RAJ KANTA v.

FINANCIAL COMMISSIONER, PUNJAB AND ANR.

May 7, 1980

[S. MURTAZA FAZAL ALI AND P. S. KAILASAM, JJ.]

Punjab Security nf Land Tenures Act, 1953, Section 9 intetpretation- Words and Phrast.•s, tneaning of the term 'regularly' in Section 9(i) (if) of the Act-Whether a 'single default' in payment of rent would attract tlie provi'sions of Section 9(1) (ii).

Pera Ram, Ganga Ram, Bhago and Kalu Ram were the tenants of agricultural land owned by Mrs. Raj Kanta, the appellant. The tenants made separate pplications under section 18 of the Punjab Security of Land Tenures1 Act, 1953, on September 4, 1961 for purchasing the land held by them from the land ovn1er. These applications werei allowed by the Assistant . Collector on October 31, 1961.

Accordingly, the tenants deposited the first ins.talment m Nove.mber 1961. Ultin1ately, however, the tCnants did not pay the rent of the respective holdings for Kharif 1961. It is common ground that the last date by which the rent for Kharif 1961 was payable by the tenants to the land owner \Vas January 15, 1962 and thatl the tenant did not pay the. rent and did not show sufficient cause for the same. Jn view of the default, the land owner filed separate applications under s. 9(1) (ii) of the Act on the ground that as the tenants had failed to pay the rent regularly without sufficient cause, they

v; ee entitled to be ejected by the land owner.

The applications for ejectment \ve!e, hov; ever, dismissed .. but on appeal the Collector allowed the appeal:s by his order dated May 31, 1962. Second appeals preferred by the tenants in the ejectment proceedings were dismissed by an order dated 5-11-62 of the Commissioner and ultimately upheld by the Financial Commissioner by his Order dated December 21, 1962.

Having failed before the Revenue courts~ the tenants-respondents filed a writ petition in the High Court which washeard by a single judge. But in the case of Kalu Ram the Financial Commissioner allowed the petition and rejected the prayer for his ejectment by the land owner as a result of whlch the land owner filed a writ petition in the High Court. All the petitions were consolidated and , heard together, by the single Judge who allowed the writ petition of the tenants and quashed the order of the Financial Commissioner directing ejectment of the tenan~. The writ petition of the land owner against Kalu Rin1 was, however, disntlssed. Hence, the four appea{s by the land owner-appellant to this Court.

Allowing the appeals, the Court

HELD : I. The Punjab Security of Land .Tenures Act 1953 is a piece of social legislation meant to ameliorate the lot the tenants by conferring on them the status of a permanent tenancy or the, rights to purchase the land on payment of instalments. At the. same time, the landlords within a very limited

sphere have been assured protection in respect of the rights which they possess in the ]and and have been given thei right to eject the tenants on specified grounds which are contained in the various sub-clauses of section 9' of the Act.

Sub-Clause. (ii) is one such sub-clause. This right was absolute and could not

I r '

RAJ KANTA v. FINANCIAL COMMR 1007

be curtailed by interpreting clause (ii) of section 9(1) of the Act through a A process of twisting the law and doing' violence to the language of the section, especially when it admits of no ambigoity. [1010 A-C, IOI! A-Bl

. )..._ Bhagiruth Ram Chand v. State of Punjab and Ors., A.I.R. 1954 Punjabi

\ -~

' '

167: referred to.

t 2. The word 'regular' which is derived from the word 'regula' which means 'rule', means in a regular manner, methodically, in due order and postulates a state of symmetry, consistency and uniformity.

In other words, 'regular' means a consistent course of conduct without any break or breach.

[1011 B, D, F & 1012 A]

Arab Bank v. Ross, [1952] 2 Q.B.D., 216; Hc11nmond v.

London County Council, [1931] Chancery 540; quoted with approval.

3. Although the Act is heavily loaded in favour of the rights of the tenants so as to confer on them several important benefits and privileges yet as the Act is confiscatory in nature, so far as the landlord is concerned, it should. be strictly construed within the limited spherei . ina5mnch as the landlord is conferred limited grounds on which ejectment is permissible under s. 9 of the Act which appears to be a safety valve for the limited rights that are left with the landlord under the Act. In order therefore to advance the object of the Act so as to assure the lirnited protection to the landlord, the language en1ployed in the various clauses of s. 9 has to be construed so Mi to give real benefit to the landlord within the limited range that the Section operates.

[1012 D-F]

A correct interpretation of the plain language' and the words and phrases used in clause (ii) of section 9(1) of the Act would be that the word 'regular' connotes a. consistent course of conduct without any break or breach and the 'regular payment of rent' would mean that the rent should be paid punctnally without 3.ny default or laxity. The Legislature clearly intended to use the word 'regularly' to mean payment of rent in this manner. The Legislature never contemplated that a single default could be condoned. The word 'regularly' has been used immediately after the words 'fails to pay the rent' 3.nd is followed by the words. "without sufficient cause", The Legislature clearly provided that if the tenant had committed a default Whether one, two or more, the

same could only be condoned if sufficient cause is shown and not otherwise.

[1012 A-Dll

4. The words "failure to pay rent regularly without sufficient cause'' in Sertion 9 ( 1) (ii) of the Act cause postulate the !ollowiD..11 conditions :

1. there must be a failure on the part of the tenant to pay rent;

2. such failure must be to pay rent regularly, that isl to say, the rent should be paid punctually consistently without any break or breach;

1. if there is any default -ranging from one to several, the tenant has got to show sufficient cause il1 his case is to be taken out of the mischief of s. 9(1)(ii). [1012 F-H]

5. It i~ well settled that the Legislature does not waste words and every word that is used by it must be Presumed to have some significance. The function of the Court is 'jus deoere' not 'jus dare'.

The Court cannot, therefore, in

A order to promote its social philosophy turn and twist the plain and unambi~ guous language of the law so as to ascribe to it a meaning different from the one intended by the Legislature. The words 'without sufficient cause' clearly indicate that in order to escape ejectment, the tenant must at least be regular in payment of the rent and if he wants to get rid of the consequences of his default, he must prove sufficient cause. Reading the entire :5entence, the cumulative etfect therof unmistakably is tha.t the Act includes even a single defauit B and that is why instead of using the word 'default', the word 'regularly bas been

employd which is immediately followed by the words 'without sufficient cause.

If the legislature intended that a single default would not entitle a landlord to eject the tenant under the ACt, then it would ha<ve said so expressly either by way of an explanation or otherwise in clause (ii) of s. 9(1) of the .Act.

[1013 C-1']

6. While the Explanation to section 9(1) of the Act takes care to define as. ro \Vhen a tenant would be deemed to be in arrears and fixes a period of two months, indeed if the intention of the legislature W<h th'.l.t a single default in payment of rent could be condoned, it should have included this incident also in the explanation. This provides, therefore, the most important intrinsic circumstance to support the interpretation of clause (ii) of section 9(1) of the Act~

[1014 A-B]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1270 & 1317-1319 of 1970.

From the .Judgment and Order dated 5-2-1970 of the Punjab and Haryana High Court in L. P. A. Nos. 96-99 of 1966.

Kapil Sibal, J. B. Dadachanji and Shri Narain for the Appellant E S. Manchanda, Mrs. Shobha Dikshit and Mrs. Urmila Kapoor,

for the Respo!ldents.

The Judgment of the Court was delivered by FAZAL ALI, J.-These appeals by certificate are directed against a Common judgment dated February 5, 1970 of the Punjab and Haryana High Court by which a Letters 'Patent Appeal agai'nst a decision of the Single Judge was dismissed.

~ ..

The facts of the case lie within a narrow compass and all the I appeals involve a short point of law relating to the interpretation of -, ' s.9 of the Punjab Security of Land Tenures Act, 1953 (hreinafter \ referred to as the 'Act'). The history of the case has been detailed G in the judgment of the High Court and it is not necessary for us to ,... repeat the same.

Shorn of unnecessary details the appeals aros_e out of applications made by Pera Ram. Ganga Ram, Bhago and Kalu Ram who were the tenants of agricultural land owned by Mrs. Raj Kanta, the appellant in these appeals. The tenants made separate applications under s. 18 of the Act on September 4, 1961 for purchasing the H . land held by them from Mrs. Raj Kanta (hereinafter called the 'land owner').

These applications were allowed by the Assistant Collector on October 31, 1961.

Accordingly. the tenants deposited the

first instalment in November 1961.

Ultimately, however, the tenant~ did not pay the rent of the respective holdings for Kharif 1961. It is common ground that the last date by which the rent for Kharif 1961 was payable by the tenants to the land owner was Janu"ry 15, 1962

and that the tenant did not pay the rent and did not show sufficient cause for the same. In view oI the default, the land owner filed separate applications under s.9 (1) (ii) of the Act on the ground that as the tenants had failed to pay the rent regularly without sufficient cause, they were entitled to be ejected by the land owner. The applications for ejectment were, however, dismissed but on appeal the Collector allowed the appeals by his order dated May 31, 1962.

Second appeals preferred by the tenants in the ejectment proceedings were dismissed by an order dated 5.11.62 of the Commissioner and ultimately upheld by the Financial Commissioner by his Order dated December 21, 1962.

Having failed before the Revenue courts, the tenants-respondents filed a writ petition in the High Court which was heard by a Single Judge.

But in the case of Kalu Ram the Financial Commissioner allowed the petition and rejected the prayer for his ejectment by the land owner as a result of which the land owner filed a writ petition in the High Court.

All the petitions were consolidated and heard together, by the single Judge who allowed the writ petition of the tenants and quashed the order of the Financial Commissioner directing ejectment of the tenants. The writ petition of the land owner against Kalu Ram was, however, dismissed. Hence, the four appeals by the land o'."'ner-appellant in this Conrt. 1

The only point that has been canvassed before us is a~ to whether or not the High Court was right in interpreting s.9 of the Act by F holding that the term 'regularly' used in s.9 (1) (ii) would not include a single default.

While the Revenue courts had held that the mere fact that the tenants made a single default in payment for the rent for Kharif 1961 was sufficient to attract the penalty of ejectment envisaged bys. 9(1) (ii) of the Act, the High Conrt took the view that on a proper interpretation of the term 'regularly' it will appear that the G legislature did not contemplate that ejectment should be ordered straightaway even if a single default, though unexplained, is committed by the tenant which interpretation would run against the avowed object of the legislation which was to advance and ameliorate the lot of the tenants.

The High Court had considered the matter al very great length and placed a very wide interpretation on the term H 'regularly' so as not' to include within its ambit one single default.

It has also referred to a number of authorities and Dictionaries to

SUPREME COURT REPORTS (1980] 3 S.C.ll.

show that the word 'regularly' does not mean absolute symmetry.

Having gone through the reasons given by the High Court we are unable to agree with the view taken either by the single Judge or the Division Bench of the High Court.

There can be no doubt that the Act is a piece of social legislation meant to ameliorate the lot of the tenant,; and to further the rights of the tenants by conferring on them the status of a permanent tenancy or the rights to purchase tl)e land on payment of instalments.

At the same time, we cannot overlook the fact that the landlords within a very limited sphere have been assured protection in respect of the rights which they possess in the land and have been given the right to eject the tenants on specified grounds which are contained in the various sub-clauses of s. 9 of the Act.

One such sub-clause is sub-clause (ii) which falls for interpre!'ation in. the instant case.

Section 9(1) as also clauses (i) and (ii) may be extracted thus :-

"9. Liability of tenant to be ejected.- I. Notwithstanding anything contained in any other law for the time being in force, no land-owner shall be competent to eject a tenant except when such tenant-

(i) is a tenant on the area reserved under this Act or is a tenant of a small land-owner; (or)

(ii) fails to pay rent regularly without sufficient cause; E •

While interpreting the word 'regular! y' the High Court seems to have overlooked two important circumstances.

In the first place, the word 'regularly' has been .used immediately after the phrase 'fails to pay rent' and is followvd by the words 'without sufficient cause'.

F Secondly, there "is nothing in the section to indicate that the legislature intended to exclude one single default. The High Court attempted to supply words to the section which are not there. In doing so it has failed to consider that i{ once the court was to lay down a particular line of demarcation by extending the connotation of the word 'regularly' to exclude one default, it is difficult to explain why the legislature G contemplated only one default and not two or three for that matter.

In order to construe the plain language of s.9(1) (ii) which admits

I f ~

of no ambiguity, it may be necessary to look to the object and the purposes of the Act. In the case of Bhagirath Ram Chand v. State { of Punjab & Ors.(') a full Bench of the Punjab & Haryana High Court

H held that the Preamble of the Act stated that it was intended to provide for the security of land tenure and other incidental matters. It

(I) A. I. R. 1954 Punjab 167.

·~

is no doubt true that the main thrust of the provisions of the Act are directed towards preventing the landlords from ejecting their tenants except on the grounds mentioned in s.9; but at the same time, it cannot be denied that the legislature undoubtedly provided some protection to the landlords by conferring on them a limited right to eject their tenants and within this limited sphere, the right was absolute end could not b, e curtailed by interpreting clause (ii) ofs. 9(1) of the Act through a process of twisting the law and doing violance to the language of the section. To begin with, the word 'regular' is derived form the word 'regula' which means 'rule' and its first and legitimate signification, according to Webster, is 'conformable to a rule, or ag~ reeable to an established rule, law, or principle, to a prescribed mode.

In Words and Phrases (Vol. 36A, p.241) the word 'regular' has been defined as 'steady or uniform in course, practice or occurrence, etc., and implies conformity to a rule, standard, or pattern'. It is further stated in the said Book that 'regular' means steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation. The word 'regular' means in a regular manner, methodically, in due ordet.

Similarly, Webster's New World Dictionary defines 'regular' as 'consistent or habitual in action, not changing, nruform, conforming to a standard or to a generally acccepted rule or mode of conduct :

In the case of Arab Bank Ld. v. Ross(') while construing tbe word~

'complete and regular', Romer LJ observed as follows:- 'E "It wold accordingly 'follow, in my judgment, in the present case that the omission of the word "company" from the indorsement would reasonably give rise to a doubt whether in point of personality the payees and the indorsers were necessarily the same; and if so the bills cannot, as I think, be said to be "complete and regular" on their face."

The view of the Judge clearly indicates that the word 'regular' postulates a state of symmetry, consistency and uniformity.

In Hammond -v. London County Council(') while construing the tem1 "rcgularlv

employed", Farwell J. observed as follows:-

"It is of course a question of fact in each case whether a man was regularly employed or not, but in this particular case I think that the plaintiff, who was employed for the five years and paid his wages day in and day out during that period as a servant or officer of the defendants' predecessors, was "regularly employed" during that period."

(1) [1952] 2 Q. B. D. 216.

2) [l9 31] 1 Chancery 540.

This interpretation also supports our view that the weird 'regular' means a consistent course of conduct without any break or breach.

On a consideration of the authorities mentioned above, it seems to us that the legislature clearly intended to use the word 'regularly' to mean payment of rent in a uniform and consistent manner without any breach or default. The legislature never contemplated that a single default could be condoned.

This inference is fortified by the words "without sufficient cause". In other words, the legislature clearly provided that if the tenant had committed a default, whether one, two or more, the same could only be condoned 'if sufficient cause is shown and not otherwie. If, however, we accept the interpretation of the High Court, then the words "sufficient cause" becomes, absolutely redundant.

On an overall consideration of the matter, a correct interpretation of the plain language and the words and phrases used in clause

(ii) of s.9(1) of the Act seems to tis that the word 'regular' connotes a consistent course of conduct without any break or breach and the words 'regular payment of rent' mean that the rent should be pi!KI punctually without any default or laxity.

Although the Act is heavily loaded in favour of the rights of the tenants so as to confer on them several important benefits and privileges yet as the Act is confiscatory in nature, so far as the landlord is concerned it should be strictly construed within the limited sphere inasmuch as the landlord is conferred limited grounds on which ejectment is permissible under s.9 of the Act which appears to be a safety valve for the limited rights that are left with the landlord under the Act.

In order therefore to advance the object of the Act so as to assure tjlle llmited protection to the landlord, the language employed in the various clauses of s. 9 has to be construed so as to give real benefit to the landlord within the lin1ited range that the section operates.

In the instant case, The words 'failure to pay rent regularly without sufficient cause' postulate the following conditions :-

(1) there must be a failure on the part of the tenant to pay rent;

(2) such failure must be to pay rent regularly, , that is tc say, t the rent should be paid punctually consistently without ' any break or breach;

H l3) if there is any default ranging from one to several, the tenant has got to show sufijcient cause if his case is to be taken out of the mischief of s. 9 (1 )(ii).

We might add at the risk of repetition that the use of the words 'without sufficient cause' clearly indicates that the intention of the legislature was that in order to escape ejectment, the tenant must at least be regular in payment of the rent and if he wants to get rid of the conseqnences of his default, he must prove sufficient cause. If, however, we construe the word 'regularly' as meaning at regular intervals so as to include a single default, then the term 'without sufficient cause' becomes absolutely redundant.

For instance, even if a single default in the pajoment of the rent is committed by the tenant, his case could be taken out of the ambit of clause (ii) of s. 9(1) without insisting on the tenant to prove sufficient cause for this single default.

That would, therefore, make the words 'sufficient cause' meaningless in such cases. It is well settled that the legislatnre does not waste words and every word that is used by it must be presumed to have some significance. The function of the Court, says Sir Fracis Bacon, is "ius decere and not ; us dare" (to interpret the law and not to make the law). The Court cannot, therefore, in order to promote its social philosophy tnm and twist the plain and unambiguous Ian-· guage of the law so as to ascribe to it a meaning different from the one intended by the legislature.

We aw constrained to observe, with due respect, that this is what the High Court seems to have done in this case by aqopting a puerile and pedantic process of reasoning.

In these circumstances, reading the entire sentence, the cumulative effect thereof umnistakably is that the Act includes even a single.

E default and that is why instead of using the word 'default' the word 'regularly' has been employed which js immediately followed by the , words 'without sufficient cause'.

Moreover, we might mention that in the various Rent Acts passed in the States, ejectment is permissible in some cases where there is a single default, in other cases where there is more than one default and so on.

If the legislature intended that a single default would not entitle a landlord to eject the tenant under the Act, then it would have said so expressly either by way .of an explanation or otherwise in clause (ii) of s. 9(1) of the Act.

Finally, we cannot lose sight of the explanation used for the various clauses ot s. 9 (1) which runs thus :

"Explanation.-For the purposes of clause (iii), ,,; tenant shall be deemed to be in arrears of rent at the commencement of this Act, only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execution of decree or order, directing him to py such arrears of rent."

While the explanation takes care to define as to when a tenant would be deemed to be in arrears and fixes a period cf two months,

indeed if the intention of the legislature was that a single default in payment of nt could be condoned, it should have included this incident also in the explanation.

This provides, therefore, the most important intrinsic circumstance to support the interpretation which we have put on clause (ii) of s.9(1) of the Act and which invalidates the reasons given by the High Court.

For the reasons given above, we are satisfied that the High Court took an erroneous view of law in interpreting clause (ii) of s. 9(1) of the Act as the tenants have been proved, in this case, to have committed default in the payment of rent for Kharif 1961, they must be held to have failed to pay the rent regularly without sufficient cause as envisaged by clause (ii) and are, therefore, legally entitled to ejectment. The view taken by the High Court is• legally erroneous and cannot be supported. In Civil Appeal No. 1319 of 1970, an objection was taken by the appellant that the appeal had abated as the heirs of respondent No. 1, Ganga Ram, were not brought on record.

This objection has been overruled and we have allowed substitution as per our separate order dated 28th April 1980.

The result is that thei appeals are allowed, the judgment of the High Court is set aside and the order of the Collector directing ejectment of the tenants is restored.

The wrK petitions filed by tenants before the High Court stand dismissed and the one filed by the appellant against Kalu Ram stands allowed. In the circumstances of the case, there will be no order as to costs.

S. R.

A ppealJ' alwwed ..

I ,~ \

RAJ KANTA

FINANCIAL COMMISSIONER, PUNJAB AND ANR

May 7, 1980

S. MURTAZA FAZAL ALI

P. S. KAILASAM, JJ.

Section 9

Section 9(i)

Section 9(1)

Kalu Ram

Raj Kanta

section 18

September 4, 1961

s. 9(1)

May 31, 1962

December 21, 1962

Kalu Rin1

Tenures Act 1953

section 9

section 9(1)

s. 9

s. 9

section 9(1)

s. 9(1)(ii)

s. 9(1)

section 9(1)

section 9(1)

B. Dadachanji

Narain for the Appellant E S. Manchanda

Shobha Dikshit

Urmila Kapoor

FAZAL ALI

Pera Ram

Ganga Ram

s. 18

Kalu Ram

s. 9

Section 9(1)

H held that the Preamble of the Act

Romer

Farwell

s. 9

s. 9

s. 9(1)

Fracis Bacon

s. 9(1)

s. 9

s. 9(1)

Ganga Ram

28th April 1980


JAMNADAS DHARAMDAS A

DR. J. JOSEPH FERREIRA AND ANR.

May 7, 1980

[A. C. GUPTA, S. MURTAZA FAZAL ALI AND P. S. KAILASAM, JJ.] B

Bon1bay Rents, Hotel and Lodging House Rates, Control Act, 1947, Section 12(3){b) and Section 28, scope of-Jurisdiction of the Court of Small

Causes, Bombay under section 28-Decree for possfflsion of vacant land lvoultl refer only to taking over effective possession of the land by. decree holder with the superstructure if any.

By a lease dated 14th December 1948, the respondent plaintiff gave to the appellant defendant on leaee two plots Nos. 12 and 13 situated at Sitaladevi Temple Road, Mahim for a period of 15 years commencing from 1st Decem~

ber 1948 at the yearly rent of Rs. 10,200/· payable in equal quarterly instal ments of Rs. 2,550/. in advance. The lease deed provided that the appellant was at liberty to erect building and structures on the two plots of land. The appellant agreed to pay and discharge all taxes and outgoings imposed on the above two plots a-s also on the buildings to be erected by the defendant. On the exprration of the term of the lease, the appellant agreed to deliver back the possession of two plots to the respondent 'free of all buildings, erections and structures and levelled and put in gocx:i order and condition to the sati$faction of the respondent'. Clause IV of the lease provided for determina-tion and forfeiture of the lease in the event of the rents having been allo\ved to be in arrears for more than 30 days or upon breach of conditions of the lease. The forfeiture clause also provided that upon forfeiture the respondent would be entitled to re-enter upon not only the two plots of land but also the structures standing thereon.

The appellant constructed on plot No. 12 a three-storied building consisting of about 72 flats, shops with carpet area of 13,000 square feet and the cost of the building with superstructures in 1949 was about Rs. 6,60,000/-. Since the appellant defaulted not only in payment of rent but also in payment of dues in respect of lands and buildings which he erected, the respondent filed a suit in 1951 for ejectment. The appellant filed an application for the fixation of standard rent and the standard rent was fixed at Rs. 435/- per month from September 1,

1950. A compromise was entered into between the parties in the suit on 5th March. 1954, by which they agreed on a rent of Rs. 435/· per month from September 1950 to February 1954. An appeal a-gainst the fixation of standard rent of Rs. 435/· per month was disposed of on 28th June, 1955 whereby standard rent was refixed at Rs. 620/· p.m. from !st September 1950.

The appellant again defaulted in payment of rent and taxes. The arrears of rent amounted to Rs. 11.472.30 and taxes to the extent of Rs. 1.12,053.60

for the period ending 30th September 1960. The respondent by a notice determined and forfeited the lease and called upon the appeUant to deliver possession H of the lands alongwith structures thereupon. The notice also specified that the notice was not only a notice of forfeiture, but also notice under section 12 of the Bomby Rents, Hotel and Lodging House Rates Control Act, 1947. On !st

A Decemb.er 1961, as the appellant failed to pay the arrears of rent and the taxes, the respondeut filed the. suit for ejectment and prayed for a decree for ejectlnent

a.gainst the appellant in respect of two plots of land Nos. 12 and 13 and also the buildingS i!Dd structures standing thereon, and claimed arrars of rent of H.s. 11,472.50 and mesne profits at the rate of Rs. 620/- p.1n. 'fhe. appellant in order to g<t the benefit of section 12 ( 3 )( b) of the Rent Control Act, 194 7, applied fvr time for' making depos.it of arrears. of rent. 'fhe appellant could B not make the payment within the extended time allowed, but after the issues were framed and the suit was taken up for trial, he deposited the arrears of rent and cost in the Cour~ after the -Court made an endorsement "accept without prejudice''.

Sgbsequently, on 11th November, 1964 the Trial Court passed a deqree for eJectment in respect of plots and the buildings in favour of the respondent. A decree was granted regarding arrears of rent and for mesfle profilB. c Both the appellant and the respondent preferred appeals and the Bench of two Judges of the Court of Small Causes by a common judgment disposed of both the appeals on 4th April 1965. The' Appellate Court held that it had no jurisdiction to give a decree for ejectment in respect of the two buildings constructed on plot No. 12 by the appellant. It held that clause IV of the lease which permitted forfeiture was in the natnre of penalty and the appellant was D entitled to be relieved from the liability to deliver possession of the buildings constructed by him upon forfeiture by the respondent. It also found that the appellant was entitled to be relieved from the penalty of forfeiture of the lease under section 114 alld 114A of the Transfer of Property Act. It rejected the plea of the appellant that he was always ready and willing to pay arrears of rents and found that because of repeated defaults the appellant was not entitled for relief from ejectment under section 12(3J(b) of the Bombay Rent Act.

E The respondent filed a revision petition against the order of the appe, llate Court declining to direct possession of the two buildings and the appe1la-nt-tenant filed an appeal against the order of appellate Court directing his ejectment from the two plots of lands Nos. 12 and 13. The High Court disposed of both the revision petition and the cross appeal by a common judgment wheJreby i~ allowed the revision petition of the respondent/landlord and dismissed the peal F of the appellant'/ tenant and decreed the suit of the respondent directing the appe:Jlant to deliver peaceful possession of the land demised to him and also buildings which have been constructed by the appellant on the demised lands.

It also confirmed the decree regarding arrears of rents and mesne profits.

Hence the appeal by _certificate.

Dismissing the appeal, the Court.

HELD : !. Section 28 of the Bombay Rent Act, 1947 confers jurisdiction on the Court of Small Cause, Bombay to entertain and try any suit for proceedings between a landlord and tenant relating to recovery of rents or possession of any premises to which any of the provisionSr of that part applied.

The jurisdiction thus conferred enables the Court to try any suit between the landlord and the tenant relating to recovery of possession of the premises. [1022 A-B]

Importers and Manufacturers Ltd. v. Pheroze Framroze Tariiporel!<ata and Ors., [1953] 3 SCR 266; Babulal Bhura Mal and Anr. v.

Nandra1n Shivram and Ors., [1959] SCR 367; followed.

I ("

-;...J

~ n

I~ '1

' r

~I It•

Raizado Tapen Das and Anr. v. Ml s Gorakhram Gokalchand [1964] 3 SCR A 214; Sushi/a Kashlnath Dhonde Gnd Or.. v .. Harl/a/ G<Nindji Bhogani and Ors.,

[1970] 2 SCR 950 explained and distinguished.

2. The conditions specified in section 12 (3) (b) of the Bombay Rent ~; 1947 will have ta be strictly observed by the tenant if he wants to avail himself Oil' the benefits provided under the section. In the instant case, the persistent defawt of the appellanttenant on various occaoions and his clear statement that B he Was not in a position to pay the arrears would exclude any reJief under section 12(3 )(b) of the Act The respondent-plaintiff would be entitled to a decree for possession of the plots under the provisions of the Bombay Rent Act and in effect the decree for possessioo of the land would mean that the l;; nd should be delivered to him without the structures. [1023 D-G, 1025 O.E]

Ganpat Lodlla v. Sachikant Vishnu Shivalc, [1978] 3 SCR. 198; applied.

3. To contend that as the respondent-plaintiff has sought, two reliefs one under the Bomhay Rent Act and another under the contract, the entire plaint must be rejected is wrong. In aSking for the relief for possession of the land. the respondent-plaintiff is entitled to incidental and consequential reliefs such as for effectively taking possession of the plot without the structure, that is he is. entitled to ask for the demolition of the superstructure.

The prayeri in the plaint asking for possession of the land including the structures would not take the suit out of the competence of the Small Causes Court. [1025 E, F-G]

Rarnachandra Raghunath Shirgaonkar v. Vishnu Balaji Hindalekar,

AIR )920 Born. 87; Khimjee Thakorsee v. Pioneer Fibre Co. Ltd., AIR 1941 Born. 337 and K.· Arumugham Naicker and Anr. v. Tiruvalluva N.alnar Temple by its Trustee, AIR 1954 Mad. 985; approved.

CML APPELLATE JURISDICTION : Civil Appeal No. 531 of 1979.

Appeal by Certificate from the Judgment and Order dated the 23-10-1969 of the Bombay High Court in S.C.A. No. 1596 of 1965.

D. V. Patel, N. N. Keshwani and R. N. Keshwani for the Appellant.

I. Sorab; ee, R. Daruwala, P. G. Gokha/e and J. R. Gagarat for the Respondent.

The Judgment of the Court was delivered by

KAILASAM, J.

This appeal is by the defendant-tenant by certificate granted by the High Court of Judicature at Bombay against its judgment dated 21-1-69 is Special Civil Application No. 1596 of 1965 granting a decree directing that the defendant shall vacate and deliver peaceful possession not only of the land demised to him under the lease in the suit but also of the three buildings which have been cons- \ tructed on the demised land.

By a lease deed dated 14th December, 1948 the plaintiff !(ave to the defendant on lease two plots Nos. 12 and 13 situated at Sitaladevi 6-610SCl/80

SUPREME COURT REPORTS [1980] 3 s.c.It.

Temple Road, Mahim for a period of 15 years commencing from 1st December, 1948 at the yearly rent of Rs. 10,200/- payable in equal quarterly instalments of Rs. 2,550/- in advance.

The lease deed provided that the defendant was at liberty to erect building and structures on the two plots of land.

The defendant agreed to pay and discharge all taxes and outgoings imp<l6ed on the 'above two plots as also on the buildings to be erected by the defendant On the expiration of the term of 15 years or sooner termination of the lease the defendant agreed to deliver back the possession of the two plots to the plaintiff 'free of all buildings, erections and structures and levelled arid put in good order and condition to the satisfaction of the plaintiff'.

Clause . IV of the lease provided for determination and forfeiture of the lease in the event of the rents having been allowed to be in arrears for more than 30 days or upon breach. of conditions' of the lease.

The forfeiture clause also provided that upon forfeiture the plaintiff would be entitled to re-enter upon not only tl:\e two plots of land but also the structures standing thereon.

The defendant defaulted not only in payment of rent but also in payment of taxes due in respect of lands and buildings which he erected.

The plaintiff filed a suit in 1951 for ejectrnent. The defendent filed an application for the fixation of standard rent and the standard rent was fixed at Rs. 435 /- per month from September 1, 1950.

A compromise was entered into between the parties in the . suit on 5th March, 1954 by which the parties agreed on a rent of Rs. 435/- per month from September, 1950 to February, 1954.

An appeal against the fixation of standard rent of Rs. 435/- per mensem was disposed of on 28th June, 1955 whereby standard rent was fixed at Rs. 620/- per month from 1st September, 1950.

The defendant again defaulted in payment of rent and taxes.

The arrears of rent amounted to Rs. 11,4 72.30 and taxes to the extent of Rs. 1, 12,053.60 for the period ending 30th September, 1960. The plaintiff by a notice determined and forfeited the lease and called upon the defendant to deliver possession of the lands alongwith structures thereupon.

The notice also specified that the notice was not only a notice of forfeiture but also notice under section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act).

On 1st December, 1961 as the defendant failed to pay the arrears of rent and the taxes, the plaintiff filed the present suit and pra, yed for adecree for ejectrnent against the defendant in respect of two plots of land anil also the buildings and structures standing thereon, and claimed arrears of rent of Rs. 11,472.30 and mesne profits at the rate of Rs. 620/-

~· if () "

per month. 'I)le defendant filed written statemegJ and denied the allegations made in the plaint.

The defendant in order to get the benefit of the provisions of Section 12(3) (b) of the Bombay Ren!S Act applied for time for making deposit of arrears of rent.

The application was taken on the 20th June, 1962 and further time was

sranted to enable the defendant to make the deposits.

Tune was . extended on several occasions and finally on 6th Augnst, 1962, the defendant informed the court that he was not in a position to make any deposit at all.

After the issues were framed and the suit was taken up for trial, Ilic defendant once again applied for relief under S. 12(3)(b) of the Act and prayed that he may be allowed to deposit the arrears of rent and cost.

The deposit was accepted by the Court after making an endorsement, "accept without prejudice". Subsequently, on 11th November, 1964, the trial Court passed a decree for ejectment in respect of plots and the buildings in favour of the plaintiff.

A decree wasi granted regarding arrears of rent and for mesne profits.

Both the plaintiff and the defendant preferred appea!S and the Bench of two Judges of the Court of Small Causes by a common judgment disposed of both the appeal on 4th April, 1965. The appellate Court held that it had no jurisdiction to give a decree for ejeetment i~

respect of the two buildings constructed on Plot No. 12 by the defendant. It held that clause N. of the lease whicl:\ permitted forfeiture was in the nature of penalty and the defendant was entitled to be relieved from the liability to deliver possession of the buildings constructed by him upon forfeiture by the plaintiff. It also found that the defendant was entitled to be relieved from the penalty of forfeiture of the lease under Ss. 114 and 114A of the Transfer of Property Act. It rejected the plea of the defendant that he wa~ always ready and willing to pay all arrears of rents and found that< because of repeated defaults the defendant was not entitled for relief from ejectment under

S. 12 (3) (b) of the Bombay Rent Act. The plaintiff filed a revision 'petition against the order of the appellate COIUrt declining to direct possession of the two buildings and the defendant/tenant filed af\ appeal against the order of the appellate Court directing ejectment of the defendant from the two plots of land~ mentioned in the plaint. The High Court disposed of both the revisions by the plaintiff and the appeal by the defendant by a common judgment whereby it allowed the revisio_ns filed by the plaintiff and dismissed the appeal of the defendant and decreed the suit of the plaintiff directing the defendant tq

deliver peaceful possession of the land demised to him and also buildings which have been constructed by the defendant on the demised.

SUPREME COUJ.T REPORTS [1980] 3 s.c.R.

A lands. It also confirmed the decr~ regarding arrears df. rents and mesne profits.

On behalf of the defendant it was submitted that the Court's jurisdiction is limited only to adjudicate. on leased premises under Ille Bombay Rent Act and therefore it had no jurisdiction to try the suit B regarding possession of the structures put upon, the leased lands.

It was pleaded that a relief regarding the superstructures will not be one under the provisions of the Bombay Rent Act. It was contended tbii.t as the suit is for a composite relief namely for the possession of the;

leased land and for the superstructures it is beyond the jurisdiction of the court, and the suit as a whole should have been dismissed. It was C submitted that in any event as clause IV in the lease deed is in th~ nature of penalty providing for the forfeiture of the structure. which did not form part of the lease, the decree for possesion oil the structures is not maintainable. In any event it was submitted that there could ,}; fl no forfeiture of the structures on thei ground that the municipal pxes were not paid and that the term as to payment of arrears of taxes D cannot be considered as a clause in: the lease deed and the defendafil; should be relieved against the penal clause.. Lastly, it was submitted that the Courts below were wrong in not granting relief under section 12(3)(b) of. the BO!llbay Rent Act.

Before considering the several coµtentions raised by the learned counsel for the appellant it will' be useful to refer to the relevant clauses of the lease deed and the relief prayed for in the plaint.

The lease deed dated 14th December, 1948 executed by the plaintiff in favour of the defendant was a lease of two plots of land, plot Nos. J 2 and 13 situated at Sitladevi Temple Road, Mahim for a period af 15 years iili an yearly rent of Rs. 10,200/- payable in equal quarterly instalments of Rs. 2,550/ in advance.

Subsequen, tly standatd rent was fixed by the trial Court at Rs. 435 /- which was raised by the appellate court to Rs. 620 /- per mensem.

The lease permitted the defendant to erect buildings and structures in the two plots of land.

The buildings were erected in only plot no. 12 and not in plot no. 13 which remains unbuilt and vacant.

The defendant agreed to pay and discharge all taxes and outgoings imposed on the above two plots as also to the

bru1dings to be erected by the defendant. The defendant also undertook to deliver possession of the two plots to the plaintiff "free of all buildings, erections and. structures" on the ration of the lease.

Clause IV empowered the lessor to terminate the !easel and prO!vided that.the lessor will be at liberty to re-enter not only upon the two ploti of the lands but also on the structures, standing thereon.

In the plaint it was stated that as thd defendant had failed to pay rents and taxes. and

I f ~

! j

.j\

\ -~

JAMNADAS V. J. JOSEPH (Kai/asam, J.) 1021

committed breach of conditions the plaintiff forfei.ted the lease and A called upon the defendant tq pay arrears of rent and taxes. The sui~

'11'111 based not only on the forfei.ture of the lease bu~ also for posses• 11iou. of the leased plots' under S. 12 of the Boinbay Rents Act. In

palagrapbi 9 of the plaint it is alleged "the plaintifi say that in the event of the defendant contending that he has become a statutory tenant of the said land, after' th~ tenancy had been duly and validly terminated, B the plaintiff would submit that the defendanti had failed and neglected to pay the arrears of standard rent amounting to Rs. 11,472.30 upto 31st August, 1961 and does not observe and perform condition ll(b) of his lease, and so he is not entitled to thei-protet:tion of the Bombay Rent Coutrol Act." ' c In paragraphs 10 and 11 of the Plaint, it is alleged that the provisions of the Bombay Rents Act 4 7 of 194 7 apply to the said land and the Court has jurisdiction to entertain and try the suit. The reliefs asked for by the plaintiff in paragraph 13 (a) is that the defendant may be directed to hand over peaceful possession of the lands to the plaintiff together with the buildings and structures standing thereon.

D Thus it would . be seen that the plaint is based on the terms of the lease deed after forfeiting the lease and for the possession of the leased lands according to the terms of the Bdmbay Rent Act.

The main defence which was raised by the tenant in the Courts below as well as before us is that the suit is not triable under S. 28 E of the Bombay Rents Act and in any event relief regarding possession of the structures would be beyond the scope of the relief contemplated in the Bombay Rent Act.

Section 28 of the Bombay Rent Act runs as follows :-

"28 (1). Notwithstanding anything contained in any law and notwithStanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for the provision, be within its jurisdiction, in Greater Bombay, the Court of Small Causes Bombay.

(a)

(b)

x x

x x

x x x x

x x x x

shall ha~ jurisdiction to enlfftain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this part apply and to decide any application made under this Act and to deal. with any claim or question arising out of this Act or any of its provisions

and subject to the provisions of sub-secJion ( 2) , no other court shall have jurisdiction to entertain any such claim or qul'Stion."

The Section confers jurisdiction on the Court of Small Causes Bombay to .entertain and try any suit or proceedings between a land-' lord and tenant. relating to recovery of rents or possession of any premises to , which any of \the provisions of this part apply.

The jurisdiction thus conferred enables the, Court to try any suit between the landlord and the tenant relating to recovery of possession. of the premises. It is admitted that the premises is the two plots of land only and not the superstructure. The plea of the plaintiff is that the relief. for recovery of possession of the plot which is the subject. matter of the lease, would also include relief relating to the superstructure as being related to relief of recovery of possession of the leased premises namely the plots and land.

The submission on behalf of the plaintiff is that as the jurisdiction of Civil Courts have been specifically excluded, and the matters relating to possession of the leased premises, it would imply that not only relief of the possession of the leased lands but also matters relating to it would be beyond the jurisdiction of other oourts and therefore the plaintiff has no other option than to file the, suit for relief as to the structure being only ancillary and incidental to the relief of possession. of the leased lands. Before we proceed to consider this plea, we might note that Mr. Soli J. Sorabjee, learned rounsel for the plaintiff submitted that though it might be open to him to contend that the reliefs relating to the structures based on the lerms of the contract would also be decisive on an application made under the act as being related to the recovery of the possession of the leased premises, he would content himself with the plea that the relief as to structures is so closely and inextricably related to possession

•f the land that no effective relief of possession of the leased lands wuld be given without giving relief in respect of structures. Relief as to structures also should inevitably follow. If this submissicm is accepted it would be unnecessary for us to consider. the other limb of the arguments on behalf of the appellants that the relief claimed as a result of the forfeiture is not enforceable by a Court administering Bombay Rent Act or thaf the plaintiff cannot enforce terms of forfeiture which did not relate to leased plots or that the defendant would he entitled to relief against forfeiture under Ss. 114 and 114A of the Transfer of Property Act.

All the Courts below have found that the defendant is not entitled to any relief under S. 12 ( 3) (b) of the Act and that so far as the

leased plots are conceme\I, the plaintiff i9 entitled to possession 11*' the Bombay Rent Act.

After fifuig of the suit it is seen that die

defendant asked for time f\lr payment of arrears of rents and the matter A came up before the Court on the 28th June, 5th July and 6th August, 1962 for payment of arrears.

On the last date the appellant's advocate informed the Court that the appellant was not in a position to pay the arrears.

It is only two years later on 18th September, 1964 the defendant obtained Court's permission to deposit balance of arrears ' of Rs. 12,800/- and , deposited the amount under protest by the B plaintiff. The Tiial Court after considering all the facts found that there was intention of default a, nd neglect in payment of rent.

The conduct of the defendant was wilfully not ready and willing to pay the. rent. It again found that the payment of arrears was not made diligently and the defendant had flouted the orders of the Court to deposit the arrears of rent and the discretioncannot be exercised in his favour when he persisted in not paying the taxes for about 12 or 13 years and was constantly in arrears of rent for about 14 months at the time of the notice.

The appellate Court also came to the same conclusion holding that it is not a case where discretion of the Court under S.12

(3 )(b) should be exercised in favour of the tenant. The High Court also confirmed the findings of the Court below that the defendant was llOt entitled to relief under Section 12 ( 3 )(b) of the Act.

On the tacts we are also in agreement with the findings of the three courts below that the persistent default of the defendant on various occasions aDd his clear statement that he was not in a position to pay the arrear•, would exclude any relief under section 12 ( 3 )(b) .

In a recent decision of this Court reported in Ganpat Lad ha v.

Sashikant Vishnu Shinde, (') it has been held that when the tenant

eloes not fulfil the conditions as required under section 12 ( 3 )(b), he eould not claim protection under section 12{3)(b).

This Court ebserved that it is difficult to see how judicial discn; tion exercisable F in favour of the tenant can be found under section 12 (3) (b) even where conditio'ns laid down by it were not satisfied.

This Court overruled the decision of the case of Bombay High Court in Kalidas v.

[Jhavan Bhagwandas•(').

The conditions sepcified in S. 12(3) (b) will haYe to be strictly observed by the tenant if . he wants to ayail himself of the benefits provided under the Section.

On the facts therefore we find that the plaintiff is entitled to a '1ecree for possession of the two plots under the provisions of the Bombay Rent Act.

As plot No. 13 has not been built upon a'nd is vacant there could be no difficulty in confirming the decree for poAsession in favour of the plaintiff regarding plot No. 13.

(I} [1978] 3.' S.C.R. 198.

(2) 60 Bombay L.R. 1359.

11)2.(

SUH.BM!! COURT REPORTS [1980] 3 s.c.Jt.

in Importers and Manufacturers Ltd. v. Pheroze Framroze Tar"- porewala and Ors,(') this Court held that the claim for compensation was merely an incidental claim for possession under the Act. "Section 28 had conferred jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord . and tenant for recovery of rent or possession but also to deal with B any claim or question arising out of this Act or any of its provisions and s. 28 was thus wide enough to cover the question raised as between the plaintiff and ihe sub-lessee". It will be seen that the plea that a suit against a sub-lessee is not within the jurisdiction of the Small

auses Court, was negatived by this Court and it was held that secc

tion was wide enough to cover the questions raised between the palin tiff and the sub-lessee.

In Babula/ Bhuramal and An.r. v. Nandram Shivram and Ors.(') related to sub-lessee of the premises.

The suit was filed for ejectment of the tenant and the sub-tenant in the Court of Small Causes.

The tenant and the sub--tenants later filed a suit before the Bombay City Civil Court for declaration that the lessee was a tenant and was protected from eviction by the provisions of the Bombay Rents Act and that as. B and C were lawful sub-tenants, were also entitled to possession.

This Court agreed with the view taken by the. Higa Court that section 28 of the Act barred the City Civil Court from entertaining the suit filed by the lessees and the sub-lessees as section 28 conferred the right oil the Small causes to entertain a suit between a landlord and a tenant in respect of a claim which arose out of the Act or any of its provisions.

Thus it prohibits a suit from being entertained by the City Civil Court at the instance of the tenant.

In Raizada Topandas and Anr. v. M/s. Gorakhram Gokalchand ( •) it was held that if a suit is framed by a landlord or a tenant and relief asked for is in the nature of a claim which arises out of Act or any of the provisious then only and not otherwise will be covered by s. 28 and as there were no such claim the City Civil Court has jurisdiction to entertain the suit.

The plaint in the case proceeded on the footing that during the periOd of agreement the appellants were mere licensees and after the expiry of the agreement they were trespassers.

As the plaint in terms negatived the relationship of the landlord and tenant, it was held that the Rent Court had no jurisdiction.

This decision cannot be of any help to the appellant.

(!) [1953] S.C.R. 226.

(2) [1959] S.C.R. 367.

(3) [1964j 3 S.C.R. 214.

JAMNADAS v. J. JOSEPH (Kai/asam, J.) 1025

In Sushila Kashi.nath Dhonde and Ors. v. Harilal Govindji Bhogani and Ors.,(') this Court held that it is not necessary that there should be relationship of landlord and tenant in respect of all the matters covered bys. 28(1) of the Act so as.to give jurisdiction to the Court of Small Causes.

It further held that in respect of other matters dealt with snb-section, it is not necessary that the relationship of landlord and tenant shollld exist between the parties before the Court. The Court repelled the contention that a charge created by the deed executed between the parties did not give rise to any claims or questions arising out . of the Bombay Rents Act or its provisions and held that nature of reliefs to be granted to the plaintiff are all daims or questions arising out of the Act and can be dealt with only by the special court constituted under S. 28 of the Act. No doubt, the deed .of charge furnished a cause of action, but its legality, vali- dity and binding nature and other incidental matters connected therewith are all questions arising out of the Act and the plea on behalf of the. appellants that the rights of the plaintiff did not flow from the Act or any of its provisions but from the contract, could not be accepted.

The decisions referred to above will show that that the plaintiff/ landlocd of the land is entitled to claim the relief for possession of his; land and in effect the decree for possession of the land would mean that the land should be delivered to him without the structures.

Apart from the relief under the lease deed, the plaintiff is entitled to wcceed as he has estabished that there was default Of payment under the provisions of the Bombay Rents Act.

The jurisdiction of the Small Causes Court to grant an effective decree for possession of the land cannot be denied.

Equally untenable is the contention _ of the respondent that as the plaintiff has sought two reliefs one

undoc the Bopibay Rent Act and another under the Contract, the entire plaint must be rejected.

As we have already observed so far as the relief of possession of the premises, i.e. the )and is concerned, it is exclusively within the jurisdiction of the Small Causes Court.

In asking for the relief for possession of the land, the plaintiff is eniitled to incidental and consequential reliefs such as for effectively . taking possession of the plot without the structures. The prayer in the plaint asking for possession of the land including the structures would not take the suit out of the competence of the Small Causes Court In this view if is not necessary toi us to go into the quesiion as to whether the terms in the contract regarding the forfeiture can be enforced by the Small Causes Court. It is sufficient for the purpose of this Suit to hold that the plaintiff is entitled to seek for

(I) (1970] 2 S.C.R .. 950.

A possession of the land which is the premises in the suit, and in getting possession of the land he is entitled to ask for possession

of the land without any superstructures. In this connection reference may be made to the nature of the relief which the plaintiff is entitled to.

In Ramchandra Raghunath Shirgaonkar v. Vishnu Bala- ji Hinda/akar, ( 1) it was held that the ordinary rule of law is that B the tenant must give up vacant possession of the land demised at ,,

the end of the term and that if he builds on the laud of the tenancy he builds at. his own risk.

At the end of the term he can take away his buildii)g but if he leaves it there, it becomes the landlord's property.

The Court further held that the tenant who had been in possession of land for a large number of years and built a cootly and substantial house on the land of the tenancy witl1 the knowledge of the landlord, is entitled to some compensation.

In K. Arumugham Naicker and Anr. v. Tiruvalluva Nainar Temple that after the determination of the lease, lessees were required to deliver over possession of the demised premises lo the lessor and the lessees were entitled to remove the structures which they mlght have erected during the continuance of the tenancy.

The lessees, however, failed to remove the structures on the date of the determinatio)l of the tenancy and on the next date tile premises were occupied by oilier lessees, it was held tile lessees could remove the structures on and not after determination Of the tenancy and having failed to remove the same on the determination of the tenancy they lost not only tlieir right to remove the structures after the determination of the tenancy but also all right, title and interest in tliose structures.

In K. Arumugham Naicker and Anr. v. Tiruvalluva Nainar Tmiple by its Trustee,(') it was held that where a court directs by a decree or order vacant possession of land, that decree could be made e!Jective by directing its own officers to remove the super-structures in the property and deliver vacant possession of the properties to the decree-holder. It is unnecessary to have any specific power in that behalf.

The power to remove the superstructures is an incidental, .necessary. and ancillary power to the power to deliver posSCMio!t of

tile property. ' We are satisfied that the Small Causes Court had jurisdicti<m w entertain tile suit of the plaintiff not only for possession of the land which is the premises under the Act but also for otl1er reliefg to make the decree for possession effective.

In this connection the plaintiff is entitled to ask for relief regarding the superstructuru.

This incidental or ancillary relief would not take out the suit d

(I) A.LR. 1920 Born. 87.

(2) A.I.R .. 1941Born.337.

(3) A.l.R. 1954 Mad. 985.

JAMNADAS v. J. JOSEPH (Kailasam, J.) 1027 ' the jurisdiction of the Small Causes Court.

The plea that the A composite relief had been asked for and that the entire plaint ought to be rejected is also unsustainable.

In the result, we agree with the contentions of the plaintiff that in asking for relief as to pooses-- sion of the land, he is entitled to ask for the demolition of the structures and for grant of vacant possession of the plots.

So far as the plot No. 13 is concerned, there is no difficulty.

The plot is B not built upon and is vacant and therefore we have o hesitation in confirming the decree for possession so far as the plot No. 13 is concerned. · I Plot No. 12 has been built upon. There are.about three storeys consisting of about 72 flats, shops with carpet area of 13,000 square ft. and the cost of building with superstructures in 1949 was about Rs. 6,00,000/-. We may in this connection note that from the date of the decree passed by the High Court on 23rd October 1969, the defendant has not paid arrears of rents or the taxeg due on the buildings. He is in law bound to pay the arrears of rent and the municipal charges which he has undertaken.

On a consideration of the facts of the case, we feel that there are no grounds for interfering with the decree passed by the High Court for possession not only of the vacant plot but also of the superstructure and mesne-profits and arrears of rent. The law provides for the tenant to remove the superstructure on the termination of the tenancy. If it is not thus removed the tenant loses all his rights to the superstructure and the landlord becomes entitled to it.

But in a case where !, here is a substantial building, it is only reasonable that the court should explore the possibility of payment of some compensation to the tenant who had put up this structure. But in this connection we are reminded that for several years neither the arrears of rent nor the taxes amounting to several lacs of rupees had been paid by the tenant.

Not only the tenant but several persons who have put up flats at their own costs may press their claim for compensation and it will be difficult to determine as to who are entitled to compensation and the proportion of the compensation to which they will be entitled to. We enquired of the parties at the conclusion of the arguments if it was possible to come to some arrangement regarding the superstructure but to our regret the parties informed us that they could not arrive at

any settlement.

In the circumstances, we have no alternative except to confirm the judgment and decree passed by the High Court. We, therefore, dismiss the appeal, but in the special circumstances of this case we make no order as to costs in this Court.

S.R.

Appeal dismissed.

JAMNADAS DHARAMDAS

J. JOSEPH FERREIRA AND ANR

May 7, 1980

A. C. GUPTA

S. MURTAZA FAZAL ALI

P. S. KAILASAM, JJ.

Control Act, 1947

Section 12(3)

Section 28

section 28

Mahim

1st Decem~

ber 1948

5th March. 1954

28th June, 1955

section 12

s. 11

section 12

11th November, 1964

4th April 1965

section 114

Transfer of Property Act

section 12(3J(b)

Section 28

Bombay Rent Act, 1947

[1953] 3 SCR 266

[1970] 2 SCR 950

section 12

section 12(3 )(b)

[1978] 3 SCR. 198

D. V. Patel

N. N. Keshwani

R. N. Keshwani

I. Sorab

R. Daruwala

P. G. Gokha

J. R. Gagarat

KAILASAM

1st December, 1948

5th March, 1954

1st September, 1950

section 12

1st December, 1961

Section 12(3)

20th June, 1962

6th Augnst, 1962

S. 12(3)(b)

4th April, 1965

Ss. 114 and 114A

Transfer of Property Act

S. 12

Ille Bombay Rent Act

section 12(3)(b)

14th December, 1948

JAMNADAS V. J. JOSEPH

S. 12

31st August, 1961

S. 28

Section 28

Bombay

Soli J. Sorabjee

Court administering Bombay Rent Act

Ss. 114 and 114A

Transfer of Property Act

S. 12

18th September, 1964

Section 12

section 12

section 12

section 12

section 12

Bombay High Court

S. 12(3)

Section 28

s. 28

Bombay City Civil Court

section 28

section 28

s. 28

S. 28

23rd October 1969


N. K. V. BROS (P) LTD.

M. KARUMAI AMMAL AND ORS. ETC.

March 21, 1980

[V. R. KRISHNA IYER AND D. A. DESAI; JJ.]

Mo1or Vehicles Act-Driver of bus acquitted for rash and negligent driving-Civil suit if must also be dismissed.

Indian Penal Code-Section 304A-Requirement of culpable rashness more drastic than negligence sufficient under the law of tort to c1eate liqbility.

The petitioner's bus driven by a driver hit an over-hanging high tension wire resulting in the death of some passengers and loss of limb to several othen. The driver was acquitted on the ground that the tragedy was an act of God. The Accidents Tribunal held that despite the screams of the passengers about the doogerous over-hanging wire ahead tho rash driver sped towards

the spot which resulted in the accident. The High Court affirmed the finding

of the Tribunal that the accident bad taken place due to rashness and negli~ D gence of the driver and consequently the petitioner was vicariously liable to pay compensation to the claimant.

Dismissing the petition,

HELD : I. The plea that the criminal case had ended in acquittal and that therefore the civil suit must follow suit was rightly rejected by the Tribunal and the High Court. [I 02 BJ

2. The requirement of culpable rashness under section 304A l.P.C. is more drastic than negligence sufficient under the law of tort to create liability. [102 E]

1 [The Accident Tribunal must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must P be inferred from the circumstances where it is fairly reasonable. The court should not succumb io niceties and technicalities.] [102. G]

CIVIL

APPELLATE

JURISDICTION Nos .. 937-939 of 1980.

Special Leave Petition

From the Judgment and Order' dated 1-8-1979 of the Madras High Court in A.A.O. Nos. 815-817 of 1977.

T. A. Ramachandran and K. Ramkumar for the Petitioner.

The Order of the Court was delivered by

KRtSllNA IYER, J.-Sri Ramachandran, ably assisted by Sri K.

B Ram Kumar, presented the case of the petitioner for special leave, as persuasively as the facts permit but while we were impressed with the

SUPREME COURT REPORTS [1980] 3 S.C.lt.

A industry and advocacy of counsel, we heartily dismiss this petition.

Why heartily? Because the High Court, if at all, has erred in favour of the petitioner, not against him.

The Facts : A stage carriage belonging to the pet1t1oner was on a trip when, after nightfall, the bus hit an over-hanging high tension wire resulting in 26 casualties of which 8 proved instantaneously fatal. A criminal case ensued but the accused-driver was acquitted on the score that the tragedy that happened was an act of God! The Accidents Claims Tribunal, which tried the claims for compensation under the Motor Vehicles Act, came to the conclusion, affirmed by the High Court, that, despite the screams of the passengers about the dangerous over-hanging wire ahead, the rash driver sped towards the lethal spJt. Some lost their lives instantly; several lost their limbs likewise. The High Court, after examining the materials, concluded :

"We therefore sustain the finding of the Tribunal that the accident had taken place due to the rashness and negligence of R.W. 1 (driver) and consequently the appellant is vicariously liable to pay compensation to the claimant."

The plea that the criminal case had ended in acquittal and that, therefore, the civil sait must follow suit, was rejected and rightly. The requirement of culpable rashness under section 304A I.P.C. is more "drastic than negligence sufficient under the law of tort to create liability. The quantum of compensation was moderately fixed and although there was, perhaps a case for enhancement, the High Court b dismissed the cross-claim; also.

Being questions of fact, we are obvi- ously unwilling to re-open the holdings on culpability and compensation.

Road accidents are one of the top killers in our country, specially w"iien truck and bus drivers operate .nocturnally. This proverbial recklessness often pmuades the courts, as has been observed by us 'Car lier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some :doubt here or some obscurity there. Save in plain cases, culpability [must

be inferred fr0m the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes.

We aro e:nph1sising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic

N. K. v. BROS. v. M. K. AMMAL (Krishna Iyer,!.) 103

impact of culpable driving of public transport must bring' owner and driver to their responsibility to their 'neighbour'. Indeed, the State

must seriously consider no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for state relief against accidental disablement of citizens. There is no justification for niggardliness in com pensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient num)!r of tribanals ani the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States 'Te

unjustly indifferent in this regard.

We have been taken through a few intricate legal submissions by counsel bat We d!line to interfere ui!r Article 136 of the Consti

tution especially where human misery is pitted against operational D negligence.

P.B.R.

Petition . dismissed.

N. K. V. BROS (P) LTD

M. KARUMAI AMMAL AND ORS. ETC

March 21, 1980

V. R. KRISHNA IYER

D. A. DESAI

Indian Penal Code

Section 304A

section 304A

Madras High Court

T. A. Ramachandran

K. Ramkumar

KRtSllNA IYER

Ramachandran

K.

B Ram Kumar

Accidents Claims Tribunal

Motor Vehicles Act

section 304A

I.P.C

Article 41

Article 136


SHALIMAR ROPE, WORKS LTD. v.

ABDUL HUSSAIN H. M. HASAN BHAI RASSIWALA AND ORS.

May 7, 1980

[N. L. UNTWALIA, P. N. SHINGHAL AND V. D. TULZAPURKAR, JJ.J

Surnmons, servic~ of-Suits by of against Corporation-Service of . summons how to be effer:ted to be valid.-Code of Civil Procedi1re Code, Order 29 Rule 2, Order 5 Rule 17.

The respondent filed a suit at Indore on 24-2-1975against the appellant claiming damages to the tune of Rs. 26!000/- on account of the. alleged nondelivery of certain goods.

Summons in the suit was sent to the registered office of the company in Calcutta and was served on Sr( Nav!akha on 17-3-1975 asking the company to appear at Indore on 25-3-1975. Since the company did not appear in the Court on that date, eventually, t~ exparte decree was passed

on 22-4-1975. The appellant company came to know about the ex-parte decree for the first time when its constituted attorney Sri Jhunjhunwala received a notice frorn the respondent by registered post demanding the. decretal dues. 'fhereupon 'Sri N. S. Pareek, the Works Secretary of the company who is in-charge of the legal matters \Vas sent to Indore toi ascertain as to how the ex-parte decree can1e to be passed. Paree-k learnt that the summons was purported to have been served on Navalakha on 17-3-75.

Navalakha .did not bring the fact of the receipt of summons by him to the knowledge of any responsible officer of the company. He was neither secretary nor a Director nor any other principal officer of the company authorised to receive summorls in the suit. The company remained in dark and. learnt for the lint time on 29-7-75 about the passing

of the ex-parte decree. The Trial Court allowed the application" but the High Cou1t in revision under S. 115 of C.P.C. restored the ex-parte order. Hence the appea-1 by special ]eave.

Allowing the appeal, the Court

HELD : I. Rule 2 of Order XXIX of C.P.C. is not an exhaustive provision providing for all modes of service on the Company in the sense . as to what is meant by service of summons on the Secretary, Director or Principal Officer.

Service on managing agents who are a corporation is valid under clause (a)

of Rule 2 of Order XXIX C.P.C., since a Principal Officer in clause (a) of Rule 2 has been held to include managing agents and it can under this rule, be on a juristic r:erson.

[1031 D1..E]

Jute and Guurzy Brokers Ltd.i & .A.nr. v. Union of India and Ors., [1961] 3 SCR p. 20; followed.

2. Sending a summon to a corporatiori by post addressed to it at its registered office may be a good mode of service either by itself, or preferably, by Way of an addition.n l n1ode of service. But leaving the summons at the registered office of the corporation if it is literally interpreted to say that tho summons can be left anywhere nncared for in the registered office of the company. then it will lead to anomalous and absurd results. It has to be read in the background cl' provision contained in Onler 5 Rule 17 of tlie Code. In other

~- -

I i \

SHALIMAR ROPE WO, RKS v. ABDUL HUSSAIN (Untwalia, !.) . 1029

...ms if the serving peon or bailiff is not able to serve the summon.. on the A or any Director or any other Principal Officer of the Corporation beCanse either be refnses to sign the sullllIIOOS or is not to be found by the llU\'ing person even after due diligence then he can leave the snmmons at the registered office of the company and make a report to that effect. Jn the instant

cue nothing of the klrul was done. It was also not the case llf the respondent ill i13 rejoindec filed in the Miscellaneons case that the service of the summons was effected in accordance with the fun part of claU!e (b) R.nle 2 of Order B 29 of the Code.

[!()32 B-D]

3. Nowhere in_ the rejoinder a st.and was taken by the respondents that the summons was duly served on the company because it was left at the registered office of the company.

The company had no knowledge of the exparte decree, evell otherwise, before 29-7-75. Hence the application under O.JX Rule 13 of C.P.C. has been correctly allowed.

[1033 C-DJ C

°CML APPELLATE JURISDICTION: Civil Appeal No. 366 of 1979.

Appeal by Special Leave from the Judgment and • Order dated 28-2-1978 of the Madhya Pradesh High Court (Indore Bench) in Civil Revision No. 93 of 1976.

Shanker Ghosh and S. K. Gambhir for the Appellant.

R. K. Garg and A. K. Sanghi for Respondent No. 1.

The Judgment of the Court was delivered by

UNTWALIA, J. This appeal by special leave is from the judgmenf

of the Madhya Pradesh High Court reversing the decision of the Second E Additional District Judge, Indore in MisceHaneous Judicial Case No. 23 of 1975. The appellant company had filed that case under Order 9 Rule 13 of the Code of Civil Prooedure, hereinafter called the Code, for setting aside an ex-parte decree for Rs. 28,479 /- passed in favour al. the respondent firm on 22-4-197 5 against the appellant. The learned Additional District Judge held that summons in the suit was not duly F served on the company and it came to know about the decree on 29-7-1975. Hence he set aside the ex-parte decree. The respondent

firm filed a revision in the High Court under section _115 of the Code.

The High Court allowed the revision, set aside the judgment of the Trial Court and upheld the passing of the ex-parte decree. Hence this appeal.

The respondent filed the suit at Indore on 24-2-1975 against the appellant claiming damages to the tune of Rs. 26,00()/- on account of the alleged non-delivery of certain goods. Summons in the suit was !ent to the registered office of the company in Calcutta and is said to

have been served on one Shri Navlakha on 17-3-1975 asking the H oompany to appear at Indore on 25-3-1975 for settlement of issues.

Since the company did ndt appear in the Court on that date, eventually,

,.i;!l

the ex-parte decree was pass~ on 22-4-1975. According to the case of the appellant the company came to know about the ex-parte decree for the first time whn its constituted attorney Sjlri S. K. Jhunjhunwllla received a notice from the respondent by registered post demanding the decretal dues. Thereupon Shri N. S. Pareek, the Works Secretary of the company who is in-charge of the legal matters was sent to Indoce

to ascertain as to how the ex-parte decree came to be passed. Pareclc learnt that the summons purported to have been served on Navlakha on 17-3-1975. Navlakha was a mere Office Assistant in the Sales Department of the company. He was neither a Secretary nor a Director nor any other Principal Officer of the company authorised to receive summons in the suit. He did not bring the fact of the receipt of summOfll by him to the knowledge of any responsible officer of the company. Tbs company remained in dark and, as stated above, learnt for the first time on 29-7-1975 .about the passing of the ex-parte decree.

N. S. Pareek was the only witness examined on behalf of the appellant in the . Miscellaneous case tried by the learned Additional District D Judge. No witness was examined on behalf of the respondent. The 1 Trial Court held :-

"I hold that handing over of summons to N avlakha who was oliy an Office Assistant working in the company and who was not an officer duly authorised td accept summons

dn behalf of the company did not amount to valid service of summons on the applicant company."

It also accepted the ppellant's case about the knowledge of the ex-parte decree for the first time on 29-7-1975 and hence the application filed in about a week's time thereafter was held to be within time.

F The High Court in its impugned judgment has held :-

"It is not ht dispute that the person who received the

summons in the office of the Company is not a person who is entitled to be served on behalf of the company in accordance with sub-clause (a) of Rule 2 of Order 29 of

C.P.C."

The High Court, bowever, took the view that since Navlakha was an employee of the company sitting in its registered office in Calcutta the summons will be deemed to have been duly served on the company within the meaning of the first part of clause (b) of Order 29, Rule 2 of the Code. In the opinion of the High Court since the learned Additio- B nal District Judge did not apply his mind to the provision of law contained in clause (b), it committed a material irregularity and illegality in exercise of its jurisdjction in setting aside the ex-parte decree.

I f

' lJHALIMAl\ ROPE WORKS v. ABDUL HUSSAIN (Untwalia, !.) 1031

In our opinion the High Court was clearly wrong in upsetting the A judgment of the Trial Court. There was no error in that. judgment much less any error of jurisdiction entitling the High Court to interfere with it.

Order 29 of the Code is headed "Suits by or against Corporations".

Tbore are only three Rules in it. We are concerned with Rule 2 which B reads as follows :-

"Subject to any statutory provision of process, where the suit is against a corporation, the summons may be served- ' ·(a) on the secretary, or on any director, or other principal officer of the corporation. or

(b) by leaving it.or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business. n

Rule 2 is not an exhaustive provision providing for all modes of service on the company in the sense as to wat is meant by service of summons on the Secretary, Director or Principal Officer in lute and Gunny Brokers Ltd. and another v. The Union of India and others(") it was held

that the words "Principal Officer" in clause (a) of Rule 2 would include managing agents and it can, under this rule, be on a juristic person.

Accordingly se'i"ice on managing agents who are a corporation is valid under clause (a) .

The meaning of clause (b) has got to be understood in the bak ground of the provisions of the Code iu Order 5 which is meant for issue and service of summons on natural persons. Sending a summons by post to the registered office of the company, unless the contrary is shown, will be presumed to be service on the company itself. But the first part <>f clause (b) has got to be understood with reference to the other provisions of the Code. In Rule 17 of Order 5 it has been provided :-

"Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his beha~. nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door ot some otbei; conspicuous part of the house in which the defendant ordinarily resides or carries.on business or personally works for gain,

(I) [1961] 3 S.C.R. 820.

E .

and shall then return the original to the Court from wbich it was issued, with a report endorsed . thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was aflixed."

Sending summons to a corporation by post addressed to it at its registered office may be a good mode ?f service either by itself, or preferably, by way of an additional mode of service. But leaving the summons at the registered office of the corporation if it is literally interpreted to say that the summons can be left anywhere uncared for in. the registered office of the company, then it will lead to anomalous and absurd results. It has to be read in the background of the provision C9ntained in Order 5 Rule 17 of the Code. In other words, if the serving peon or bailiff is not able to serve the summons on the Secretary or any Director or any other Principal Officer of the Corporation because either he refuses to sign the summons or is not to be found by the serving person even after due diligence then he can leave the summons at the registered office of the company and make a report to that effect In the instant case nothing of the kind was done. It was not the case of the respondent in its rejoinder filed in the Miscellaneous case that the service of the summons as effected in accordance with the first part of clause

(b) of Rule 2 of Order 29 of the Code. Annexure A to the counter affidavit filed by the respondent is the petition filed by the appellant under Order 9 Rule 13 of the Code. In paragraph 9 of the said petition it was stated :-

"Inspection of re.cord of this Ron'ble Court relating to the service of the summons reveals that the bailiff of the Small Cause Court at Calcutta seems to have delivered a copy of the summons to a gentleman who is described as an officeassfutant, on 17-3-1975 at about 12.40 P.M.

No officeassistant of the defendant No. 1 Company is empowered or authorised to receive summons. The original summons which has been returned by the bailiff to this Hon'ble Court, has been signed by one Shri Nawlakha. Shri Nawlakha was concerned merely with sales and had nothing to do with legal matters generally or with receiving summons in particular. Service of the summons on Shri Na wlakha cannot be regarded as due service on the defendant No. I for the purpose of Order 9 Rule 13 C.p.C."

The rejoinder of the respondent is Annexure B to the colinter affidavit.

Para 9 of the rejoinder which is in reply to para 9 of the petition reads as follows :- \

' • fl\ \•·

SHALIMA!t ROPE WORKS V. ABDUL HUSSAIN (U!J.IW(l/ia, J.) 1033

"In reply to para 9 i! is stated that the summons was duly served as stated in this para. But it is denied that Shri Nawlakha was concerned merely with sales and has nothing to do with legal matters, generally or with r11eeiving summons in particular.

It is denied that service on Shri Nawlakha cannot be regarded as due service on thei Com-•

pany Defendant No. 1 for the purpose of Order 9 Rule 13

C.P.C.

Shri Nawlakha was a responsible officer who could have intimated the receipt of the summons to his so called bosses. Without prejudice it is submitted that the Madhya Pradesh mendment in Order 9 Rule 13 C.P.C. may kindly be persued."

No where in the rejoinder a stand was taken that the summons was duly served on the. company because it was left at tlle registered office of the company.

Refernce to the Madhya Pradesh amendment of Order 9 Rule 13 is immaterial as the Trial Court has pointed out that the company had no knowledge of the ex-parte decree, even otherwise, before 29-7-1975. No contrary finding has been recorded by the High Court.

We, therefore, hold that the judgment by the Trial Court setting aside the decree was correct. In a:ny event no error of jurisdiction was committed by it.

The High Court weht wrong in interfering with

it. We accordingly allow the appeal, set aside the judgment of the . E High Court and restore that of the Trial Court. The suit shall now pred to disposal in accordance with the law.

We may, however, make it clear that the api>ellant under the orders of the Court had furnished bank guarantee for the decretal ampunt. 11 has agreed to continue the same till the disposal of the suit. We shall make no order as to costs.

Jl'

'S.R.

7-610SCl/80

Appeal allowed.

SHALIMAR ROPE, WORKS LTD

N. L. UNTWALIA

V. D. TULZAPURKAR, JJ

Order 29 Rule 2

Order 5 Rule 17

Calcutta

Indore

Jhunjhunwala

N. S. Pareek

Navalakha

S. 115

C.P.C

C.P.C

C.P.C

C.P.C

Shanker Ghosh

S. K. Gambhir

R. K. Garg

A. K. Sanghi

UNTWALIA

Order 9 Rule 13

Navlakha

S. K. Jhunjhunwllla

N. S. Pareek

N avlakha

C.P.C

Order 29, Rule 2

[1961] 3 S.C.R. 820

Order 5 Rule 17

Order 9 Rule 13

Small Cause Court at Calcutta

Nawlakha

Na wlakha

Order 9 Rule 13

Order 9 Rule 13

C.P.C

Order 9 Rule 13

C.P.C

Order 9 Rule 13