1975 (briefly the Act). We should, therefore, read section 13A: "13A. Special provisions relating to pend- ing and other matters: Notwithstanding anything to the contrary in this Act as it existed before the commencement of the Ordinance or in any other law, (a) no court shall, in any proceeding pending on the date of commencement of the amending Ordinance pass an...

See the full content of this document