1. Suit for ejectment — Application for deposit of rent under Section 13(5), Delhi and Ajmer Rent Control Act, 1952 — Default in payment — Striking out of tenant's defence. (Para 1 , 4 , 6 )
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1963 Supreme(SC) 303
SUPREME COURT OF INDIA
K.C.Das Gupta : N.Rajagopala Ayyangar : P.B.Gajendragadkar
V.K.Verma
Versus
Radhey Shyam
Case No. : 1037 of 1963
Date of Decision : 12/17/63
Advocates Appeared: Goswami M.V. : Jain K.K. : Kapur S.K. : Khanna B.L. : Maheshwari B.P. : Phatak G.S.
Advocates:
B.L.KHANNA, B.P.MAHESHVARI, G.S.PHATAK, K.K.JAIN, M.V.GOSWAMY, S.K.KAPOOR
B.L.KHANNA, B.P.MAHESHVARI, G.S.PHATAK, K.K.JAIN, M.V.GOSWAMY, S.K.KAPOOR
When a new Act modifies a mandatory provision of a repealed Act into a discretionary one and requires courts to 'have regard' to the new provisions in pending suits, the discretionary power must be applied. Failure to do so renders the trial not 'according to law'.
Headnote:(A) Delhi and Ajmer Rent Control Act, 1952 - Section 13(5) and Section 35 - Act of 1958 - Section 57 and Section 15(7) - Ejectment suit - Striking out of defense for default in payment of rent - Mandatory vs. Discretionary power - Under the 1952 Act, the court was mandated to strike out the defense upon failure of the tenant to deposit rent, whereas the 1958 Act modified this to a discretionary power, stating the Controller "may order the defence against eviction to be struck out" (Paras 11, 12). Section 57 of the 1958 Act requires courts to have regard to the provisions of the new Act in pending eviction proceedings, which means that where the new Act has modified or clarified previous provisions, those modifications should be applied (Para 10).
(B) Revisional Jurisdiction - Scope of "according to law" - The phrase "according to law" in the context of revisional powers refers to the decision as a whole and not merely errors of law or fact simpliciter. Where the law requires a court to have regard to certain provisions and the court fails to do so, the trial is not in accordance with law, justifying interference by the High Court (Paras 15, 16).
Facts of the case:
In a suit for ejectment, the trial court ordered the tenant to deposit arrears and monthly rent. The tenant defaulted on the rent for two months, leading the trial court to strike out the tenant's defense. This order was upheld by the appellate court, which held that the court had no discretion to extend the time for payment or condone the default under the 1952 Act. A subsequent petition for revision was dismissed by the High Court.
Findings of Court:
The court found that the 1958 Act introduced a discretionary power to strike out the defense, replacing the mandatory requirement of the 1952 Act. Under Section 57 of the 1958 Act, the lower courts were duty-bound to apply this modification to the pending suit. Since the tenant had eventually paid the rent, the court would have likely exercised its discretion in favor of the tenant had the correct law been applied.
Issues: Whether the lower courts erred in applying the mandatory provision of the 1952 Act instead of the discretionary provision of the 1958 Act, and whether such an omission constitutes a failure to decide the case "according to law" under the revisional jurisdiction of the High Court.
Ratio Decidendi: The phrase "shall have regard to the provisions of this Act" in Section 57 of the 1958 Act implies that modifications and clarifications in the new Act must be applied to pending suits. The change from "shall order" to "may order" regarding the striking out of a defense is a deliberate modification in favor of the tenant. Failure to perform this statutory duty renders the trial not in accordance with law, warranting revisional interference.
Result: Appeal allowed, set aside the order passed by the courts below and order that the plaintiffs application for striking out the tenants defence against ejectment be rejected.
Legal Category Hierarchy
Table of Contents
2. Whether the court was mandated to strike out the defence under the 1952 Act or possessed discretion under the 1958 Act per Section 57. (Para 5 , 10 )
3. The transition from mandatory language in the 1952 Act to discretionary language in the 1958 Act constitutes a modification granting the court discretionary power. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 )
4. Where a subsequent Act modifies a mandatory provision into a discretionary one, courts must apply the modified provision to pending proceedings as per statutory mandates. (Para 10 , 13 )
5. Appeal allowed — Order striking out the tenant's defence set aside — Application for striking out defence rejected. (Para 18 )
6. What is the effect of Section 57 of the 1958 Act on pending proceedings under the 1952 Act?
Pending suits for eviction under the 1952 Act are disposed of according to its provisions, but the court must have regard to the 1958 Act, meaning any modifications or clarifications in the new Act should be applied. (Para 10 )
7. How does the 1958 Act modify the rule regarding striking out a tenant's defence for rent default?
Under Section 13(5) of the 1952 Act, the court was mandated to strike out the defence upon default. Under Section 15(7) of the 1958 Act, the Controller has the discretion to order the defence to be struck out. (Para 11 , 12 )
8. What is the scope of the High Court's revisional powers under Section 35 of the Delhi and Ajmer Rent Control Act, 1952?
The High Court may interfere if a decision is not according to law. A trial is not according to law if the court fails to perform a statutory duty, such as having regard to specific provisions of a subsequent Act. (Para 15 , 16 )
9. Does the failure of counsel to point out a legal provision excuse a court's failure to apply it?
No. While courts often rely on counsel's submissions, the omission of counsel does not absolve a court from its duty to follow clear provisions of law. (Para 17 )
K.C.DAS GUPTA. J.
(1) IN a suit for ejectment instituted on 8/09/1958 the plaintiff who is the respondent before us now made an application under S. 13 (5) of the Delhi and Ajmer Rent Control Act. 1952 (Act No. XXXVIII of 1952). He prayed for order to be made on defendant tenant to deposit at the arrears of rent and duture monthly rent in accordance with law by the 15th of the following month. The arrears of rent were claimed to be Rs. 722/7/ upto the 30/06/1960. The original rent was stated to be Rs. 64/8.00 and with effect from 1/08/1959 the rent was claimed at Rs. 70.95 np.
(2) THIS application was resisted by the tenant who in his reply dated 1/08/1960 stated that the rate of rent had continued to be at Rs. 64-8-0 and only Rs. 516.00 was due at the rate of Rs. 64/8.00 as arrears upto 30/06/1960. He added that he was prepared to deposit it.
(3) THE Subordinate Judge 1st Class, Delhi, passed orders on the application on 1/08/1960. The relevant portion of the order ran thus :
"AS regards the application under S. 13(5) of the Rent. Control Act the defendant has no objection to deposit the arrears of rent and future rent month by month at the rate of Rs. 64/8.00 per month. It is clear that under S. 13(5) an order can only be passed at the rate at which the rent was being last paid and no increase can be taken into consideration. I order accordingly."
(4) ON 13/12/1960 the plaintiff applied to the Sub-Judge staling that the de tendants had defaulted in the deposit of rent for the month of September 1960 which was due to be deposited by the 15/10/1960 and also rent for the month of October 1960 which was to be deposited by the 15/11/1960. He prayed that the defence of the defendant against ejectment should therefore be struck out.
(5) CONTESTING this application the de tendant pleaded that no valid order has been made under S. 13 (5) and in any case no de fault had been made by him.
(6) THE learned Subordinate Judge rejected both these pleas and had held that there had been default in complying with the order made under S. 13 (5) and ordered the defence to be struck off.
(7) AGAINST this order the tenant appealed. The court of Appeal (the Senior Sub-Judge, Delhi) agreed with the Trial Judge that a valid order had been made under S. 13 (5) and that the tenant had defaulted in making payments in accordance with the order. The court also rejected the tenants contention that the Trial Judge had a discretion in the matter and should have exercised that discretion in favour of the tenant by extending the time for payment of the rent. Relying on a decision of the Punjab High court in Kanahiya Lal Balkishan Das v. Om Prakash Sharma . Civil Revn. No. 583 of 1958 D/23/10/1962 (Punj) the learned Senior Sub-Judge held that the court could not in any circumstances extend the time for payment fixed in the order under S. 13(5) and could not condone the default. On this view he dismissed the appeal.
(8) THE tenant then approached the High court of Punjab with a petition under S. 35 of the Delhi and Ajmer Rent Control Act, 1952. One of the grounds taken before the High court was that the appellate court had ingnored S. 57 of the Act of 1958. The High court however dismissed the application summarily.
(9) THE present appeal has been filed against the High courts order after obtaining special leave of this court.
(10) THE main contention urged in support of the appeal is that if the appellate court had taken into consideration S. 57 of the 1958 Act it might have rejected the planintiffs prayer for striking out the defences. Section 57 of the 1958 Act provides in its second subsection that in spite of the repeal of 1952 Act all suits and proceedings pending under that Act would be disposed of in accordance with its own provisions but subject to the provisa that "in any such suit or proceeding for fixation of standard rent or for the eviction of a tenant from any premises to which S, 5
