1976 Supreme(SC) 483

SUPREME COURT OF INDIA
Y.V. CHANDRACHUD, P.K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.
Gyan Chand, Appellant
Versus
Kunjbeharilal and others, Respondents.
Civil Appeal No. 1743 of 1975,
D/- 6-12-1976.
Advocates appeared
Mr. S. N. Jain, Advocate, for Appellant; M/s. C. Agrawala and V. J. Francis, Advocates, for Respondents Nos. 1 and 2.

Headnote:

Rule 1 (2) of Order XLI - Civil Procedure Code - SC Rules - Order XVI - Rule 11 - Rajasthan Premises Act 1950 - Section 13A – Constitution of India, 1950 - Article 136 – Tenant - Landlord for eviction - Ground of non-payment of rent - Special provisions relating to pending and other matters: Not-withstanding anything to the contrary in this Act as it existed before the commencement of the Ordinance or in any other law - No court shall in any proceeding pending on the date of commencement of the amending Ordinance pass any decree in favor of a landlord for eviction of a tenant on the ground of non-payment of rent if tenant applies under clause (b) and pays to the landlord or deposits in court within such time such aggregate of the amount of rent in arrears interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause - In every such proceeding, the court shall on application of the tenant made within thirty days from date of commencement of the amending ordinance notwithstanding any order to the contrary determine amount of rent in arrears up to date of the date of order as also amount of interest thereon at six per cent per annum and costs of suit allowable to landlord and direct the tenant to pay the amount so determined within such time not exceeding ninety days as may be fixed by the court and on such payment being made within the a time fixed as aforesaid proceeding shall be disposed of as if the tenant had not committed any default - Provisions of clauses (a) and (b) shall mutatis mutandis apply to all appeals or applications for revision preferred or made after commencement of amending Ordinance against decrees for eviction passed before such commencement with variation that in clause (b) for expression from date of commencement of amending Ordinance expression from date of presentation of memorandum of appeal or application for revision shall be substituted – Held, It was suggested that application for special leave to appeal may be treated as the memorandum of appeal as referred to in clause (c) of Section 13A - It is however not possible to accept this contention because the constituents and ingredients of an application for special leave to appeal are quite different from those of a memorandum of appeal preferred to an appellate Court under O. XLI Rule 1 (2) of the Code of Civil Procedure. Under O. XVI R. 4 of the SC Rules, 1966 petition for special leave is to contain only the necessary facts and not the grounds - It is true R. 11 of O. XVI of the SC Rules provides the petition for special leave would be treated as a petition of appeal after the special leave is granted but that also cannot be equated with a memorandum of appeal as contemplated by clause (c) of Section 13A of Act - In contra-distinction to the provisions of the SC Rules it would appear that O. XLI Rule 1(2) of Code of Civil Procedure runs - It would thus appear that provisions of Rule 1 (2) of Order XLI Code of Civil Procedure require that the memorandum of appeal has to set forth under distinct heads grounds of objections to the decree appealed from - No such requirement is to be found in SC Rules either for an application for special leave to appeal or in the petition of appeal which is required to be filed if certificate by High Court is granted - Legislature must be presumed to be aware of the difference between an application for special leave to appeal and a memorandum of appeal - If the intention was to extend the benefit of Section 13A even to appeals before the SC then apart from the word memorandum of appeal words application for special leave to SC should have been mentioned - Fact that clause (c) of Section 13A merely mentions the words from date of presentation of memorandum of appeal or application for revision clearly indicates that the remedies contemplated by Act are the remedies of appeal and revision as provided for by Section 22 of Act - In fact as already pointed out benefit conferred by Section 13A of Act does not extend even to the execution proceedings and in these circumstances it cannot be assumed that it would have applied to a Court which is beyond the frontiers of the State and to a remedy which has been provided not by the State Legislature but by the Constitution itself - Appeal dismissed