6 S.C.R.

SUPREME COURT REPORTS 1015

not like to go through the entire sale proceedings overagain.

In one contingency this proviso also works for the benefit of the judgment-debtor, for he will be relieved of part of his indebtedness.

But anyhow this does not show that the main provision is not intended for the benefit of the judgment-debtor.

We are, therefore, satisfied, on a true construction of s. 35 of the Act, that it is intended only foi: the be.nefit of the judgment-debtor and, therefore, he can waive the right conferred on him under s. 35 of the Act.

If that be the legal position, 0. XX!, r. 90 of the Code of Civil Procedure is immediately attracted. The concurrent finding of the courts is that by reason of the non-observance of the provisions of s. 35 of the Act no substantial injury was caused to the judgme.nt-debtor. Further, though notice was given to the judgment-debtor, in one case he did not file objections at all and in the other case, though the judgment-debtor filed objections, he did not attend at the drawing up of. the prodamation. The sales are, therefore, not liable to be set aside under the terms of the said provision.

In the result the orders of the High Court are set aside and those of the Additional Subordinate Judge are restored.

The appellants will get their costs throughout from the 1st respondent. There will be one set of hearing fee.

Appeals allowed.

N. VAJRAPANI NAIDU AND ANOTHER

THE NEW THEATRE CARNATIC TALKIES LTD.,

COIMBATORE

(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J. c.

SHAH, N. RAJAGOPALA AYYANGAR AND S. M. S!KRI JJ.)

Afadras City Tena111.~· PriJtection Act, 1922 (Act 3 o/ 1922),.ss. 9, 12-··

uasr of land for purpo•• of •nacting buildlngl-lf l•as• not ,....,.

ed after twenty years lessor entitled to vacant possts&ion . of land after demolishing building-A.ct permitting tenant to either get

Dhittndranath

Gorai v.

S11dhir ChaJulra

Gho•lt

Subba Rao/.

Morch 4.

JllH

N. J' aiNlfOnl

N•illN

N•w Th1alr1 Carnatic Talkie1

CQRIPfRSalion jar building or purchase Ja.nd at price fixed by courtl'rovision whether violates landlord's jundamenral righ1s--('011s11rution of India, Arts. 19(l)(fj, 31.

Tilt appellant and his mother (the lessors) 11ranteJ a lease of an open silC m Ule town of co1mbatore to Abirama Chettiar under a re&istered 'deed dated Se9tember 19.1934.

The ao1..ual rent stipulated under the lease was Ks. 1u, u anu the penuU ot tne 1ease was .lu years. 1ne term under the lease was that the land was to be utilised for constructi•e bwldmgs thereon for .. purposes of cinema, drama etc." It was furthct agreed. between the par\lc:s that iu the encl oi the term the lessee would demolish the buildings which be bad, constructed and deliver

vacant posseSSJon ot the site to the Lessor.

Abirama Cbettiar constructe'd a theatre on the site, and assigned his rights to the respondent-company. ln an action against the company for a decree in ejectment and for mesne profits, the Trial Court awarded to the 1cS£Ors iii. d."'rce for poSSC1SJ.on and UlCSne profits. Against uie decree lhe comp411Y-rospondent preferred an appeal to the Distncl Court wtuch was transterrod for trial to the High Court. During the , r pend.ency of this appeai., the ::, tale of Madras extended the Madras City Tenants' Protection Act, 3 of 1922, as amendea by Madras Act 19 of 1955 to the Municipal Town of Coimbatore. The company then applied under •. 9 of the Act and on thil appbcation the High Court dlrected that the lessors do sell to the company the site in aisputo under s. 9 of the Madras City Tenants Protection Act, 1922, agamsl paymont ol the lull marlr.et value of the i&lld on the date of the order.

Tbc 111der was coolirmed in an appeal under tho Letters i'atenL

Held: Per Gajendragadkar, C.J., Shah and Sikri, JJ. section 12 bas been enacted to protOct the tenants against any contractual engagements which may ha.ve been made expressly or by implication to deprive them selves wholly or parually of the protection intended to be conferr"'1 by the Statute. And the only class of cases in which the protection becomei ineffective is where the tenant bas made a stipulation in writing registered as to the erecUon of buildings, erected after the date of the contract of lease. The stipulations not protected in s. 12 are only those in writing rogistered and relate to erection of buildiU&s. such as restrictions about the size and nature of the building consrructed, the building materials to be used therein and tlle purpose for which the building is to be utilized.

(ii) Section 9( I) of the Act was manifestly in the interest of the general public to electuate the mutual understanding between the landlords and the tenants as to the duration of the tenancies, and to conserve building materials by maintaining existing building'i for rurposes for which the leases were granted. Restriction imposed upon the ri£)it of the landlord to obtain poos ... ion of the premises acmiscd accordin1

to the lcrms of the lease would, therefore not be regarded as imposing

llD unreasonable restriction in tho exeroioe of Ibo riibt coaferred upon

N. J'a1rai•an1

Naidu v.

the landlord by Art. 19(1) of the Constitution, because the restriction

WOUIU Ot: n:garot:ll as on..: Ul [fit! Ullt:ICSLS U1 lllC , l4t:!H;:fi.1i puouc.

Whats. 9 OOt:!J 1s nut so mu..:h to tit!!Jf!Vt: the 1anoton1 ot h1s property or 10 acquire hl.s nghts to it as to give effect to the real agreemc:nt betwi;:en hun aud his tenant which induced the tenants to constru~; t !us buUU1ng

on UJ.e p1ot u:t out lO hun. lt tne !aw lS not tnvaJ1J as ottenilillg Au.

J.l 1) llJ 01 Ule Luns~Hul!Oil, 110 1uuepc:uuc:ut 1nrnngcn1ent 01 Art. 31 ( l J ot the Constituuon may be set up.

New Theatre Carnatic Talkies

i'er Wanchoa and Ayyangar, JJ (dissenting) (I) The preamble of the Act wowd indicate that tbe Act would not apply to allord protei.; l.lon r in a caso wnere oy an cxvress Lr.>fnl In a rt:g1su; reu least: ueeu a tenant agret:J 10 surrender the slte on wllich he had erected a owJ.umg, where he specJJiaHy contracted that he would demoJ.Jsh the buao1ng anll oeuvta

\4;,; anl p0s::.t!S:,1on or uie s1te on lht• term1natlon of his tenancy. 11 tile sco.ix ot the proviso to s. l!i! had to be construed 1n the;: light ot the preamote, u is obvious that the tenant who had entered into a couttact

w11n a supulat1un of the sort as stated above could not be sa1U to have cun::.tructell the bwldJugs on another's lan'd "in th~ hope tlld.t he woutu .. nut ae evicted so long as he pays rent for the land". lhe Hlgh Court erreu 1n mterpretung the proviso to s. 12 of the Act.

(ii) These words "as to the erection of buildings., mean a stipulation

wh1a uears on or is 10 re.1auon to the erection ui bu.1h.hn.:~. ,:, ucn a <:Uns1rucuon would reconc1le the proviso with the prcan10Jc: w.tucn ::.e1s

out tne ObJCCt soul.ht to be acb..ieved by the Act. lt the lease deed contains no sUpulauon whatsoever 1n regard to Lhe e1echon of uw1d1ng::., as wa-s the case with the large number of leases in the city ot Aiauras wb.1ch were entered into prior to the enactment ot lhe Act 10 LY22., the tenant wb.o erected the bu1ldlng exconc:ess1s wHhuut contravening any

1 • und.ertabng on his part, obtains protection under the Act. '1 he test wouJ.d therefore be "did the panics advert to and have in m1nd tbe conungency ot lbe tenant erecting buildings on the Jeased. land"'/ If they had and had included in a solemn registered instrument a provision wh1ch would bear upon the relative rights of the parties in the event of the n:l:t1on ot buJid1ngs on the site, the stipulation would have etlci..:t no1w1th.'!land1ng the Act; for in such an event the tenant would not have con::.tru..:ld buildings on the land in the hope that he would not be UJ..Stu1 oed from possession so long as be p8.ld the rent agreed upon.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 264 of 1962.

Appeal from the judgment and order dated April 24, 1959 of the Madras High Court in L.P.A. No. 75 of 1958.

A. V. Viswanatha Sastri and R. Ganapathy Iyer, for the appellants.

M. C. Setalvad, M.A. Sattar Sayeed and R. Thiagarajan, for the respondent.

N. Vajrapanl

Naidu v.

New Theatre Carnatic T alkie.s

Shah J.

March 4, 1964.

The Judgment of GAJENDRAGADKAR C.J., SHAH and SIKRI JJ. was delivered by Shah J.

Tiie dissenting opinion of WANCHOO and AYYANGAR JJ. was delivered by AYYANGAR J.

SHAH J.-The appellant Vajrapani Naidu and his mother Bangarammal-hereinafter collectively called 'the lessors'- granted a lease of an open site in the town of Coimbatore to Abirama Chettiar under a registered deed dated September 19, 1934, for 20 years at an annual rental of Rs. 1,080/- ' for putting up a building suitable for use as a theatre.

Abirama Chettiar constructed a theatre on the site, and assigned his rights to the New Theatre Carnatic Talkies Ltd., Coimbatore-hereinafter called 'the Company'. The Company attorned to the lessors and was recognised as tenant under the lease dated September 19, 1934. On March 9, ;. 1954 the lessors served a notice calling upon the Company to vacate and surrender vacant possession of the site, and the Company having failed to comply with the requisition, the lessors commenced an action against the Company for a decree in ejectment and for mesne profits at the rate of Rs. 1,000/- per mensem from September 19, 1954. The Subordinate Judge at Coimbatore awarded to the lessors a decree for possession and mesne profits at the rate of Rs. 350/- per mensem and costs of the suit. Against the .~ decree the Company preferred an appeal to the District Court at Coimbatore which was transferred for trial to the High Court at Madras.

During the pendency of this appeal by G.O. No. 608 dated February 10, 1958, the State of Madras extended the adras City Tenants' Protection Act 3 of 1922, as amended by Madras Act 19 of 1955, to the Municipal town of Coimbatore. The Company then applied .... under s. 9 of the Act for an order directing the lessors to convey the site demised to the Company for a price to be fixed by the Court.

Panchapakesa Iyer, J., directed that the lessors do sell to the Company the site in dispute under s. 9 of the Madras City Tenants' Protection Act, 1922, against payment of the full market value of the land on the date of the order, and further directed that the trial -,., Court do appoint a Commissioner to fix the value of the site based on the market value prevalent on July 28, 1958.

An appeal under cl. 15 of the Letters Patent of the High Court against the order of Panchapakesa Iyer, J., was dism_issed. With certificate granted by the High Court of Madras, this appeal is preferred by the lessors.

Two questions fall to be determined in this appeal .:

( 1) Whether the Company is entitled under s. 9 of the Madras City Tenants' Protection Act, 1922, notwithstanding the terms of the lease, to an order calling upon the lessors to sell the land demised under the deed dated September 19, 1934; and

( 2) Whether the terms of s. 9 of the Act infringe the fundamental right under Arts. 19(1 )(f) and 31 ( 1 ) of the Constitution, of the lessors, and s. 9 is on that account invalid.

It is necessary in the first instance to notice the material terms of the lease.

The land demised under the lease was a vacant site situate in the municipal town of Coimbatore.

The annual rent stipulated was Rs. 1,080/- and the period of the lease was 20 years from the date of delivery of possession of the site.

The land was to be utilised for constructing buildings thereon for "purposes of Cinema, drama, etc.". After the expiry of the term of 20 years stipulated under the deed the Jessee had an option of renewal for another period of 20 years on fresh terms and conditions.

The deed provided that "if after the termination of the stipulated period" • • • the lessees "fail to pay the arrears of rent that will fall due till that date and hand over ipossession of the site" to the lessors "after making it clear by dismantling the constructions therein and by demolishing the walls etc." the lessors "shall, besides realizing the arrears of rent due to them according to law, have the right to take possession through Court of the site in which the aforesaid buildings are put up after dismantling the constructions and demolishing the buildings therein''.

The other covenants of the lease are not material.

N Vajrapan1

Naidu

New Theatre Carnatic Talkies

Shah J.

It aiJpears that before 1922, in many cases on lands in the town of Madras belonging to others constructions had

N. Vafrapani Naidu v.

New Theatre c:arnuti<: Taikies

Shah J.

been put up by tenants obtained under periodic leases "in the hope that they would not be evicted so long as they paid falf rent". But on account of the inflationary pressure m the wake of the First Wond War, there was a steep rise in land values and rents, and many tenants who had constructed buildings on lands obtained on leases were sought to be evicted by the landlords. To prevent loss to the tenants consequent upon the enforcement of the strict provisions of the Transfer of Property Act, the Legislature enacted the Madras City Tenants' Protection Act 3 of 1922.

Under the Act every tenant is on ejectment entitled to be paid as compensatJon the value of any building which may have been erected by him or by his predecessors-in-interest and for which compensation has not already been paid to him. Jn a suit for ejectment against a tenant in which the landlord succeeds, the Court has to ascertain the amount of compensation which is to be the value as on the date of the order of the buildings constructed, trees planted and other improvements made by the tenant and the decree in the suit must declare the amount so found due and direct that, on payment by the landlord into Court, within three months from the date of the decree, of the amount so found due, the tenant has to put the landlord into possession of the land and the building. By s. 9 it is provided that any tenant entiticd to compensation and against whom a suit in ejectment has been instituted may within the time prescribed apply to the Court for an order that the landlord shall sell the whole or part of the land for a price to be fixed by the Court.

The price under the Act as originally

nacted was to be the market value of the land on the date of the order, but by an amendment made in 1926 it has to be the lowest market value prevalent within seven years preceding the date of the order.

On the price being fixed, the tenant has the option wichin a period not being less than three months and not more than three years from the date of the order to pay into Court or otherwise the price either the whole or in instalments with or without interest as directed, and when the payment is made the Court has to pass the final order directing conveyance of the land by the landlord to the tenant, and thereupon the suit or proceeding is to stand dismissed, and any decree or order in

... _

ejectment that may have been passed therein but which has not been executed is to stand vacated. By s. 12 it is provided:

"Nothing in any contract made by a tenant shall take away or limit his rights under this Act. provided that nothing herein contained ; hall affect any stipulations made by the tenant in writing registered as to the erection of buildings, in so far as they relate to buildings erected after the date of the contract."

The Act as originally enacted extended only to lands in the City of Madras. let out before the commencement of the Act for construction of buildings for non-residential as well as residential use.

By Madras Act 19 of 1955 power was conferred upon the State Government to extend Act 3 of 1922 by notification to tenancies of land created before the date on which the Act was extended. to any other municinal towns and any specified village within five miles of the Citv of Madras or such municipal town with effect from such date as may be specified in the notification. Exercising this µower. the Government of Madras issued a notification on February I 0. 1 958. extending the provisions of the Act to the municipal town of Coimbatore.

The scheme of the Act as extended by notification issued under Act 19 of 1955 is that when under a tenancy of open land within the municipal town created before the date with effect from which the Act is extended, a building has been constructed by the tenant. and he is sued in ejectment by the landlord. he has the right on eiectment to be pa; d as compensation the value as at the date of the llrder of ejectment, of the building constructed and trees planted by him, and he has in the alternative the right to claim an order from the Court that the land belonging to the lessor shall be sold to him at the price fixed by the Court according to the terms of the statute.

By s. 12 it is provided that the rights conferred by the Act shall not be taken away or restricted by any contract made between the landlord and the tenant provided. however. the stipulations made bv the tenant in writing registered as to the erection of buildings,

/\' Va1tr1r..ani

Naidu

New Theatre Carnatic Talkies

Shah J.

N. V a1rapani Naidu v.

New ThetJtre Carnatic Talkies

Shah J.

in so far as they relate to buildings erected after the date of the contract of lease, are exempt from this restriction.

The lease granted by the lessors in this case was before the date on which the Act was extended to the Coimbatore municipal town and it is common ground that the buildings were constructed after the date of the contract of lease.

Ex facie, the Company as lessee had, when an order for ejectment was made, an option to receive compensation for the value of the structure, or to claim that the lessors shall sell to it the land demised.

But the lessors contend that because of the stipulations in the deed of lease (which is registered under the law in force for registration of assurances) relating to the obligation of the tenant on the expiry of . the lease to deliver vacant possession of the land after dismantling the constructions therein, the Company has . by the terms of s. 12 disentitled itself to 1he benefit of s. 9 of . the Act. It is submitted that the stipulation relating to delivery of vacant possession of the site on the expiry of the period of the lease after removing the buildings is a stipulation "as to the erection of buildings" within the meaning of s. 12, and therefore the restriction on the liberty of contract between landlord and tenant ' imposed by the opening clause of s. 12 is removed, and the Company is bound by the terms of the lease and is not entitled to claim the benefit of s. 9 of the Act. We are, for reasons presently to be set out, unable to uphold that contention.

Section 12 of the Act consists of two parts : by the first part it enacts that the rights conferred upon the tenant under the Act may not be taken away' or limited by any contract made by a tenant.

Such rights would, amongst others, include the right to claim compensation under ss. 3 and 4 . and the right to purchase the land from the lessor by order of the Court under s. 9.

By the second part of s. 12. the protection granted by the first part does not avail the tenant in certain conditions. If there be a stipulation "as to the erection of buildings" made by the tenant in writing registered, in so far as it relates to buildings erected after the date of the contract, the protection conferred by the first part of s. 12 shall not apply.

A covenant in a lease which is duly registered that the tenant shall on expiry of

the lease remove the building constructed by him and deliver vacant possession, is undoubtedly a stipulation relating to ).. the building, but it is not a stipulation as to "the erection of building".

Section 12 has manifestly been enacted to effectuate the object of the Act which is set out in the preamble-viz. "to give protection to tenants who . . . . have constructed buildings on others' lands in the hope that they would not be evicted so long as they pay a fair rent for the land". The Legislature has sought thereby to protect " the tenants against any contractual engagements which may have been made expressly or by implication to deprive themselves wholly or partially of the protection intended to be conferred by the statute.

And the only class of cases in which the protection becomes ineffective is where the tenant has made a stulation in writing registered as to the erection of buildings, erected after the date of the contract of lease.

~ The restriction is therefore made only in respect of a limited class ot cases which expressly attract fhe description of the stipulations as to the erection of buildings.

Having regard to the object of the Act, and the language used by the Legislature, the exception must be strictly construed, and a stipulation as to the erection of buildings would not, according to the. ordinary meaning of the words used, encompass a stipulation to vacate and deliver possession of the lanij en the expiry of the lease without claiming to

. f enforce the statutory rights conferred upon the tenant by s. 9.

The stipulations not protected in s. 12 are only those in writing registered and relate to erection of buildings such as restrictions about the size and nature of the building constructed. the building materials to be used therein and the purpose for which the building is to be utilized. It is true that the operative part of s. 12 protects the tenant • against the cteprivation or limitation of his rights under the Act and the rights conferred by the Act do not directly relate to covenants relating to erection of buildings. But on that account it is not possible to give a wider meaning to the expression "as to the erection of buildings" that the stipulation as to the erection of buildings would include stipulations to remove buildings on the determination of the lease. It ,.- cannot be said that the literal meaning of the expression is likely to render the exception ineffective, for stipulations

19M

N. J'a}rapani

Naidu v.

New Theatre Carnatic Talkies

Shah /.

1V. l' a1.apani

Naidu v.

New Theatre Cnrnatic Talkies

Shah J.

concerning erection of buildings in registered leases, or contracts subsequent to the leases, providing for forfeiture on fai.ure to comply with the terms of the lease relating to ~

the erection of buildings may undoubtedly involve limitations or deprivation of the rights of the tenant under the Act and to that extent the protection conferred by s. 12 in favour of the landlord may be lost.

The construction for which the appellant contends assigns no meaning to the words "as to the erection of buildings" and makes them superfluous, besides it materially affects the scope of the ~. relief which the Act obviously extends to the tenants falling under its provisions.

Section 9 (I) which enables a tenant to purchase on determination of the lease the land of 'the landlord is somewhat unusual.

But it cannot be said that it imposes an unreasonable restriction upon the right of the landlord to /. hold and dispose of property within the meaning of An. 19 ( 1 )! f) of the Constitution.

The Act applies to only a limited class of lands : it applied to lands granted in lease for construction of buildings before the date with effect from which the Act is extended to the town or village.

It was enacted with a view to give protection to the tenants who had, notwithstanding the usual covenants relating to deter- ~. mination of tenancies, obtained lands on lease in the hope that so long as they paid and continued to pay fair rent, '\. they would not be evicted, but because of changed conditions 1 as a result of the War, appreciation in land values and consequent increase in the level of rents, were faced with actions in eiectment involving dismantling of properties constructed by them. and evictin. The protection becomes effective onlv when the landlord seeks to obtain, in breach of the mutual understanding. benefit of the unearned incre- • ment in the bnd values. by instituting a suit in ejectment.

It was manifestlv in the interest of the general public to effectuate the m utua I understanding between the landlords and the tenants as to the duration of the tenancies, and to conserve building materials by maintaining existing buildings for purposes for which the leases were granted. Restric- .._ tion imposed upon the right of the landlord to obtain - possession of the premises demised according to the terms

,''(,

"I .1

of the lease would, therefore, not be regarded as imposing an unreasonable restriction in the exercise of the right conferred upon the landlord by Art. 19 (1) (f) of the Constitution, because the restriction would be regarded as in the interests of the general public.

We ought to emphasise that what s. 9 does is not so much to deprive the landlord of his property or to acquire his rights to it as to give effect to the real agreement between him and his tenant which induced the tenant to construct his building on the plot let out to him. If the law is not invalid as offending Art. 19 (1 )(f) of the Constitution, no independent infringement of Art. 31 ( 1) of the Constitution may be set up.

It was urged, however, that by the statute as amended by the Madras City Tenants' Protection (Amendment) Act VI of 1926 (before it was amended by Act 13 of 1960),

the price which the Court may fix and at which the tenant is entitled to purchase the lane! is to be the lowest market value prevalent within seven years preceding the date of the order.

This, it was submitted was unreasonable.

But it is not necessary for the rpurpose of this case to decide that question, for the Company has offered to pay the market value of the land as at the date on which the order was passed by Panchapakesa Iyer, J.

That absolves us from the necessity to adjudicate upon the reasonableness of the provisions relating to payment of compensation at the rate prescribed by the Act as amended by Act VI of 1926.

We may observe that by the Amending Act 13 of 1960 several alterations have been made as regards the extent of the right of the tenants to require the landlords to sell the land and the price which has to be paid by the tenants for purchasing the land.

For instance. under the Amending Act the Court .nay direct sale only of the minimum area of land necessary for convenient enjoyment by the tenant of the house built by him and the rprice is to be the average marked value in the three years immediately preceding the date of the order.

In view of this amendment, and having regard to the special circumstances, viz. the offer made by the Company, notwithstanding the provisions of the Act, to pay the market value of the land at the date of the order, we decline to enter upon an academic consideration as to the validity of the

1a~159 s.c.-s~

N. Vajrapanl

Naidu

New Theatre Carnatic Talkies

Shah J.

N Vajrapani Naidu v.

Ntw Theatre Carnt.ttic Talkie1

Shah J.

provmon fixing compensation at the lowest market value prevalent within seven years preceding the date of the order.

Assuming that a provision fixing such compensation is •mreasonable and therefore invalid, it would be clearly severable from the rest of the statute and would not affect the validity of the provision relating to acquisition by the tenant of the land demised by purchasing it from the landlord.

At best, the landlord would be entitled to obtain compensation which is equivalent to the market value, and that the Company has agreed to pay. That, however, is a matter on which we express no opinion.

The appeal therefore fails and is dismissed. There will be no order as to costs.

Ayyan1ar I.

AYYANGAR, J.-We regret our inability to agree with the order that the appeal should be , dismissed.

The facts of the case have been set out in the Judgment of our brother Shah, J. and do not, tlierefore, require to be repeated.

The two principal points arising for consideration and on which the decision of the appeal would turn are, first, the interpretation of s. 12 of the Madras City Tenants Protection Act (Madras Act ill of 1922) and, second, the constitutional validity of s. 9 of that enactment. Section 12 enacts :

"Nothing in any contract made by a tenant shall take away or limit his rights under this Act, provided that nothing herein contained shall affect any

stpulations made by the tenant in writing registered as to the erection of buildings, in so far as they relate to buildings erected after the date of the contract."

The question that first calls for examination is the proper construction of s. 12 and in particular the meaning and effect of the proviso contained in it.

Before, however, taking up the words of the section, it would be useful to read the preamble and certain of the other provisions of the Act because it is in the light of the guidance afforded by them that the content of the proviso to s. 12 could be determined.

The preamble recites that the Act had been I

enacted as it was "found necessary to give protection to tenants who in municipal towns and adjoining areas in the State of Madras have constructed buildings on others' land in the hope that they would not be evicted so long as they pay a fair rent for the land". Section 1 ( 3) of the Act which defines the tenancies within the local area to which the Act extends enacts (to read the provision as it now stands) that the Act shall apply only "to tenancies of land created before the commencement of the Madras City Tenants Protection (Amendment) Act, 1955 and in any municipal town or village to which this Act is extended by notification under

5Ub-s. (2) only to tenancies created before the date with effect from which this Act is extended to such town or village." From these provisions two matters are clear:

(1) that the Act was enacted in order to ensure that the hope entertained by tenants who had constructed buildings on others' lands that they would not be evicted so long as they paid fair rent was not frustrated, and (2) that the Act has application only to tenancies which having commenced earlier were subsisting on the date on which the Act came into force in the particular area.

With these preliminary observations we shall proceed to deal with the construction of s. 12 of the Act.

The tenancy under which the respondent was inducted into the land on which he has constructed buildings was of 1934, a date long anterior to 1958 when by a notification issued under s. 1 (2) of the Act its provisions were extended to the municipal town of Coimbatore where the land involved in the present proceedings is situated. It was therefore a tenancy governed by the provisions of the Act. Next, the lease under which the respondent held the land was in writing registered, and therefore the only question to be considered is whether the stipulations it contains are comprehended by the proviso.

Section 12, it would be seen, is made up of two limbsfirst a general provision saving to tenants comprehended by the Act, the rights conferred by its operative terms, notwithstanding any contract, and next a proviso which makes an inroad into the generality of the saving, by saving con-

N. Vajrapanl

Naidu v.

New Theatre Carnatic Talkitl

Ayyangar !.

N. Vajrapani Naidu v.

New Theatre Carnatic Talkies

.A.yyangar J.

tractual stipulations from the operation of the statutory rights created by the Act. The entirety of the debate before us is as to the nature, scope and width of the saving effected by the proviso. It does not need any argument to establish that if s. 12 had stopped with its first limb, the respondent would be entitled to the benefit of every right conferred upon tenants by the Act, but the proviso it is conceded is intended to cut down the scope of that saving. Expressed in other terms, from the prohibition against the operation of any stipluation in a contract limiting the rights conferred on tenants by the Act an exception is carved out. So much is common ground but the controversy is as regards the scope and limits of that exception. As regards the exception contained in the proviso four matters are clear: ( 1) The stipulation must find a place in a contract in writing which is registered, (2) the sipulation which is within the proviso and to that extent detracting from the non-obstante provision contained in the opening words must be one in relation to "the erection of buildings", (3) it must relate to buildings erected after the date of the contract, and ( 4) if there is a stipulation satisfying these three conditions such stipulation would have effect notwithstanding anything in the previous part of s. 12 which would be the same thing as saying that the rights of the tenant under the Act may be taken away or limited; by such a stipulation.

It is common ground and beyond controversy that conditions 1 & 3 above are satisfied and the only point in dispute is whether the 2nd condition is satisfied so as to attract the operation of condition 4.

The learned Judges of the High Court have understoo<!. the words "as to the erection of buildings" occurring in .... the proviso as equivalent to a stipulation regarding the manner in which the building may be erected, the materials to be used, the area the building should cover and other details in relation to the construction of the building and as not apt to cover the case of a stipulation whereby the tenant undertakes to remove the buildings constructed by him on the termination of the tenancy; and that was also the submission made to us by Mr. Setalvad on behalf of the respondent. With the greatest respect to the learned Judges

of the High Court we are unable to agree with this construcr- tion of the proviso.

Before examining this we think it convenient and even necessary to refer to the tenns of the lease deed under which the appellant became a tenant before considering whether it is a stipulation which would fall within the words "stipulations as to the erection of buildings". The lease deed which has been marked as Ex. B-1 in the case is a registered ...' instrument dated September 19, 1934.

The tenn of the demise wa~ a period of 20 years from the date of delivery of possession and the rent stipulated was Rs. 1,080/- per year. The purpose for which the site was leased is stated in , the document to be "to construct buildings thereon as he (the lessee) requires on the aforesaid site for the purpdse of cinema, drama etc. at his own expense and also further rconstructions necessary for the same". This is followed by two clauses which have some relevance.

Notwithstanding that the lease was for a fixed definite period of 20 years, the lessee was permuted to surrender the lease if he found that the business venture for which the lease was taken was not profitable.

In that event the lessee was entitled to surrender the lease, and put an end to the tenancy, when he had to dismantle the buildings constructed by him at his own expense and pay to the lessors one year's rent for r loss by the latter sustained by the premature tennination of the , lease. If this condition as to the removal of buildings were not fulfilled by the lessee, the lessors. were authorised to take ipossession of the vacant site dismantling the constructions and demolishing the walls. On the tennination of the stipulated period of 20 years the lessees stipulated that they would dismantle the constructions by demolishing the walls

1> etc. and deliver possession of the vacant site to the lessors.

The qustion now for consideration is whether this stipulation contained in the registered lease deed that at the end of the tenn the lessee would demolish the buildings which he had erected and deliver vacant possession of the site is a stipulation which is saved by the proviso to s. 12. If the scope of the proviso had to be construed in the light of the preamble, it is obvious that the tenant who had entered into a contract with a stipulation of the sort we have extracted, could not be said to have constructed the buildings on

N. V ajrapani Naidu v.

New Theatre Carnatic Talkies

Ayyangar J,

N. Vajrapani Naidu v.

New Theatre ·:arnatic Talkies

Ayyangar J.

another's land "in the hope that he would not be evicted so long as he pays rent for the land". The preamble would, therefore, indicate that the Act would not apply to afford protection in a case where by an express term in a registered lease deed a tenant agreed to surrender the site on which he had erected a building where he specifically contracted that he would demolish the building and deliver vacant possession of the site on the termination of his tenancy.

The next matter to be noticed is that the tenancies dealt ·~ with by the Act are tenancies which came into existence prior to the enactment or prior to the date .the Act became operative in the local area and therefore one cannot expect stipulations worded in exactly the same terms as in the Act, because exconcessis the Act and its provisions were not in the contemplation of the parties when they enterect into the contract.

The mere fact, therefore, that a stipulation "' as regards the erection of the buildings is not worded in the same manner as under the provisions of the Act or in terms of the Act is no ground for refusing effect to it.

Lastly, since what is saved by the proviso from the operation of the Act are the rights which are created in favour of tenants by the Act, we are led to an inquiry as to the rights which are conferred by the Act, for the saving must obviously have reference to and be determined by these rights.

Broadly speaking two kinds of rights have been conferred on lessees under tenancies falling within the scope of the Act-first a right to the payment of compensation for buildings erected by them on leased land before they are evicted, (under s. 3 of the Act) and secondly (this of course could be only in the alternative) a right or option to require the landlord to sell them the land under lease for a price to be computed in accordance with s. 9. It is obvious from the very nature of things having regard to the time when the lease was entered into that there would not and could not in terms be a stipulation in a deed against the option accorded to a teuant to purchase the leased land, and the matter is so self evident as not to need any argument in support. We therefore reach the position that the stipulation contemplated by the proviso to s. 12 could only be one in relation to the right of the tenant to claim compeni•ation for the buildings erected by him after the

• ' '

commencement of the tenancy.

Expressed differently, though the proviso is worded as to permit the saving of stipulations contained in registered deeds whether the stipulations relate to the right to the compensation receivable by tenants under s. 3, or their right to require the sale of the leased land to them under s. 9 when .on the termination of the tenancy they are sought to be evicted, the latter right is not one which could be affected by an express stipulation in that regard, but its non-availability to the tenant could be brought about only by a stipulation bearing on the right of the tenant to compensation under s. 3 for buildings erected by him during his tenancy.

,;.; We shall now proceed to ascertain the stipulation which

would affect the right to compensation in respect of buildings erected conferred on tenants by s. 3.

That provision reads:

"Every tenant shall on cjectment be entitled to be paid as compensation the value of any building, which may have been erected by him, by any of his predecessors in interest, or by any person not in occupation at the time of the ejectment who derived title from either of them, and for which compensation has not already been paid.

A tenant who is entitled to compensation for the value of any building shall also be paid the value of trees which may have been planted by him on the land and of any improvements which may have been made by

him."

A stipulation which if effective would limit the quantum of compensation payable in respect of buiidings construct- ed by a tenant provided for by s. 3, it is conceded, is within the proviso to s. 12 as being one with respect to the "erection of buildings".

The effect of this concession on the meaning of the proviso, we shall consider later.

But the question is whether these wotds can on any resonable construction be limited or confined to such a contingency.

Let us take a case where in a lease like the one before us ~· for a fixed term say of 20 years there is a stipulation that the tenant shall not b\lild on the land and that if he erected

JV. l'ajrapani

Naidu v.

New Theatre Carnatic Talkies

Ayyan1ar /,

N. Vajra11ani Naidu v.

New Theatre Carnatic Talkies

Ayyangar J.

buildings he shall remove the structures, and deliver vacant possession at the end of tbe tenancy.

Obviously such a stipulation would imply that he shall not claim any com- ipensation for the structures which contrary to his uner

talcing he erects.

We did not understand Mr. Setalvari to whom this was put during arguments to contend that the tenant, who constructed buildings under a lease with a stipulation such as this would be able to obtain compensation under s. 3, with the attendant rights conferred by s. 9.

This can only be on the basis that a stipulation forbidding the erection of buildings by the lessee is a stipulation as ·, regards "erection of buildings"-notwithstanding that it is part and parcel of this stipulation that the tenant shall demolish buildings which he constructed. If a stipulation forbidding erection of buildings and requiring their removal before surrendering possession of the site is conceded to be one 'in respect of erection of buildings'-as has to be .<,

conceded, it is not possible to accept the construction that a stipulation for the removal of buildings which the lessee is permitted to erect and keep in the site only for the duration of the tenancy is any the less one "in respect of erection of buildings". We understand these words to mean a stipulation which bears on or is in relation to the erection of buildings.

Such a construction would reconcile the proviso with the preamble which sets out the object sought to be achieved by the Act. If the lease deed contains no ~. stipulation whatsoever in regard to the erection of buildings, as was the case with the large number of leases in the city of Madras which were entered into prior to the enactment of the Act in 1922, the tenant who erected a building ex concessis without contravening any undertaking on his part. obtains protection under the Act. Again if the lease though !t contains such a stipulation against construction of buildings on the leased land is not by a registered instrument-as were again several leases in the city-the statutory rights to compensation and purchase were protected. If however the parties had recourse to a formal registered instrument for putting through the transaction and such a deed contained a stipulation against erection of buildings, or against the continuance of the buildings on the land at the tennination -~ of the tenancy, or what comes to the same thing against the tenant being entitled to compensation for the buildin!!s

erected by him during the currency of the lease, the stipulation would govern the rights of the tenant and not the statute. This in our opinion is the proper construction of the proviso to s. 12. The test would therefore 1"-"did the parties advert to and have in mind the contingency of the tenant erecting buildings on the leased land"? If they had and had included in a solemn registered deed a provision which would bear upon the relative rights of the parties in the event of the erection of buildings on the site, the stipulation would have effect notwithstanding the Act; for in such an event the tenant would not have constructed buildings on the land in the hope that he would not be disturbed from possession so long as he paid the rent agreed upon.

Before concluding we shall examine how far the limited meaning attributed to the phrase "as to the erection of buildings" can be sustained. First let us take a case where there is a stipulation in a registered deed under which the lessee in consideration of a favourable rent undertakes to construct buildings of a particular type and deliver possession of the site as well as the building constructed at the end of the term without any claim to compensation.

On: the construction put forward by the respondent this would be a stipulation which would be saved by the proviso since it refers to the construction of buildings and not removal, though it negatives all right to compensation to which he would be entitled under s. 3. Such a stipulation being valid and enforceable, on a suit for ejectment being

file4, the tenant would not be entitled to CQ111pensation and would therefore be outside s. 9 because s. 9 applies only ' to cases where the tenant isentitled to compensation. Now, does it make any difference if the deed stipulated that the buildings erected by the tenant should be removed, without any claim to compensation in the event of non-removal. We

1-"llll see no sensible distinction between the two cases.. and if the one is a stipulation in respect of "erection of bnildings", the other is equally sc..

1 Next we shall take the case which the respondent asserts . is precisely the one intended to be covmd by the provtSO viz: a stipulation that the lessee shall not construct a bnilding

1 in excess of a pa11li.cular plinth area, or beyond a ground- . ft.oor, or in excess of a specified number of rooms.

134-159 S.C.-66.

1!164

N. Y 11/rapa11i

Naitbl

Nl!W Thntre CanuJtic Talkla

Ayyangar I.

N. Y ajrapani Naidu v.

New Theatre Carnatic TgJkie1

A.yyangar ],

SUPREME COURT REPORTS [1gtJ4j

Obviously the question about the applicability of the proviso would come in only if the tenant broke the covenant an we shall therefore assume that in breach of the stipulation, the tenant erects buildings contrary to his undertaking. In such an event it is said that when the compensation to which the tenant is entitled under s. 3 is computed, the amount would be confined to what he would have got, if he had abided by the contract.

But this is to ignore the basic feature of the Act, under which the tenant who is entitled to compensation under s. 3, and certainly the limited com- , pensation that the tenant obtains even when he breaks a covenant would still be compensation under that section, is

tntitled to purchase the lease land under s. 9. The c; onstruction suggested therefore comes to this that though under the proviso to s. 12 there might be stipulations which might reduce the quantum of compensation to which a tenent would be entitled under s. 3, there cannot be a stiphlation apart possibly from a covenant against any erection of buildings which we have already dealt with, which would preclude a tenant from his right under s. 9. If as must be conceded the first limb of s. 12, sa:ve the statutory rights of tenants both under SS. 3 & 9 from the operation of any contract, it appears to us to stand to reason that the proviso which saves rights lll!der contracts from the rights cqnferred

by the Act should be construed to be co-extensive with and operate on the same field as the opening portion of s. 12.

We are, therefore, clearly of the opinion that the learned Judges of the High Court were in error in their construction of the proviso to s. 12. In this view the question as regards the constitutional validity of s. 9 would not really arise for consideration, and we express no opinion on it. We would accordingly allow the appeal and decree the suit for eject ment filed by the appellant.

ORDER

In accordance with the majority opinion, the appeal is dismissed.

No order as to costs.

Auueal dismissed.

GMGIPND-L-134-59 S. C. Of India(6021-46)-18- 10-65--2.?0C),

s. 35

s. 35

the Code of Civil Procedure

s. 35

VAJRAPANI NAIDU AND ANOTHER

K. N. WANCHOO

N. RAJAGOPALA AYYANGAR

S. M. S!KRI

PriJtection Act, 1922

ss. 9, 12

Tilt appellant

Abirama Cbettiar

Madras

s. 9

Gajendragadkar

Shah

Sikri

section 12

s. 12

Section 9( I)

Art. 19(1)

Art. 31

Ayyangar

s. 12

Madras High Court

A. V. Viswanatha Sastri

R. Ganapathy Iyer

M. C. Setalvad

M.A. Sattar Sayeed

R. Thiagarajan

GAJENDRAGADKAR

SHAH

SIKRI

WANCHOO

AYYANGAR

Vajrapani Naidu

Coimbatore

Abirama Chettiar

Abirama Chettiar

New Theatre Carnatic Talkies Ltd.

September 19, 1934

March 9, ;.

September 19, 1954

District Court at Coimbatore

High Court at Madras

February 10, 1958

State of Madras

s. 9

Panchapakesa Iyer

s. 9

Protection Act, 1922

July 28, 1958

cl. 15

High Court of Madras

s. 9

Protection Act, 1922

s. 9

Arts. 19(1 )(f) and 31

s. 9

N Vajrapan1

Transfer of Property Act

s. 9

s. 12

Government of Madras

February I 0. 1 958

s. 12

s. 12

s. 9

s. 12

s. 12

s. 9

Section 12

ss. 3 and 4

s. 9

s. 12

s. 12

Section 12

s. 9

s. 12

s. 12

s. 12

Section 9

Art. 19

s. 9

Art. 19

Art. 31

may observe that by the Amending Act

N. Vajrapanl

Naidu

Ayyan1ar I.

AYYANGAR

s. 12

s. 9

Section 12

s. 12

s. 12

Section 1

s. 12

s. 1

Section 12

.A.yyangar

s. 12

s. 12

Setalvad

s. 12

s. 3

s. 9

s. 12

s. 3

s. 9

s. 3

s. 3

s. 3

s. 12

Setalvari

s. 3

s. 9

s. 12

s. 3

s. 9

s. 9

s. 3

s. 3

s. 9

s. 12

s. 3

s. 9

s. 12

SS. 3 & 9

s. 12

s. 12

s. 9


January 7

SUPREME COURT REPORTS

AFRAHIM SHEIKH AND OTHERS

STATE OF WEST BENGAL

(M. HIDAYATULLAH AND RAGHUBAR DAYAL JJ.)

Criminal Trial-Penal Code-Convictio11 under s. 304 Part II-If can be read with s. 34--'•/ntention" & ~K11ow/edge"-/11dian Penal Code, 1860 (45 of !860), ss. 34, 35. 38 and 304.

The six appellants were convicted under s. 304 Part II with s. 34 of the Indian Penal Code by the SesSions Judge an'd their appeal was summarily dismissed by the High Court. On appeal by special leave, it was contended that s. 304, Part II could not be read with s. 34 Indian Penal Code because the second part of s. 304 excluded intention and was concerned with knowledge an'd the conviction was illegal.

Held: (i) Section 34 when it speaks of a criminal act done by several persons in furtherance of the common intention of all, has regard not to the offence as a whole, but to the criminal act, that is tu say, the totality of the series of acts which result in the offence. In the case of a person assaulted by many accused, the criminal act is the offence \Vhich finally results, though the achievement of that criminal act may be the result of the action of several persons.

(ii) Knowledge in s. 304 Part II is the knowledge of likelihood of de1th and the common intention is with regard to the criminal act.

If the result of the criminal act is the death of the victim and if each of the assailants possesses the knowledge that death is the likely conse quencc of the criminal act, there is no reason why s. 34 shoufd not be read with the second part of s. 304 to make each liable individually.

/bra Akanda v. Enzperar, I.L.R. [1942] 2 Cal. 405 and Saidu Khan

v. State, I.LR. [1952] I All. 639, approved.

Ramnath v. Emperor, A.l.R. 1943 All. 271. Shahibzada v. The Crol1'11 A.I.R. 1950 Peshawar 24, Debi Chand Haldar v. Emperor, 41

C.W.N. 570 and Barendra Kumar Ghosh v. Emperor, (!925) !.L.R. 52 Cal. 197. referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 134 of 1963.

Appeal by special leave from the judgment and order dated March 5, 1963, of the Calcutta High Court in Criminal Appeal No 156 of 1963.

D. N. Mukherjee, for the appellants.

P. K. Chakravarti and P. K. Bose, for the respondent.

January 7, 1964.

The Judgment of the Court was delivered by

Afrahim Sheikh

The State of Wesr

Bengal

HIDAYATULLAH J.-The six appellants who have a:; i- Hidayatullah r pealed to this Court by special leave were convicted by the Assistant Sessions Judge, Birbhum under s. 304 Part II read with s. 34 of the Indian Penal Code and sentenced to six years' rigorous imprisonment each.

Their appeal to the High Court was summarily dismissed.

When the ppcilants applied for a certificate in the High Court they made it plain that the only point which was required to be considered by this Court wa1 whether s. 34 could be read m conjunction with Part II of s. 304, Indian Penal Code. In this Court the argument was confined to this point of law.

The High Court rejected the application for the certificate pointing out that the controversy had been settled by a Full Bench dcision of the High Court reported in /bra Akanda v. Emperor(').

The learned Judges were of the opinion that the point was r.ot of sufficient importance for penn!tting the appellants to take an appeal to this Court

For the consideration of the point of law which has been debated before us, we may state only such facts as will bring out the controversy.

One Abdul Sheikh in the company of his son, Adut, aged 13. went to his field in village Noapara to uproot linseed plants.

This was on the morning of March 13, 1962.

While he was so employed, two of the appellants, Afrahim and J esed, appeared on the scene, and Afrahim asked Jesed to catch hold of Abdul Sheikh. Abdul Sheikh took to his heels and was chased by these two appellants, who overtook him and threw him down on the ground Immediately thereafter, there appeared on the scene the reniaining appellants. Jarahim was armed with a ha/lam and he started to hit Abdul Sheikh on his legs with the hallam.

The appellant. Manu. arrived with a sabal (crowbar), and began to strike Abdul Sheikh and the appellant, Mesher. began to strike Abdul Sheikh with a lathi. All this, while, the sixth appellant, Makid, held Abdul Sheikh by the legs and Afrahim and Jesed held him down by his head and shoulders.

The incident was witnessed by Adut and two others, and it is on the testimony of Adut and these tWC1

(I) I. L.R. (1944) 2 Cal. 405.

1964 other witnesses, to whom reference is unnecessary, that the Afrahim Sheikh learned Assistant Sessions Judge, Birbhum, came io the conv. clusion that the offence was committed in the manner describ The State of West d b Abd 1 Sh "kh 1 · d b h h" 1 B"ngal e a ove. u e1 was serious y m1ure ; ot 1s egs below the knee were fractured and one arm above the wrist Hida.vatullah 1 was also fractured. He had also some incised wounds and some bruises.

He was examined by one Dr. Bashiruddin, who gave him first aid. Dr. Bashiruddin stated on oath that Abdul Sheikh narrated to him the incident and named all the six appellants.

Later, Abdul Sheikh was removed to Nalhati Health Centre, and while arrangements were being nrnde for recording his dying declaration, he succnm hed to his injuries. He had, however, made dying declarations to some of the prosecution witnesses and they have depoied to the fact that he had named the six appellants as his assailants.

In this appeal, we did not allow Dr. D. N. Mukherjee, counsel for the appellants, to argue on facts.

We assumed that the incident took place as narrated by the witnsscs Mr. Mukherjee contends that the conviction of the appellants under s. 304, Part II is illegal, because according to him. s. 34 cannot be called in aid. as the second part of s. 304 concerns itself with knowledge and absolutely excludes intention as the ingredient of the offence.

He relies upon the minority decision of Das J. (as he then was) in /bra Akanda

v. Emperor(').

In that case, the learned Judge had expressed the opinion that s. 34 was incapable of being read with the second Part of s. 304.

With the view of the learned Judge, Lodge J. differed anq the case was then placed before Khundkar J. who agreed with Lodge J., and the decision was that s. 34 could be so read.

At the hearing~.

Mukherjee drew our attention to three other cases in which a view supporting his contention appears to have been taken.

I The first is a single Judge decision of the Allahabad High Court reported in Ramnath v. Emperor('), and the other is a Division Bench case from Peshawar reported in Sahibzada v. The Crown('). He also referred to an earlier Calcutta case reported in Debi Charan Haldar v.

Emperor('), in which a division Bench had expressed some

(1) I. L. R. (19441 2 Cal. 405.

(3) A.I.R. 1950 Peshawar 24.

(2) A.l.R. 1943 AIL 271. r4) 41 C.W.N. 570.

. doubts about 1.he applicability of s. 34 to s. 304, Part I. As 1964 against this, Mr. Chakravarti, counsel for the State relied Afrahim Sheikh upon a Full Bench decision of the Allahabad High Court Th 5 v. f w reported in Saidu Khan v. State(') where it has been e

1 ~n:al est clearly held that s. 34 can be so read.

Before dealing with the point of law, we shall refer to the essential facts once again.

Apart from the fact that there is proof that there: were two parties and there was enmity between the appellants and Abdul Sheikh, the facts proved in the case clearly establish that Abdul Sheikh had gone for a peaceful purpose in the company of his young son, and immediately after his arrival, he was chased by two of the appellants and caught and felled to the ground.

After this the remaining four appellants appeared and beat Abdul Sheikh with diverse weapons, while those who were not armed, held him pinned to the ground.

Mr. Chakravarti is right in contending on these facts that the act took place in furtherance of a common intention.

No doubt, as has been laid down by the Privy Council and by this Ceurt in cases which are now very familiar, common intention must exist before the criminal act is perpetrated, and that is the essence of s. 34.

Here, in our opinion, :that requirment was completely satisfied, because the six accused could not but by a prior concert have appeared simultaneously at the scene, and chased and overthrown the. victim, held him down and beaten him.

The facts disclosed in the evidence clearly establish a prior concert amongst the six appellants.

It has 'been so infered by the Assistant Sessions Judge, and we see no reason to differ from him.

Now that the criminal act has been held by us to have 'been the result of a previous concert and in furtherance of the common intention, we shall proceed to examine whether s. 34 IP.C. can be made applicable for the purpose of holding that culpable homicide not amounting to murder was .committed, and that each of the appellant was responsible for the offence.

Section 34 of the Indian Penal Code reads :as follws:

"When a criminal act is done by several persons, in furtherance of the common intention of all, each

(1) LL.R. '[19<~]' A11. 639.

Hidayatullah ].

Afra/Jim Sheikh v.

The State of West

of such persons is liable for that act in the same manner as if it were done by him alone."

Bengal In s. 33 which precedes, it is laid down that the word "act".

Hidayatullah J. denotes not only a single act but also a series of ats. In other words, as was stated by the Judicial Committee, in Barendra Kumar Ghosh's case (1) "a criminal act means. that unity of criminal behaviour, which results in something, for which an individual would be punishable, if it were all done by himself alone, i.e., a criminal' offence." Here, the beating was perpetrated not by a single individual but by three persons with whom others were acting in concert. The criminal act resulted in the criminal offence of culpable homicide not amounting to murder.

There is no dispute as to that.

Whether all the appellants individually would be responsible for the death of Abdul Sheikh is the question to be determined, and that conclusion can only be reached if it can be said that the act which was committed was done in furtherance of a common intention.

It is argued ihat s. 304 makes a difference in its two parts between the ccmmission of the offence of culpable homiide with a particular intention and the commission of the same offence without that intention but with a particular knowledge.

It is urged that this distinction makes it impossible that s. 34 which. deals only with common intention can be read with it. Sec-· tion 304 reads as follows:-

"Whoever commits culpable homicide not amounting

to murder, shall be punished with imprisonment for life, or imprisonment of eitheP description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

or with imprisonment of either description for a

term which may extend to ten years, or with fine, or with both. if the act is done with the knowledge that it is likely to cause death, but

(I) [1925] l.L.R. 52 Cal. 197.

without any intention to cause death or to cause such bodily injury as is likely to cnse

death."

A.frahim Sheikh

Th• State of West Sec. 304 does not define culpable homicide not amounting . Bengal to murder. That definition is to be found in s. 299, which Hidayatullah J, provides:

"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.;'

Culpable homicide is the causing of the death of a person in three ways: (1) with the intention of causing death, ( 2) with the intention of causing such bodily injury as is likely to cause death, and ( 3) with the knowledge that the offender is likely by such act to cause death. The offence of culpable homicide becomes murder when four circumstances exist.

They are mentioned in.s. 300.

A number of exceptions are however included, and those exceptions show extenuating circumstances on strict proof of which the offence is again brought down to culpable homicide not amounting to murder.

The causing of the death of a person by doing an act accompanied by intention in the two ways described in s. 299 or with the knowledge that the act is likely to cause death also decribed there is thus distinguished from cases of deaths resulting from accident or rash and negligent act and those cases where death may result but the offence is of causing hurt either simple or grievous Once it was established, as was established in this case, that the

act was a deliberate act and was not the result of accident or rashness or negligence, it is obvious that the offence which was committed was one under s. 304.

In the present case however death was not the result of the act of a single individual but was the result of the act of several persons, and they shared the common intention, namely, the commission of the act or acts by which death was occasioned.

Section 34 is a part of a group of sections, of which some other sections may also be seen. Section 35 is as follows:

134-159 S.C.-12.

A.fr""'m Sheikh

•• Th Stat• of West

"Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention."

B1ngal

Bf"1atul1"h /.

In this section also the responsibility is shared by eaGh offender individually if the act which is criminal only by reason of certain criminal know ledge or intention is done by each person sharing that knowledge or intention.

Indeed, this section also was applicable here. Under s. 37, "when an offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with an): other person, commits that offence." By co-operating in the doing of several acts which together constitute a single criminal act, each person who co-operates in the commission of that offence by doing any one of the acts is either singly or jointly liable for that offence. Section 38 then provides:

"Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act."

That is to say, even though several persons may do a single criminal act, the responsibility may vary according to the degree of their participation. The illustration which is given clearly brings out that point.

Viewing these sections in this manner, it is obvious that two sections in this group deal with individual responsibility for a single criminal act perpetrated by a large number of persons who either share a common intention or possess the criminal knowledge (ss. 34 and 35) and the third with cooperation between several accused in the completion of the criminal act (s. 37). Lastly s. 38 provides that the responsibility for the completed criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act, and this section does not mention anything about intention common or otherwise or knowledge.

Section 34, when it speaks of a criminal act done by 1964 several persons in furtherance of the common intention of Afrahlm SIWll all, has regard not to the offence as a whole, but to the y. criminal act, that is to say, the totality of the series of acts TIN 81'if:,.:!, Wut which result in the offence. In the case of a person assaulted by many accused, the criminal act is the offence which finally Rldayolul/1111 1. results, though the achievement of that criminal act may be the result of action of several persons. No doubt, a person is only responsible ordinarily for what he does and s. 38 ensures that; but the law in s. 34 (and also s. 35) says that if the criminal act is the result of a common intention, then every person who did the criminal act with the common intention would be responsible for the total offence irrespective of the share which he had in its perpetration. In Barendra Kumar Ghosh' s case('), the Judicial Committee observed:

"Sec. 34 I.P.C. deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself.

That act' and then again 'it' in the latter part of the section must include the whole of the action covered by the criminal act in the first part of the section." Provided there is common intention, the whole of the result perpetrated by several offenders. is attributable to each offender, notwithstanding that individually they may have done separate acts, diverse or similar. Applying this test to the present case, if all the appellants shared the common intention of severely beating Abdul Sheikh and some held him down and others beat him with their weapons, provided the common intention is accepted, they would all of them be responsible for the whole of the criminal act, that is to say, the criminal offence of culpable homicide not amounting to murder which was committed, irrespective of the part played by them. The common intention which is required by the section is not the intention which s. 299 mentions in its first part.

That intention is individual to the offender unless it is shared with others by a prior concert in which case ss. 34 or 35 again come into play. Here, the common

(1) [19251 I.L.R. 52 Cal. 197

1961 intention was to beat Abdul Sheikh, and that common .tffro/llm Sh•ikh intention was, as we have held above, shared by all of them.

That they did diverse acts would ordinarily make their The 8'f:,,:!i West responsibility individual for their own acts,. but because of the common intention, they would be responsible for the H/""7atullah

1. total effect that they produced if any of the three conditions in s. 299, l.P.C. applied to their case. If it were a case of the first two conditions, the matter is simple. They speak of intention and s. 34 also ll_;)eaks of intention.

The question is whether the second part of s. 304 can be made applicable. The second part no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part. But knowledge is the knowledge .of the likelihood of death. Can it be said that when three or fo\lf persons start beating a man with heavy lathis, each hitting his blow with the common intention of severely beating him and each possessing the knowledge that death was 'the likely result of the beating, the requirements of s. 304, Part Il are not satisfied in the case of each of them?

If it could be said that knowledge of this type was possible in the case of each one of the appellants, there is no reason why s. 304, Part Il cannot be read with s. 34. The common intention is with regard to the criminal act, i.e., the act of beating. If the result of the beating is the death of the victim, and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act, i.e., beating, there is no reason why s. 34 or s. 35 should not be read with thc:_second part of s. 304 to make each liable individually. ··

This matter has been elaborately considered in the judgment of Lodge I. and again in the Full Bench decision of the Allahabad High Court. We do not think that we need / say more on this, because we are in agreement with the decision given by the majority in the Calcutta High Court case and the Full Bench decision of the Allahabad High Court. It appears to us that in other cases doubt was felt because s. 304 is in two parts, and first part is concerned with culpable homicide committed with two types of intention and the second part with culpable homicide committed with a particular knowledge. It appears that it was felt that s. 34. which deals with common intention, could not be read with

the second part of s. 304. In our opinion, the learned Judges 1964 -, who held that view and we say it respectfully fell into the Afrahlm Slwlkll error of viewing the second part of s. 304 divorced from Th s "· / w . . h A d d • lat• 0

•II common mtenllon w atever. person oes not o an act Bingal except with a certain intention, and the common intention Hidayatul/a/i J. which is requisite for the application of s. 34 is the common intention of perpetrating a particular act. Previous cqncert which is insisted upon is the meeting of the minds regarding the achievement of a criminal act. That circumstance is completely fulfilled in a case like the present where a large number of persons attack an individual, chase him, throw him on the ground and beat him till he dies. Even if the offence does not come to the grade of murder, and is only culpable homicide not amounting to murder, there is no doubt whatever that the offence is shared by all of them, and .s. 34 then makes the responsibility several if there was a knowledge possessed by each of them that death was likely to be caused as a result of that beating. This circumstance is completely fulfilled in the present case, and we are, therefore, satisfied that the conviction of the appellants was proper, and see no reason to interfere.

In the result, the appeal fails and is dismissed.

Appeal dismissed.

V.N.VASUDEVA

SETH KIRORIMAL LUHARIW ALA

(M. ffIDAYATULLAH AND J.C. SHAH JJ.)

Rent Control--Ordor for d•po1lt of ""' at lnt•rlocutory ll•g•-lf pro,,.r-Delhi Rent Control Act, 1958 (59 of 1958), •· 15(1)-lndlan Income-tax Act. 1922 (II of 1922), •· "6(5A).

The responllent made an 111plleation qalnst Ibo appellant under

1. 14 of the Delhi Rent Control Act. In reply the appellant pleaded

Januarv. 9

AFRAHIM SHEIKH AND OTHERS

STATE OF WEST BENGAL

M. HIDAYATULLAH

RAGHUBAR DAYAL JJ.

Criminal Trial-Penal Code

s. 304

s. 34

Penal Code, 1860

ss. 34, 35

s. 304

s. 34

Indian Penal Code

s. 304

s. 34

Indian Penal Code

s. 304

Section 34

s. 304

s. 34

s. 304

D. N. Mukherjee

P. K. Chakravarti

P. K. Bose

Afrahim Sheikh

State of Wesr

Bengal

HIDAYATULLAH

Birbhum

s. 304

s. 34

Indian Penal Code

s. 34

s. 304

Indian Penal Code

Abdul Sheikh

Adut

Noapara

March 13, 1962

Afrahim

J esed

Jesed

Abdul Sheikh

Jarahim

Manu

Mesher

Makid

Adut

Afrahim Sheikh

State of West

Bashiruddin

Nalhati Health Centre

D. N. Mukherjee

Mukherjee

s. 304

s. 34

s. 304

Das

s. 34

s. 304

Khundkar

s. 34

Allahabad High Court

Peshawar

Calcutta

s. 34

s. 304

Chakravarti

Afrahim Sheikh

s. 34

Abdul Sheikh

Chakravarti

s. 34

s. 34

IP.C

Section 34

Indian Penal Code

State of West

Bengal

s. 33

Hidayatullah

Barendra Kumar Ghosh

s. 304

s. 34

A.frahim Sheikh

Sec. 304

s. 299

s. 300

s. 299

s. 304

Section 34

Section 35

s. 37

Section 38

ss. 34 and 35

s. 37

s. 38

Section 34

Afrahlm

s. 38

s. 34

s. 35

Sec. 34

I.P.C

s. 299

ss. 34

s. 299

s. 34

s. 304

s. 304

s. 304

s. 34

s. 34

s. 35

s. 304

Calcutta High Court

s. 304

s. 34

s. 304

s. 304

Hidayatul

s. 34

s. 34

V.N.VASUDEVA

SETH KIRORIMAL LUHARIW ALA

M. ffIDAYATULLAH

J.C. SHAH

Delhi Rent Control Act, 1958

Income-tax Act

Januarv

In reply the appellant pleaded

Januarv.


6 S.C.R.

SUPREME COURT REPORTS 181

the second part of s. 304. In our opinion, the learned Judges 1964 -, who held that view and we say it respectfully fell into the Afrahlm Slwlkll error of viewing the second part of s. 304 divorced from Th s "· / w . . h A d d • lat• 0

•II common mtenllon w atever. person oes not o an act Bingal except with a certain intention, and the common intention Hidayatul/a/i J. which is requisite for the application of s. 34 is the common intention of perpetrating a particular act. Previous cqncert which is insisted upon is the meeting of the minds regarding the achievement of a criminal act. That circumstance is completely fulfilled in a case like the present where a large number of persons attack an individual, chase him, throw him on the ground and beat him till he dies. Even if the offence does not come to the grade of murder, and is only culpable homicide not amounting to murder, there is no doubt whatever that the offence is shared by all of them, and .s. 34 then makes the responsibility several if there was a knowledge possessed by each of them that death was likely to be caused as a result of that beating. This circumstance is completely fulfilled in the present case, and we are, therefore, satisfied that the conviction of the appellants was proper, and see no reason to interfere.

In the result, the appeal fails and is dismissed.

Appeal dismissed.

V.N.VASUDEVA

SETH KIRORIMAL LUHARIW ALA

(M. ffIDAYATULLAH AND J.C. SHAH JJ.)

Rent Control--Ordor for d•po1lt of ""' at lnt•rlocutory ll•g•-lf pro,,.r-Delhi Rent Control Act, 1958 (59 of 1958), •· 15(1)-lndlan Income-tax Act. 1922 (II of 1922), •· "6(5A).

The responllent made an 111plleation qalnst Ibo appellant under

1. 14 of the Delhi Rent Control Act. In reply the appellant pleaded

Januarv. 9

V. N. Vllllldeva

"· J:lrori1111JI .l.uhtlrlwala

that the respondent bad no right to recover rent from him as a nolicounder s. 46(5A) of th• Indian Income-tax Act had been issued by the Ii.come-tax Officer, that the respondent had no locll8 standi as the property was in the custody of the Court and a receiver bad been

appointed and that his professional fees were agreed anll be adjusted towards the rent dues. The Rent Controller recorded the statement vf the appellant and after hearing arguments directed the appellant under •· 15(1) of the Delhi Rent Control Act, 1958 to deposit back rents at Rs. 300/· per month.

On appeal the decfaion of the Rent Controller was aftlrmed, and a further appeal to the High Court also failed.

The appellant contendell that the order under s. 15(1) for deposit of rent could only be made at the end of the case and not at an interlocutory stage,

Held: (i) that the order under sub•· (I) of s. IS is not a final order ut is preliminart to the trial of the case and is made only where the r.nt has in fact not been paid. For the purpose of an interim uder it was not nece!Sary that there should have been a full trial and that tbis was clear from the latter part of sub-s. ( 1) of s. IS because under it not only the arrears have to be deposited but rent as it falls

:l.ue h•s to be deposited month by month by the 15th of each succeeding month.

Nalinakhya Bysack and , for. v. Shyam Sunder Halder, A.I.R. 1952 Cal. 198, distinguished.

(; ii Tho notice unJer s. 46(5A) of the Income-tax Act did not amount to a garnishee order and the appellant could make payment

•~ th-. rent wntroller without incurring personal liability because the r.nt C'cntroller ha'd stated in his order that the amount would not be paid to any one till a clearance certificate was obtained from the Incomelax Department.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1041 of 1963.

Appeal by special leave from the judgment and order, dated September 2, 1963, of the Punjab High Court (Circuit Bench) at Delhi in L.P.A. No. 119-D of 1963.

S. T. Desai, J. B. Dadachanji, 0. C. Mathur and Ravin- •er Narain, for the appellant.

H. N. Sanyal, Solicitor-General of India and B. P.

Maheshwari, for the respondent.

January 9, 1964. The Judgment of the Court was delivered by

HIDAYATULLAH J.-This is an appeal by special leave against the order of the High Court, Punjab, dated August

14, 1963, by which an order of the Rent Controller 1mder s. 15 (1) of the Delhi Rent Control Act, 1958, directing the appellant to deposit back rents at Rs. 300 per month from 1st July; 1957, was confirmed. The High Court granted the appellant one month's time from the date of its own order, as the original time had already run out.

The appellant is an advocate, who is practising at Delhi.

He is occupying No. 43, Prithvi Raj Road, New Delhi as a tenant, and his landlord Seth Kirori Mal Luhariwala is the respondent in this appeal.

The tenancy commenced on July 28, 1957, and the memorandum of tenancy, dated July 1, 1957, produced in the case, shows that the premises were taken on a monthly tent of Rs. 300 The memorandum also contains other terms which need not be mentioned here, because they are not relevant to the present appeal.

It appears that Seth Kirori Mal was in arrears in payment of his income-tax, and a sum of Rs. 39,00,000 was outstanding from him. On October 31, 1957, the Income-tax Officer Central Circle, New Delhi, to whom all cases of Seth Kirori Mal were transferred, issued a notice to the appellant under s. 46(5A) of the Indian Income-tax Act directing him to deposit with the Income-tax Officer all sums due by way of rent as also future rents. The appellant sent no reply to this notice .. He had, however, on September 29, 1957, addressed a letter to the respondent Seth Kirori Mal.

The reply of Kirori Mal, dated October 15, 1957, figured in the arguments a great deal, and as it is brief, it may be quoted here:

"From

Dated Paigarh, the 15th October. 1957.

Y. N. Va.rrulna

•• IQrorirnal Lulurrlwalll

Hlda)!alul/olt /.

JI. N. JI a.rudeva

Kirorimal Luharilvala

Hidayatullah J.

Dear Sir,

With reference to letter No. M-17-58, dated 29th September, 1957, I am to write that you may please. adjust six months rent of 43, Prithviraj Road, New Delhi, i.e., Rs. 1800 (rent from 1-10-57 to 31-3-1958) towards your professional fee in part payment thereof.

The balance of your fee will be paid later at the time of final settlement.

Yours faithfully,

(Sd.) Paluram Dhanania,

For Kirorimal Luhariwala.

Kirori Mal also sent a receipt, dated October 16, 1957, for the amount, and is item 23 in the record.

Kirori Mal had litigation in Calcutta. He had brought a suit against four defendants, claiming the present property as his "absolute" and "exclusive self-acquired property"· The case was pending in the High Court and on May I, 1958, an order was made appointing one Chakravarti as a Receiver of the properties including No. 43, Prithvi Raj Road. Chakravarti also sent a notice on July 8, 19 5 8, to the appellant demanding rent already due and also as and when due.

To this notice, the appellant sent a reply on July 19, 1958.

He referred to the payment of rent by adjustment towards fees for the period 1st October, 1957 to 31st March, 1958, which was the subject of the letter above. He stated that as regards rent after 1st April. 1958, he had no objection to pay the amount to the Receiver or any other claimant but regretted that it was not possible for him to make the payment because of the notice served upon him by the Income-tax Officer. He asked the Receiver to get the notice withdrawn, and stated that he would be glad to remit the amount of rent to him when that was done. He also raised the question of certain other expenses which he had incurred in connection with the house which he claimed he was entitled to deduct from the rent and informed that a few repairs were required in the house. A second letter was sent by the Official Receiver on September 5. 1959, making another demand. In his reply, dated September 14, 1959, to this letter, the appellant raised the

.question that a sum of Rs. 23,500 was payable to him for professional services rendered by him to Seth Kirori Mal.

He stated: . ' "You will therefore appreciate that I am entitled to adjust the rent payable against the fees due to me and the amount due to me will absorb the rent for a little over six years.

Even before this Seth Kirori Mal had paid me a sum of Rs. 1800 by way of adjustment of rent towards my professional fees due.

You will, therefore, kindly agree that the rent payable is adjustable against the professional fee due to me."

With this letter, he enclosed a copy of a statement of fees amounting to Rs. 23,500 which he had submitted to bis client on February 4, 1959. The Official Receiver then informed the appellant that the party concerned had denied the claim for fees as absolutely false, and observed in bis letter that the professional fees should be the subject of some other proceeding but the rent should be paid with out delay. He enquired if the amount of rent had been paid to the Income-tax department in response to the notice. In his reply to this letter, on July 5, 1960, the appellant for the first time stated that there was an agreement between him and Seth Kirori Mal to adjust the rent towards his professional fees until the fees were fully paid. He offered to reduce the fees if Seth Kirori Mal had any objection, but stated that till the professional fees were recouped, no rent could be considered to be due from him.

On November 25, 1960, Seth Kirori Mal applied to the High Court at Calcutta for directions to the Official Receiver to take appropriate proceedings to realise the arrears of rent from the appellant, and on December 19, 1960, the High Court appointed Seth Kirori Mal receiver in the case. Seth Kirori Mal then served a notice on December 21, l 960, on the appellant to pay the arrears of rent. To this notice, the appellant sent a detailed reply which, in substance, bas been his defence in the proceedings before the Rent Controller, from which the present appeal has arisen.

V. N. Vasudeva

Kirorimal Luharlwala

Hidayatullah /.

V. N. V asudeva

On January 4, 1961, Seth Kirori Mal made an application under s. 14 of the Delhi Rent Control Act before the Rent Controller, Delhi.

In his written statement in reply to that application, the appellant pleaded that Seth Kirori Mal had no right to recover rent from him, inasmuch as a notice under s. 46( SA) of the Indian Income-tax Act had been issued by the Income-tax Officer, Central Circle V,

Kirorimal Luharlwala

Hldayatu/lah J.

New Delhi. He pleaded that the property was in the custody of the Court, and that Inasmuch as a receiver had been appointed, Kirori Mal had no locus standi to maintain the petition denying at the same tiine that Kirori Mal had informed him that he had been appointed a receiver of the property. The appellant also contended that under the Rent Control Act, a receiver had no right to act on behalf of the landlord.

He referred to the alleged agreement by which fees were to be recouped from rent as and when it fell due, pointing out that on an earlier occasion a sum of Rs. 1800 was allowed to be adjusted towards fees.. Some other pleas were raised, but it is not necessary to refer to them, because they were not raised before us.

The notice to quit which the appellant alleged was not issued to him was filed in the Court of the Controller on May 17, 1961.

The appellant was ordered to inspect it and to be ready for his statement as to the correctness of the nott:e. On the next date, a statement of the appellant was recorded and he denied the notice and also its receipt.

The casl! was then set down for arguments and after hearing the arguments, the Rent Controller passed his order on July 22, 1961. The Rent Controller held that there wa" no proof or1 the file to show that the respondent had any right to make an adjustment of the rent against his professional I dues. He held that the rent was not paid after March 31,

1958. With regard to the plea that a notice under s . . 46 ( 5 A) of the Income-tax Act, 1922, had been issued, the Rent Controller observed that the amount. if deposited in his court, would not be paid to Kirori Mal unless he produced a clearance certificate from the Income-tax Department. The Rent Controller also said that if in the enquiry to be subsequently made, the tenant proved that the amount of fees had to be recouped from rent, the amount would not be paid to Kirori Mal.

Against the decision of the Rent Controller, the appellant filed an appeal before the Rent Control Tribunal. The Rent Control Tribunal affirmed the decision of the Controller, observing that the plea taken by him that his professional fees were to come out of rent was an after-thought and there was no evidence to prove that there was such an agreement between the parties.

On other matters, the Tribunal expressed its agreement with the Rent Controller.

The appellant then appealed to the High Court of Punjab.

The High Court upheld the orders so far made and pointed out that in the letter dated July 19, 1958, to the Receiver, the appellant had not mentioned the agreement. The High Court held that the order made under s. 15 (1 ) of the Act was proper, because it was an admitted fact that rent had not been paid to anybody from April l, 1958. The High Court endorsed the view of the Tribunals below that the notice of the Income-tax Officer did not come in the way of making the deposit of the rent in the office of the Rent Controller, because the amount was not to be paid to anyone till the Rent Controller had decided who was entitled to receive it. The appeal was therefore dismissed.

In this court, emphasis is laid upon the letter of October 15, 1957, by Kirori Mal in which there was an adjustment of Rs. 1800 towards fees. It was contended that thl!re was an oral agreement to use the rent to pay the professional fees. The letter itself does not show that there was any such agreement.

In fact it shows the contrary where it says:

"The balance of your fees will be paid later at the time of final settlement."

This shows that the appellant was not entitled to retain the rent in his hands, and the Tribunals below were justified in saying that the plea about the so-called agreemeut was an after-thought, because till September 14, 1959, the appellant had not mentioned such an agreement.

We are also satisfied that the plea was a mere device to retain the money and to avoid paying the rent. It must be remembered that there were as many as four claimants, viz., the Income-tax Officer, the Receiver and Kirori Mal in person and Kirori

Jf. N. Jf a.rudeva"

•• Kirorimal Lulrariwala

Hidayatullali /."

V. N. Vasudeva v.

Kirorimal Luhariwala

Hidoyatullah J.

Mal as Receiver. but the appellant avoided each of these in turn by pointing to the others, and in this way continued to occupy the premises without payment of any rent.

It was contended however as a matter of law that a proper opportunity ought to have been given to the appellant to prove his plea by leading evidence before ordering that the rent be deposited. Mr. S. T. Desai contended that under s. 15 (1) of the Delhi Rent Control Act, an order for deposit of arrears of rent can only be made after the tenant has been given an opportunity of being heard, because if .the tenant makes a payment or deposit as required of him, the landlord is entitled to take the amount of the deposit and the Controller can award such costs as he may deem fit to the landlord and the case comes to nn end. By way of contrast, he pointed out that the case proceeds if the tenant fails to make the payment or deposit as required of him.

In other words, it was contended that an order under s. 15 (1) for deposit of rent should only be made at the end of the case and not at an interlocutory stage. Mr.

Desai contended that the present order was made at an interlocutory stage and it was wrong, because if the tenant deposited the money, there would be no further hearing and his plea that there was an agreement between the parties that the rent as and when it fell due should be set off against the professional fc; es, would remain untried. In our opinion, this reading is not permissible.

Section 15 (omitting ouch parts as are unnecessary for the present purpose) reads as follows: - Section 15.

(1) In every proceeding for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub-section (1 ) of section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landford or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the ten-

6 S.C.R.

SUPREME COURT REPOR1S 189

V. N. Vasud.va

Kirorimal Luhariwaltl

ant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit month by month, by the fifteenth of each succeeding month, a sum . Hldayatul/ah 1equivalent to the rent at that rate .

• • I I I I I I o t • o I o o o

( 3) If, in any proceeding referred to in subsection ( 1) or sub-section ( 2), there is any dispute as to the amount of rent payahle by the tenant, the Controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of sub-section ( 1) or subsection ( 2), as the case may be, until the standard rent in relation. thereto is fixed having regard to the provisions of this Act, and the

amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within next month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf .

• I I I I I I I I I I I I I I I

( 6) If a tenant makes payment or deposit as required by sub-section ( 1) or sub-section ( 3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant but the Controller niay allow such costs as he may deem fit to the landlord.

(7) If a tenant fails to make payment or deposit as required by this section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application."

It will be noticed that sub-section ( 3) also contemplat1~

V. N. V asudeva v.

Kirorimal Luhariwala

Hidayatullah /.

payment of interim rent determined by the Controller before the entire dispute is settled.

Sub-section ( 6) puts the case under sub-s. (1) and sub-s. ( 3) on the same footing and makes no distinction between them. It is also possible to visualise cases in which the tenant may deposit the amount of rent under protest and claim that his defence be tried. It is not that even on the deposit of the arrears of rent in these circumstances the case would come to an end.

The latter part of sub'section ( l) further shows that not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month.

This also shows that the order under sub-section ( l) is not a final order but is preliminary to the trial of the case and is made only where the rent has in fact not been paid. For the purpose of an interim order it was not necessary that there should have been a full trial. The Rent Controller had the affidavit of the appellant and he

ould judge whether in the circumstances of the case, an interim order ought or ought not to be made. He cam~ to the conclusion that the rent was not paid and the plea that it was being withheld under an agreement was an afterthought and not true. The High Court and the Rent Control Tribunal have agreed with this view of the Rent Controller and the conclusion appears to us to be sound. Once such a conclusion is reached, it is quite manifest that the order was made after affording an opportunity tlJ the appellant to be heard. No doubt, the appellant is entitled to lead oral evidence in regard to the agreement he alleges, but for that he will have an opportunity hereafter. At the moment, he is being asked to deposit the arrears in court, which admittedly are outstanding.

Mr. Desai next contended that the notice under s. 46(5A) amounted to a garnishee order and the appellant could not, while the notice stood, make any payment without incurring personal liability. There was no question of a personal liability because the Rent Controller had stated in his order that the amount would not be paid to :myone till the clearance certificate was obtained from the Incometax Department.

The Rent Controller had informed the Income-tax authorities and the appellant ran no risk in depositing the arrears of rent in the circumstances.

It was contended that the notice under s. 46(5AJ amounted to an attachment of the rent in the hands of the appellant and reference was made to the provisions of s. 46 sub-s SA para 5. The argument overlooks the next para which provides:

"'Vhere a person to whom a notice under this subsection is sent objects to it on the ground that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee, then, nothing contained in this section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, to the Income-tax Officer."

If there was an agreement between the parties and Kirori Mal was '"debted for such a. large amount, th~ appellant could have objected on the ground that he did not hold any money for or on account of the assessee and then he would not have been required to pay any sum to the Income-tax Officer. The appellant did nothing in the matter except to deny the payment to everyone.

He paid nothing to the Income-tax Officer, declined to deposit the money before the Rent Controller and refused to recognise the <lemands by the Receiver and his landlord. In other words, he was trying to take full advantage of the law, when he could have informed the Income-tax Officer about his own position and paid the money to the Rent Controller subject to its being paid to the Income-tax Department.

Reference was made in this connection to a decision of the Calcutta High Court reported in Nalinakhya Bysack and another v. Shyam Sunder Halder and others(') in which Harries C.J. observed that before making an orde! for the deposit of the rent, a full enquirv should be made.

That was a case in which the tenant had pleaded that there was an agreement between him and the landlord that any amount spent on repairs would be set off against the rent.

Harries C.J. held that without ascertaining the

(1) A.I.R. (1952) Cal. 198.

Y. N. J' asudeva

Kirorimal Luhariw•la

Hldayatullah J.

V. N. Vasudeva

Kirorimal Luharlwala

Hldayatullah J.

January, 13

truth of the plea that a large sum had been spent on repairs, an order to deposit the entire arrears of rent ought not tohave been made. It is quite clear that the facts there were entirely different. Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancy could not be calculated without advertence to every term of the agreement of tenancy.

Here the special agreement which is pleaded is outside the tenancy agreement and the allegation about the special agreement has been held to be an after-thought and false.

It is therefore diffici1\t to apply the ruling to the present circumstances.

The appeal is wholly devoid of merit and it is dismissed with costs.

By the consent of parties, a period of two months from the date of hearing (20-12-1963) was granted to the appellant to deposit the arrears of rnt from 1st April, 1958, in the Court of the Rent Controller.

Appeal dismissed ..

SURAJ RATAN THIRANI & ORS.

THE AZAMABAD TEA CO. & ORS.

(B. P. SINHA, C.J., J. C. SHAH AND N. RAJAGOPALA

AYYANGAR JJ.)

Code of Civil Procedure (Act V of 1908), O. IX, r. 9-Scope oflrow11 Grants Act, s. 3-Lease by Government-Effect of-Applica .. bility of s. 41 of Transfer of Property Act (IV of 1882).

The property covered by the Tea Estate was granted by the Govern ment by way of lease in 1898 for 30 years.

In 1913 it was purchased' by Azam Ali. When he died in 1917, he left behind 8 sons, 9 daughters and 3 widows. The name of Ismail, his el(iest son. was entered in the official records as next in succession.

Ismail borrowed considerable sums from National Agency Co. Ltd., and for securing the same, depo- sited the title deeds of the Tea Estate on the footing that he was its full owner.

As the amonnt under the mortgage was not paid, a suitr was filed for realisation of the amount by sale of mortgage property ..

s. 304

s. 304

Hidayatul

s. 34

s. 34

N.VASUDEVA

SETH KIRORIMAL LUHARIW ALA

C. SHAH JJ.

Delhi Rent Control Act, 1958

Income-tax Act

V. N. Vllllldeva

s. 46(5A)

Indian Income-tax Act

Delhi Rent Control Act, 1958

s. 15(1)

Nalinakhya Bysack

s. 46(5A)

Income-tax Act

S. T. Desai

B. Dadachanji

C. Mathur

Ravin- •er Narain

H. N. Sanyal

B. P.

Maheshwari

HIDAYATULLAH

s. 15

Delhi Rent Control Act, 1958

1st July; 1957

Delhi

New Delhi

Seth Kirori Mal Luhariwala

July 28, 1957

July 1, 1957

Seth Kirori Mal

October 31, 1957

s. 46(5A)

Income-tax Act

September 29, 1957

Seth Kirori Mal

Kirori Mal

Y. N. Va.rrulna

Kirorimal Luharilvala

Hidayatullah

Kirorimal Luhariwala

October 16, 1957

Calcutta

May I, 1958

Chakravarti

July 8, 19 5 8

July 19, 1958

1st October, 1957

31st March, 1958

September 5. 1959

September 14, 1959

February 4, 1959

July 5, 1960

November 25, 1960

High Court at Calcutta

December 19, 1960

December 21, l 960

V. N. Vasudeva

Kirorimal Luharlwala

V. N. V asudeva

January 4, 1961

Seth Kirori Mal

s. 14

s. 46( SA)

Income-tax Act

May 17, 1961

July 22, 1961

March 31,

1958

Income-tax Act, 1922

High Court of Punjab

s. 15

April l, 1958

October 15, 1957

Kirori

Jf. N. Jf a.rudeva

Hidoyatullah J.

Mal

S. T. Desai

s. 15

s. 15

Desai

Section 15

Section 15

section 14

V. N. Vasud.va

Kirorimal Luhariwaltl

s. 46(5A)

Calcutta High Court

Harries

Y. N. J' asudeva

Kirorimal Luhariw•la

Hldayatullah

V. N. Vasudeva

Kirorimal Luharlwala

SURAJ RATAN THIRANI

AZAMABAD TEA CO

B. P. SINHA

J. C. SHAH

N. RAJAGOPALA

AYYANGAR

Code of Civil Procedure

s. 3

s. 41

Transfer of Property Act

Azam Ali

Ismail

National Agency Co. Ltd.