RAVI KHANDELWAL versus M/S. TALUKA STORES on 11 July 2023

1. Leave granted.

GProcedural History:

2. The respondent is the tenant of a shop situated at Plot E-2,Kamani Mansion, Paanch Batti, MI Road, Jaipur, with the appellant asthe landlord. The appellant purchased the property from its erstwhileowner, M/s Jaipur Metal Electric Co., on 30.01.1985. At the time, theHtenanted premises were already under the tenancy of the respondent.

3. The appellant filed a suit for eviction on grounds of bona fidenecessity before the Additional Civil Judge-I, Jaipur, on 21.05.1985. Thesuit was dismissed on 30.10.2002, inter alia, on a finding that the plaintwas not laid in accordance with Section 14(3) of the Rajasthan Premises(Control of Rent and Eviction) Act, 1950 (hereinafter referred to as ‘thesaid Act’), which proscribed the filing of a suit for eviction within fiveyears from the date on which the premises were let out to the tenant.The Trial Court found that the premises were leased only on 08.06.1982by the predecessor in interest of the appellant.

4. The appellant thereafter succeeded in the first appeal beforethe Additional District Judge, Jaipur, in terms of the judgment dated18.03.2004. This was based on a stated admission of the respondentthat he had initially leased the shop from one Udai Lal in 1958 and, thus,the suit could not be said to be hit by the restriction under Section 14(3)of the said Act. The Court disagreed with the respondent’s claim thatthe premises had been leased on 08.06.1982, finding that the originallease deed dated 08.06.1982 had not even been adduced before the trialcourt.

5. On the second appeal being preferred by the respondent, learnedSingle Judge of the High Court framed a preliminary question ofmaintainability on 04.10.2018.[1] This was on account of what was statedto be conflicting views on the interpretation of Section 14(3) of the saidAct by Coordinate Benches of the High Court. Thus, the Single Judgereferred the matter to a Larger Bench. The question of law framed wasas under:

“Whether the limitation of five years specified in Section 14(3)of the Rajasthan Premises (Control of Rent and Eviction) Act,1950 bars the institution of the suit itself or whether it hasonly the consideration of the suit and passing of a decreetherein?” (sic).

6. The aforesaid question of law is answered by the impugnedjudgment dated 20.04.2020. The Division Bench of the High Court notedthe divergent views on the interpretation of Section 14(3) of the saidAct. The first view was that Section 14(3) of the said Act created a 1 Although Section 22 of the Act proscribes the filing of a second appeal from a decree,it does not prohibit second appeals from suits for eviction filed before an ordinarycourt of competent jurisdiction. This was elaborated in Gyan Chand v. Kunjbeharilal& Ors., (1977) 3 SCC 317.

A

B

C

D

E

F

G

H

Acomplete prohibition on filing of a suit within five years of the tenancy.This was endorsed by the Court in Ashok Kumar v. Suresh Chand &Ors.[2]and Kahtoon Begum (deceased) through LRs v. Bhagwan Das& Ors.[3]. The second view reflected in Late Mahadev & Ors. v. BabuLal & Ors.[4] and M/s. Vadhumal Kanhaiyalal & Ors. v. Hemchand& Ors.[5]was that irregularity of a petition filed within five years of tenancyBwould get cured by the decree of eviction being made after the expiry ofsuch period. The Division Bench agreed with the former interpretation,finding that there was no ambiguity in the language of Section 14(3) ofthe said Act, which created a complete bar to the filing of the suit. Theprovision is as under:C

“14. Restriction on eviction: -

(3) Notwithstanding anything contained in any law orcontract, no suit for eviction from the premises let out forcommercial or business purposes shall lie against a tenanton the ground set forth in clause (h) of sub-section (1) ofDsection 13 before the expiry of five years from the date thepremises were let out to the tenant.”

Appellant’s Contention before this Court:

7. It is canvassed by the appellant that a literal interpretation ofESection 14(3) of the said Act would lead to absurdity. Instead, a purposiveinterpretation of the rule should be applied. The intent behind Section14(3) of the said Act is to grant protection to the tenant against evictionfor five years. However, a literal interpretation of the rule in the presentcase would amount to granting protection to the respondent after 38years of filing of the suit in 1985.F

8. To buttress his case, support was taken from a judgment of thisCourt in B. Banerjee v. Smt. Anita Pan[6], where a similar clause underthe West Bengal Premises Tenancy Act, 1956 was considered. In thesaid case, the clause proscribed the filing of a suit for eviction for threeyears from the date on which the landlord acquired an interest in theGpremises. This Court had opined that the spirit of the protection is fulfilled 2 RLW 1996 (1) Raj. 380.3 RLW 2004 (1) Raj. 502.4 (2006) 4 RDD 1868 Raj.5 WLC (Raj.) UC 2007 (270).H6 (1975) 1 SCC 166.

with the passage of three years and filing a fresh suit would lead tounnecessary multiplicity of litigation. The relevant provision is as under:

“13. (3A) Where a landlord has acquired his interest in thepremises by transfer, no suit for the recovery of possession ofthe premises on any of the grounds mentioned in clause (f) orclause (ff) of sub-section (1) shall be instituted by the landlordbefore the expiration of a period of three years from the dateof his acquisition of such interest:

Provided that a suit for the recovery of possession ofthe premises may be instituted on the ground mentioned inclause (f) of sub-section (1) before the expiration of the saidperiod of three years if the Controller, on the application ofthe landlord and after giving the tenant an opportunity ofbeing heard, permits, by order, the institution of the suit onthe ground that the building or re-building, or the additionsor alterations, as the case may be, are necessary to make thepremises safe for human habitation.”

9. It may be noticed that there is a slight difference in Section14(3) of the said Act, which uses the term ‘shall lie’ as against theaforesaid statutory provision where the expression used is ‘shall beinstituted’. Further, the relevant provision in B. Banerjee’s[7]case wasintroduced by amendment retrospectively.

10. Appellant contended that ‘shall lie’, which is the expressionused in Section 14(3) of the said Act, implies that the suit would liedefective for five years and thereafter stand cured. In this regard, theappellant relied on Martin & Harris Ltd. v. VIth Additional Distt.Judge and Ors.[8], where it was noticed in the context of the U.P. UrbanBuildings (Regulation of Letting, Rent and Eviction) Act, 1972, that thebar was only on deciding the suit and not filing it. A suit could thus beentertained after expiry of three years. In Vithalbhai (P) Ltd. v. UnionBank of India,[9]it was opined that a premature suit does not affect thejurisdiction of the Court, and the suit can be entertained after maturity,particularly if it does not prejudice the other side.

7 (supra).

8 (1998) 1 SCC 732.

9 (2005) 4 SCC 315.

AB

C

D

E

F

G

H

11. It was stated that the observations in R. Rajagopal Reddy(Dead) by LRs and Others v. Padmini Chandrasekharan (Dead) byLRs[10]were not applicable, as the said case dealt with Section 4(1) ofthe Benami Transactions (Prohibition) Act, 1988, which provided for anabsolute bar on filing of the suit unlike Section 14(3) of the said Act.

A

BRespondent’s Contentions before this Court:

12. On behalf of the respondent, it was urged that the word ‘lie’used in Section 14(3) of the said Act had not been defined. The dictionarymeaning of the expression would be ‘For an action, claim appeal etc.to subsist; be maintainable or admissible’, as enunciated in R.CRajagopal’s[11] case. Since the suit itself was not maintainable, no decreecan be passed.

13. It was also urged that if the intention of the legislature wasthat the eviction decree can be passed after expiry of five years, thenSection 14(3) of the said Act would have been worded differently.

D

14. The judgment in B. Banerjee’s[12] case was sought to bedistinguished, as it pertained to the constitutional validity of a retrospectiveamendment introduced in Section 13(3A) of the West Bengal PremisesTenancy Act, 1956, and whether the said bar could be applied to pendinglitigation.

EOur Consideration:

15. In order to analyze the expression used in Section 14(3) of thesaid Act, we think it is appropriate to consider the objective of thisprovision. This provision is for the protection of a tenant. The objectiveis that from the date a tenant acquires a right, he must have a right toFcontinue in the premises for a period of five years, subject to his fulfillmentof the terms and conditions of the lease.

16. When we turn to the facts of the present case, what stares usin the face is that while the suit may have been defectively institutedwithin five years of the tenancy, more than 38 years have now elapsedGsince the suit was filed. We opine that this passage of time beyond theperiod of five years would wash away the initial impediment against thesuit. We cannot lose sight of the fact that we stare at a factual scenario 10 1995 (2) SCC 630.

11 (supra).

H12 (supra).

where the vagaries of litigation have prolonged the suit proceedings fora period of 38 years. The plea of the respondent is that the appellantshould be asked to file a fresh suit – perhaps their confidence stemsfrom the fact that if the tenant has already been able to prolong theproceedings for 38 years, a similar scenario would again follow. We arenot able to countenance such an interpretation which would defeat thevery purpose of creating an initial restriction on the filing of the suit. Tosay that the landlord should now, once again, restart the proceedingsbecause the initial period of five years had not elapsed, even as now 38years have elapsed, would be a travesty of justice.

17. Whether the expression used is ‘shall lie’ or ‘be entertained’would really make no difference. The objective is to create animpediment in the institution and trial of the suit for a period specifiedunder the said Act. We are in agreement with the view adopted in B.Banerjee’s[13] case that the spirit of protection is fulfilled with the passageof the prescribed time period, and the filing of a fresh suit would lead tounnecessary multiplicity of litigation. No doubt B. Banerjee’s[14] casedealt with the constitutional validity of a retrospective amendment andwhether the bar could be applied to pending litigation, but that itself wouldnot dilute its ratio.

18. We are thus of the view that the objective of Section 14(3) ofthe said Act, being the safeguarding of the tenant for five years, wassubserved by the proceedings going on for the requisite period of timeand beyond it within which the tenant could not have been evicted. Asnoticed, in fact the proceedings have gone on for 38 years, which itselfis extraordinary.

19. We may also take note of a subsequent development which isthat the said Act itself has been abrogated in the year 2001, with a newstatute coming into force, i.e. The Rajasthan Rent Control Act, 2001,which does not create any similar bar.

20. We thus unhesitatingly allow the appeal and set aside thejudgment of the High Court.

21. In view of the divergence of opinion; a preliminary question oflaw had been raised in the second appeal before the High Court. Thishas now been answered in favour of the appellant. We are now faced 13 (supra).

14 (supra).

AB

C

D

E

F

G

H

Awith the dilemma where the preliminary issue has been answered, andthe matter is required to be remitted to the learned single Judge to beconsidered on merits. Conventional approach may require so. However,we cannot lose sight of the fact that the second appeal is on a questionof law. A preliminary issue was framed which was opined in favour ofthe respondent, and this we have now reversed. The first appellate courtBfound in favour of the appellant so far as the bona fide requirement isconcerned. We, thus, see no real question of law arising in the presentcase which would be determined in the second appeal were we to remitthe matter back, particularly as the real question relating to theinterpretation of the law has been discussed by us. We also believe thatCso much time having passed, it would be a mockery of justice to makethe parties to go through another round in the second appeal. Thus, weare of the view that a quietus should be put to this prolonged disputespanning 38 years, on something as simple as tenancy issue and as towhen the proceedings commenced. We are also armed with theextraordinary power under Article 142 of the Constitution of India to doDabsolute justice inter se the parties.

22. We are thus of the view that the decree of eviction passed bythe first appellate court dated 18.3.2004 should be affirmed and therespondent be asked to hand over vacant and physical possession of thetenanted premises on or before 30.09.2023, and to call upon the respondentEto file an undertaking in order to avail of the benefit for further occupationtill 30.9.2023 within two weeks.

23. The appeal is accordingly allowed leaving the parties to beartheir own costs.

F

Divya Pandey

(Assisted by : Roopanshi Virang, LCRA)

Appeal allowed.

G

H