judgement:
Civil Appeal No. 1172 of 1979.
Appeal by Special Leave from the Judgment and order dated 1 2 1979 of the Madras High Court in O.S.A. No. 75/77.
878 G. Swaminathan, A.C. Muthana, M. Subramaniam, K. Rajendra Chowdhary and N.N. Sivam for the Appellant.
P. Chidambaram, Shakeel Ahmed, M.N. Krishnamani and M.A. Malik for Respondent No. 1.
S.V. Gupte and V. N. Ganpule for Respondent 2, 4 6.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The question involved in this case is whether a suit for ejectment filed in respect of any non residential building or part thereof pending before any court on the date on which the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Act No. XVIII of 1960) (hereinafter referred to as 'the principal Act ') was amended by the Tamil Nadu Buildings (Lease and Rent Control) Amendment Act, 1964 (Act No. XI of 1964) (hereinafter referred to as 'the Amending Act ') could have been proceeded with after that date.
It arises in the following circumstances: Haji Mohamed Hussain Sait, the father of the plaintiff, Haji Abdulla Sait was the owner of a building situated in the city of Madras.
He leased it out in favour of the defendant, K. Seetharama Rao under a lease deed dated July 8, 1940 for the purpose of Running a restaurant known as 'Modern Cafe ' in it for a period of three years with effect from July 15, 1940 on a monthly rent of Rs. 950/ .
The agreed h period of lease expired in July, 1943 but the defendant continued to be in possession of the building as a tenant holding over.
On the coming into force of the Madras Non residential Buildings Rent Control order in 1946, the defendant became a statutory tenant of the said building and fair rent in respect of it was fixed under that order in the year 1946 at Rs. 1,680/ per month.
The aforesaid order was replaced by the Madras Buildings (Lease and Rent Control) Act.
1949 which was also applicable to the said building.
On the death of the landlord Haji Mohamed Hussain Sait in 1955, under a partition amongst his heirs the plaintiff became the owner of the building.
The protection which the defendant was enjoying under the Act of 1949 came to an end on the passing of the principal Act by virtue of section 35 thereof which repealed the Act of 1949 and section 30(iii) thereof which provided that nothing contained in the principal Act was applicable to any non residential building, the rental value of which on the date of the commencement of the principal Act as entered in the property tax assessment book of the municipal council, district board, panchayat or panchayat union council or the Corporation of Madras exceeded Rs. 400/ per mensem.
The defendant, however, continued to be in possession of the building by paying the rent every month.
879 The plaintiff issued a notice to the defendant terminating the tenancy with effect from the expiry of February 29, 1964 and as the building was not governed by the principal Act at that point of time, he instituted a suit in Civil Suit No. 730 of 1964 on the file of the City Civil Court, Madras on March 2, 1964 for eviction and for damages at the rate of Rs. 6000/ per month.
The defendant filed his written statement on May 2, 1964 before the City ' Civil Court.
On June 10, 1964, the Amending Act came into force.
The relevant part of it is reproduced below: "2.
Amendment of section 30, Madras Act XVlII of 1960.
In section 30 of the Madras Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the principal Act) (i) in clause (ii) the word "or" occurring at the end shall be omitted; (ii) clause (iii) shall be omitted; (iii) in the Explanation, for the words, brackets and figures "clauses (ii) and (iii) ", the word, brackets and figures "clause (ii)" shall be substituted.
Certain pending proceedings to abate.
Every proceeding in respect of any non residential building or part thereof pending before any court or other authority or officer on the date of the publication of this Act in the Fort St. George Gazette and instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 of the principal Act, shall abate in so far as the proceeding relates to such building or part.
All rights and privileges which may have accrued before such date to any landlord in respect of any non residential building or part thereof by virtue of clause (iii) of section 30 of the principal Act, shall cease and determine and shall not be enforceable: Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date mentioned in this section.
" The statement of objects and reasons appended to the Bill which ultimately became the Amending Act read as follows: "The Madras Buildings (Lease and Rent Control) Act, 1960 (Madras Act 18 of 1960), relates to the regulation of 880 the letting of residential and non residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the State of Madras.
Under section 30 of the said Act, certain buildings are exempted from the provisions of the said Act.
Any non residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees is one such building or part is exempted under the said section 30.
It has been brought to the notice of the Government that the landlords of such non residential buildings, taking advantage of the exemption, referred to above, demand exorbitant rents from the tenants of such buildings, who mostly belong to the business community, and threaten to evict the tenants when the latter do not concede to the demands for such rents.
In order to provide relief to such tenants and to ensure that the interests of trade and industries do not suffer by demands of landlords for unreasonable and exorbitant rents.
the Government consider that the exemption now available to any non residential building or part thereof fetching a monthly rent exceeding four hundred rupees should be withdrawn.
At the same time, the Government consider that there is no need to take away the exemption available at present to any residential building or part thereof fetching a monthly rent exceeding Rs. 250/ .
The Bill seeks to achieve the above object.
" The result of the amendment was that the buildings which had been exempted from the operation of the principal Act under clause (iii) of section 30 came within the scope of the principal Act and the relationship between landlords and tenants of such buildings was to be regulated thereafter in accordance with the provisions of the principal Act.
Apparently in order to give protection to tenants of such buildings against whom proceedings for eviction had been instituted in civil courts, section 3 of the Amending Act provided that such proceedings should be treated as having abated.
The proviso to section 3 of the Amending Act however provided that nothing contained in that section should be deemed to invalidate any suit or proceeding in which the decree or order passed had been executed or satisfied in full before the date mentioned in that section, the said date being, June 10, 1964.
This by necessary implication, section 3 of the Amending Act was applicable even to the case of a building in respect of which a decree for eviction had been passed but had not been executed or satisfied in full before June 10, 1964.
In view of the above provision, the City 881 Civil Court dismissed the suit as having abated by its order dated December 4, 1964.
The plaintiff filed two applications before the City Civil Court in March, 1965 one under order 9 Rule 9 of the Code of Civil Procedure to set aside the order dated December 4, 1964 dismissing the suit as having abated and another under section 5 of the Limitation Act for condoning delay in filing the application, under order 9, Rule 9 of the Code of Civil Procedure.
He also filed an appeal in A.S. No. 266 of 1965 on the file of the High Court of Madras against the order of the City Civil Court dated December 4, 1964.
Both the above applications were allowed by the City Civil Court on August 3, 1965.
On August 13, 1965, the defendant filed an additional written statement before the City Civil Court raising the plea that the suit had actually abated by virtue of section 3 of the Amending Act.
He also filed two revision petitions against the order passed by the City Civil Court allowing the two applications on August 3, 1965.
In the meanwhile, on an application made under section 24 of the Code of Civil Procedure by the plaintiff, the suit was withdrawn to the file of the High Court and it was renumbered as C.S. No. 218 of 1965.
It should be mentioned here that owing to the alteration of the pecuniary jurisdiction of the City Civil Court, the suit stood transferred to the file of the High Court on May 1, 1964 itself.
The defendant died on January 15, 1968.
He had made will on January 7. 1968 appointing executors and administrators in respect of his assets and issuing directions regarding the manner in which his assets should be disposed of.
By an order dated July 20, 1970 made by the High Court, defendants Nos. 2 to 10 who had been appointed executors an administrators were impleaded as legal representatives of the defendant (who was shown as defendant No. 1 thereafter).
The two civil revision petitions filed by the defendant! against the order passed on August 3,.1965 by the City Civil Court and the Appeal Suit No. 266 of 1965 filed by the plaintiff against the order of the City Civil Court dated December 4, 1964 were disposed of by a Division Bench of the High Court of Madras by a common order on June 28, 1972, the relevant part or which read as follows: "It is seen from the foregoing dates that at the time of the dismissal of the suit, the lower court had no jurisdiction to deal with suit and in that view the counsel appearing on both sides represent that the order dismissing the suit as having abated may be set aside and the suit may be tried on the original side of this Court.
We accordingly allow the appeal and set aside the order of dismissal of the suit on the ground that the City Civil Court had no jurisdiction to deal 882 with the same on the date of dismissal and direct the suit to be posted on the original side for being dealt with.
" It may be mentioned here that as stated earlier, the suit had already been withdrawn to the file of the High Court under section 24 of the Code of Civil Procedure and had been numbered as Civil Suit No. 218 of 1965.
In July, 1973, the plaintiff sought an amendment of the plaint praying for relief against defendants Nos. 2 to 10 on the ground that after the death of the original defendant No. 1, they were not entitled to continue in possession of the building as 'statutory tenants and the plaintiff was entitled to a decree against them in that very suit.
The above contention was based on the definition of the expression "tenant" in section 2(8) of the principal Act as it stood then.
After the amendment of the plaint, fresh written statements were filed by defendants Nos. 2 to 10 raising several pleas including the pleas which had already been raised in the written statements filed by defendant No. 1 before the City Civil Court.
On the basis of the pleadings, the trial court framed the following issues: "1.
Is the suit maintainable ? 2.
Has the plaintiff given proper notice of termination of the suit premises ? 3.
Does the suit abate by reason of Act XI of 1964 ? 4.
Are not the defendants entitled to protection under the Madras Buildings (Lease and Rent Control) Act, 1960, as amended by Act 23 of 1973 ? 5.
Whether the tenancy came.
to an end upon the death of K. Seethararma Rao ? 6.
Whether the defendants have no legal interest in the premises and consequently liable to be rejected ? 7.
To what reliefs are the parties entitled ? At the conclusion of the trial, the learned Judge held on issue No. 1 that the suit was maintainable, on issue No. 2 that the notice to quit had validly terminated the tenancy, on issue No. 4 that the defendants were not entitled to protection under the Madras Buildings (Lease and Rent Control) Act, 1960; on issue No. S that the tenancy had come to an end even on March 1, 1964 and on issue No. 6 that the defendants had no legal interest in the premises.
He, however, declined to record any finding on issue No. 3 which related to the question whether the suit had abated ar not on June 10, 1964 by virtue of section 3 of ,; the Amending Act.
The learned Judge proceeded to dispose of the suit as if it was a fresh suit instituted after the death of the original 883 defendant No. 1 on January 15, 1968 even though there was no specific issue on the question whether it cd be treated such.
This appears to be so in view of the following observations made by the trial Judge in the course of his judgment: "Under the above circumstances, if the plaintiff files a suit today against the defendants he is entitled to get an executable decree for possession (without the necessity of going to the Rent Control Court) inasmuch as defendants 2 to 10 had never become 'tenants ' under the Act.
Therefore even if the suit filed in.
the City Civil Court is held to have abated, under the peculiar circumstances of this case, I see no reason why I should not treat the suit before me to be a fresh one.
It is to be seen that the application under section 24 of the Code of Civil Procedure for transfer of the suit from City Civil Court to this court was consented by the defendants.
In A.S. No. 266 of 1965, apart from setting aside the order of abatement passed by the City Civil Court, this Court directed that the suit be tried on the original side of this Court.
Even if the City Civil Court had no pecuniary jurisdiction to deal with the matter and record abatement, the defendants could have pressed in A.S. No. 266 of 1965 for an order by this Court that the suit had abated.
It is need less to point out that the order that was under appeal was one by which the City Civil Court held that the suit had abated.
No doubt that was passed without jurisdiction, inasmuch as the pecuniary jurisdiction of that Court had been reduced.
But it is open to this Court to have held in the said appeal itself that the suit had abated.
But the order was that the suit was to be tried on the original side.
The suit had been originally filed in 1964, that is more than 12 years ago.
Under such circumstances, I think it is wholly unnecessary to drive the plaintiff to a fresh suit.
" On the basis of the findings recorded by him, the learned trial Judge passed a decree for possession and damages for use and occupation.
The quantum of damages was directed to be determined under order 20, Rule 12 of the Code of Civil Procedure.
Defendants Nos. 2 to 10 were, however, allowed three years ' time to deliver vacant possession of the premises.
Aggrieved by the decree passed by the trial Court, the plaintiff filed O.S.A. No. 23 of 1977 and defendant No. 2 filed O.S.A 75 of 1977 on the file of the High Court of Madras.
The plaintiff in his appeal questioned the decree of the trial court only to the extent it granted a period of three years to the defendants to deliver possession 884 of the premises.
Defendant No. 2 in his appeal questioned the entire decree.
Both the appeals came up for hearing before a Division Bench of the High Court.
In the course of its judgment, the Division Bench formulated the following points for its consideration: "1.
What was the status of late Seetharama Rao after the termination of the tenancy whether he was a trespasser or a tenant holding over or a tenant at sufferance ? 2.
Did the suit building come within the purview of the Act and did late Seetharama Rao become a tenant as defined in the Act, on the coming into force of the Tamil Nadu Act XI of 1964 ? 3.
Whether the suit instituted by the plaintiff abated in view of section 3 of the Tamil Nadu Act XI of 1964 ? 4.
Whether the "tenancy" came to an end upon the death of Seetharama Rao ? 5.
Whether defendants 2 to 10 are entitled to protection against eviction from the suit property by virtue of the Act as amended by the Tamil Nadu Act 23 of 1973 ?" The Division Bench held that the status of the defendant, Seetharama Rao from March 1, 1964 was that of a trespasser and he was liable to pay profits or damages for use and occupation to the plaintiff; that the defendant, Seetharama Rao was not entitled to the benefit of the principal Act by the coming into force of the Amending Act as the building itself was outside the scope of the principal Act and even if the building was within its scope, he was not a tenant as defined in the principal Act; that section 3 of the Amending Act did not apply to the suit in question and hence it did not abate on June 10, 1964 and that after the death of the defendant, Seetharama Rao, defendants 2 to 10 were not entitled to the protection against eviction under the principal Act as amended by the Tamil Nadu Act No. 23 of 1973.
Accordingly, it dismissed the appeal filed by defendant No. 2.
The appeal filed by the plaintiff was also dismissed as a period of 2.6 years out of the period of three years ' time granted by the trial court had expired by the time the judgment in appeal was delivered.
Aggrieved by the decree passed by the Division Bench, defendants 2 to 4 and 10 have filed the above appeal by special leave in this Court.
The principal contention urged in support of the appeal before us was that the suit having abated on the coming into force of the Amending Act, it was not open to the trial court to treat the proceedings before it as a new suit instituted after the death of the defendant, Seetharama Rao against defendants Nos. 2 to 10 and to pass a decree.
In the 885 instant case, as noticed earlier, the trial court did not decide the question whether the suit abated on the coming into force of the Amending Act.
The Division Bench of the High Court has held that the provisions of section of the Amending Act were not applicable to the suit and, therefore, the question of its abatement did not arise.
The undisputed facts in this case are: (1) Seetharama Rao held the suit property as a lessee before the institution of the suit; (2) that the lease had been terminated by the issue of a notice in accordance with section 106 of the Transfer of Property Act; (3) that a suit for eviction of Seetharama Rao was filed on March 2, 1964 before the City Civil Court, Madras which was competent to try it on the date of its institution; (I) that by virtue of alteration of the pecuniary jurisdiction of the City Civil Court and consequential provisions made in that connection, the suit stood transferred to the file of the original side of the High Court with effect from May 1, 1964 and that the suit was, therefore, deemed to be pending in law on the file of the High Court on June 10, 1964 on which date the Amending Act was published in the official Gazette even though in fact the file was Lying on that date with the City Civil Court.
The other proceedings which have been referred to above in some detail are not relevant for the purpose of deciding the question whether the suit abated on the publication of the Amending Act in the official Gazette.
Section 2 (ii) of the Amending Act repealed clause (iii) of section 30 of the principal Act.
Consequently any non residential building, the rental value of which on the date of the commencement of the principal Act as entered in the property tax assessment book of the municipal council, district Board, panchayat or panchayat union council or the Corporation of Madras, as the case may be exceeded four hundred rupees per mensem was also brought within the scope of the principal Act and the relationship between the landlord and tenant of such building came to be regulated by it with effect from June 10, 1964.
Section 3 of the Amending Act consists of three parts.
Under the first part, it directed that every proceeding in respect of any nonresidential building or part thereof pending before any court or other authority or officer on the date of the publication of the Amending Act in the Fort St. George Gazette and instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 of the principal Act abated in so far as the proceedings related to such building or part.
Under the second part, it provided that all rights and privileges which might have accrued before such date to any landlord in respect of any non residential building or part thereof by virtue of clause (iii) of section 30 of 886 the principal Act would cease and determine and would not be enforceable.
The proviso to section 3 which is the third part of that section provided that nothing contained in section 3 should be deemed to invalidate any suit or proceeding in which the decree or order passed had been executed or satisfied in full before the date mentioned in that section.
On behalf of the plaintiff, three contentions were urged in the appeal before the High Court in support of his case that section 3 of the Amending Act was inapplicable to the present case.
They were (i) that section 3 of the Amending Act had no reference to a suit at all; (ii) that even if it had any reference to a suit, it did not apply to a suit of the present nature and (iii) that even if it applied to a suit of the present nature still on the pleadings of the plaintiff.
the present suit was not affected by the said provision.
The Division Bench rejected the first contention of the plaintiff that section 3 had no reference to a suit at all but it, however, upheld me case of the plaintiff on the basis of the other two contentions.
Relying upon the language of section 10(l) of the principal Act which provided that a tenant was not liable to be evicted whether in execution of a decree or otherwise except in accordance with the provisions of that section or sections 14 to 16 and the decision of the Madras High Court in Theruvath Vittil Muhammadunny vs Melepurakkal Unniri & Anr.
and the decision of this Court in B.V. Patankar & ors vs C.G. Sastry, the Division Bench held that it was settled law that the principal Act itself did not prohibit the filing of a suit by a landlord for recovery of possession of the property from a tenant but only a decree passed in the said suit could not be executed except in accordance with the provisions of the principal Act and if that was the true legal position in respect of the buildings to which the principal Act applied from its commencement ' there was no justification whatever for the Legislature making a contrary provision in respect of non residential buildings to which the principal Act became applicable by virtue of the Amending Act.
The Division Bench, therefore, held that section 3 of the Amending Act was not applicable to the case on hand.
We are of the view that the above conclusion of the Division Bench is erroneous.
It is not for the Court to ask whether there was any justification for the Legislature to make a contrary provision in respect of the suits of the present nature.
It was not the contention of the plaintiff that section 3 of the Amending Act was unconstitutional.
In that situation, the High Court had no option but to apply the provision in question to the case on hand without going 887 into the question whether there was any justification for enacting it.
We are, however.
Of the view that in the circumstances in which the Amending Act came to be enacted, there was every justification for enacting section 3 in order to give protection to tenants against whom suits for eviction had been filed from buildings which were brought within the scope of the principal Act by deleting clause (iii) of section 30 of the principal Act.
The third contention of the plaintiff in support his plea that section 3 of the Amending Act was inapplicable was formulated thus: The provisions of the aforesaid section 3 would apply only when the three conditions viz. (i) that there should be a proceeding in respect of a non residential building or part thereof; (ii) that proceeding should be pending before any court or other authority or officer on the date of the publication of the Amending Act in the Fort St. George Gazette; and (iii) that proceeding should have been instituted on the ground that such building or part thereof was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 of the principal Act, existed.
It was argued that since the present suit did not satisfy the third requirement referred to above as the plaintiff had not referred to clause (iii) of section 30 of the principal Act in the plaint, section 3 of the Amending Act should be held to be inapplicable to it.
The Division Bench upheld the above contention observing that in order to attract section 3 of the Amending Act, there should be an allegation in the plaint that the building in question was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 of the principal Act.
In order to arrive at the above conclusion, it relied upon the decision of the Madras High Court in M/s. Raval & Co vs K. G. Ramachandran & Ors.
and the decision of this Court in P. J. Gupta Co. vs K. Venkatesan Merchant & ors.
The passage in the case of M/s. Raval & Co (supra) on which the Division Bench relied was follows: "It has to be immediately conceded that the wording of this section can by no means be described as happy, or free from any cloud of ambiguity.
It is not very clear how a proceeding could have been instituted 'on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 ', or what is the precise scope of the rights and privileges which may accrue to the landlord, and which are to cease and determine." 888 We do not think that in the context in which section 3 of the Amending Act was enacted, it could be said that it was not possible to identify the proceedings to which that provision referred.
In the case of P. J. Gupta & Co. (supra), the effect of section 3 of the Amending Act is set out as follows: "The obvious result of section 30(iii) of the Act, as it stood before the amendment, was that, if the rental value of a non residential building,, as entered in the property tax book of the Municipality exceeded Rs. 400/ per mensem, a description which applies to the premises under consideration before us the landlord would have no right to proceed against the tenant for eviction under section 10(2) (ii) a) of the Act.
Section 3 of the Amending Act, on the face of it, applies to two kinds of cases.
Its heading is misleading in so far as it suggests that it is meant to apply only to one of these two kinds.
It applies: firstly, to cases in which a proceeding has been instituted "on the ground" that a non residential building "was exempt from the provisions of the principal Act" and is pending; and secondly, to cases where "rights and privileges, which may have accrued before such date to) any landlord in respect of non residential building by virtue of clause (iii) of section 30 of the principal Act" exist.
In the kind of case falling in the first category, the amendment says that the pending proceedings shall abate.
As regards the second kind of case, the amendment says that "the rights and privileges of the landlord shall cease and determine shall not be enforceable." Proceeding further, this Court observed: "It is not necessary, for the purposes of tho case before us, to speculate about the types of cases which may actually fall within the two wings of the obviously inartistically drafted section 3 of the Amending Act.
It is enough for us to conclude, as we are bound to on the language of the provision, that the case before us falls outside it.
" The above observations were made by this Court in a case where a proceeding had been initiated before the City Rent Controller in December, 1964 by a landlord for eviction of his tenant from a non residential building situated in the city of Madras which had been leased at Rs. 600/ per month on the ground that the building had been sub let.
The City Rent Controller ordered the eviction of the tenant.
In appeal, the Court of Small Causes at Madras allowed the 889 tenant 's appeal holding that the tenant had the right under the original lease of August 21, 1944 to sub let, and also because even violation of a clause of the subsequent lease of April 3, 1963, prohibiting subletting, did not entail a forfeiture of tenancy rights under the provisions of the Transfer of Property Act.
Its view was that, in the case of what it described as "a contractual tenancy" the provisions of the Transfer of Property Act applied to the exclusion of the remedies provided by the principal Act so that unless the lease deed itself provided for a termination of tenancy for sub letting in addition to a condition against subletting, the tenancy right itself could not be forfeited or determined by such a breach of the contract of tenancy.
In exercise of its revisional jurisdiction, under section 25 of The principal Act, the High Court of Madras reversed the judgment and order of the Small Cause Court holding that the rights of the landlord and tenant were governed on the date of the application for eviction by section 10(2) (ii) (a) of the principal Act which contained a prohibition against sub letting which involved parting with possession.
On appeal to this Court, the decision of the Madras High Court was affirmed holding that the effect of the amendment was that the landlord acquired a new right to evict a tenant under section 10(2) (ii) a).
This Court held that by virtue of section 3 of the Amending Act, all rights and privileges which might have accrued before the date of publication of the Amending Act in the official Gazette to any landlord in respect of any non residential building or part thereof by reason of clause (iii) of section 30 of the principal Act alone became enforceable.
But the right to seek eviction of the tenant Under section 10(2) (ii) (a) was unaffected even though the sub letting of the building had taken place prior to the enactment of the Amending Act.
From a reading of he above decision, it is obvious that This Court held that the right which the landlord acquired under section 10(2) (ii) (a) to evict the tenant was a now right and was not a pre existing right which could possibly be affected by section 3 of the Amending Act.
It is, however, clear from the observations of this Court extracted above that a proceeding which had been instituted "on the ground" that a non residential building "was exempt from the provisions of the principal Act" by virtue of clause (iii) of section 30 of The principal Act and was pending on the date of publication of the amendment in the official Gazette would abate.
This Court did not, however, go into the question as to what types of cases would fall within the scope of section 3 of the Amending Act.
We are of the view that the identification of such cases depends on the true cons 890 truction of the said provision.
In this case, we are faced with that question.
It is appropriate to refer at this stage to the following passage occurring in Craies on Statute Law (Sixth Edition) at page 99: "In Bratt vs Bratt [1926] 3 Addams 210, 216, Sir John Nicholl M. R. said as follows: "The key to the opening of every law is the reason and spirit of the law; it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.
Hence, to arrive at the true meaning of any particular phrase in a statute, the particular phrase is not to be viewed detached from its context in the statute; it is to be viewed in connection with its whole con text, meaning by this as well the title and preamble as the purview or enacting part of the statute.
" We have already referred to the object with which the Amending Act was passed and that was to give relief against unreasonable evictions and demands for unconscionable rates of rents to tenants of buildings which had been originally exempted from the operation of the principal Act.
It is clear that while doing so the Legislature gave relief also to persons against whom suits had been filed.
WE think that the words "instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue , of clause (iii) of section 30 of the principal Act" should be construed in the context in which they appear as referring to a proceeding which had been instituted in the light of section 30(iii) of the principal Act which granted exemption in respect of the buildings referred to therein from the operation of the principal Act and any other construction would defeat the object of the Amending Act.
lt is seen that in the instant case, the original plaint was filed on the basis that the tenancy had been terminated with effect from the expiry of February 29, 1964.
The plaintiff prayed for eviction of the original defendant and also for a decree for damages for use and occupation at the rate of Rs. 6000/ per month from the date of the plaint till delivery of the vacant possession on the assumption that after the termination of the lease the original defendant No. 1 was not a tenant and was liable to pay damages and not the rent of Rs. 1,680/ per month which was the fair rent fixed in respect of the building in a former proceeding under the rent control law in force then.
The suit in the above form could be filed for the relief referred to above only because of the exemption granted by clause (iii) of section 30 of the principal Act because in the absence of such exemption, no effective decree for ejectment could be passed by the City Civil Court in view of section 891 10 of the principal Act which provided that no tenant could be evicted from a building except in accordance with the provisions of section 10 and section 14 to 16 thereof.
The plaintiff could not also have asked for a decree for damages at Rs. 6000/ per month which he had claimed in the plaint but for such exemption.
We are, therefore.
Of the view that section 3 of the Amending Act was applicable to the suit in question as it was a proceeding instituted in the City Civil Court on the ground that the building in question was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 thereof although no express allegation was made in the plaint to that effect.
In order to get over the inevitable consequences flowing from section 3 of the Amending Act and the effect of an earlier decision of a Division Bench of the Madras High Court in Moolchand Gupta vs Madras Piece Goods Merchants Charitable Trust a novel and ingenious contention was urged on behalf of the plaintiff, the said contention being that after the termination of the lease with effect from February 29, 1964 by the issue of a notice under section 106 of the Transfer of Property Act, the original defendant became a trespasser and the premises in question ceased to be a building as defined in section 2(2) of the principal Act.
On the above basis, it was contended that the original defendant could not claim the benefit of any of the provisions of the principal Act and section 3 of the Amending Act.
It was argued that since a contention of this nature had not been considered in the case of Moolchand Gupta (supra), it had no binding effect on the Division Bench which heard this case.
It is appropriate at this stage to set out the passage from the judgment of the Division Bench of the High Court in which the binding nature of Moolchand Gupta 's case (supra) is considered: "In this context, Mr. Govind Swaminathan brought to our notice a decision of a Bench of this Court in Moolchand Gupta vs Madras Piece Goods Merchants Charitable Trust (supra) to which one of us was a party.
In our opinion, in that decision this question was not considered.
That case also was concerned with a non residential building which did not fall within the purview of the Act because of section 30(iii) of the Act.
The tenancy was terminated on 31st October, 1960 and the suit in ejectment was instituted on 19 12 1960 which ended in a compromise decree dated 31st January, 1963.
The decree provided for a direction for eviction against the quondam tenant, subject to cer 892 tain terms thereafter mentioned, to wit, the landlord being entitled to take possession of the portion of the premises in occupation of one Panchand and the Bullion Market Post Office immediately by executing the decree in so far as The said portion was concerned and the quondam tenant delivering possession of the rest of the portion in his occupation on or before 31st January, 1964 and the quondam tenant paying mesne profits at Rs. 1340/ per month for the period from 1st November 1960 to 31st January, 1963 and further mesne profits at Rs. 800/ per month for the period commencing from 1st February, 1963 till delivery of possession.
The decree also provided that if there was default in payment of the sum of Rs. 800/ or the other sum per month, the landlord would be entitled to execute the decree immediately.
Time for vacating was extended and before the building was actually vacated the Tamil Nadu 'Act 11 of 1964 intervened.
The question was, whether by virtue of the intervention of the Tamil Nadu Act 11 of 1964, the decree could be executed.
The learned trial Judge felt that in view of the fact that there had been a surrender of a part of the holding by the quondam tenant 's sub tenant, there was a disruption of the entire holding and therefore the quondam tenant would not be a statutory tenant within the meaning of section 2(8) of the Act.
The Bench disagreed with this conclusion and held that the quondam tenant would be a tenant under section 2(8) of the Act as he continued to remain in possession of the property even after the termination of the tenancy in his favour.
No point was urged before the Court that the termination of tenancy having taken place ? before Tamil Nadu Act 11 of 1964 came into force, the definition of the term 'tenant ' in section 2(8) did not apply to the quondam tenant in that case and therefore the said decision cannot be considered to be an authority for the point which is now raised before us.
" From the facts of Moolchand Gupta 's case (supra) it is clear that the Division Bench of the Madras High Court had held that a tenant whose tenancy had been terminated with effect from October 31, 1960 and against whom a decree for eviction had been passed prior to the date on which section of the Amending Act came into force was entitled to be treated as a tenant by virtue of the said provision since he had continued to remain in possession of the property even after 893 the termination of the tenancy.
The only ground on which the Division Bench which heard the present case did not follow the ruling in Moolchand Gupta 's case (supra) is that the effect of the termination of tenancy prior to the date on which Tamil Nadu Act No. Xl of 1964 came into force had not been considered in that case.
The binding effect of a decision, as observed by this Court in Smt.
Sommavanti & Ors.
vs The Sate of Punjab & Ors does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided.
On going through the decision in Moolchand Gupta 's case (supra) we are of the view that the appropriate procedure which the Division Bench should have followed in this case was to refer it to a full Bench instead of bypassing the said decision in the manner in which it has been done in this case.
The well settled practice to be followed in such cases is succinctly put by Das Gupta, J. in Mahadeolal Kanodia vs The Administrator General of West Bengal as follows: "Before we part with this appeal, however, it is our duty to refer to one incidental matter.
We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deorajan 's case was cited before the learned Judges ' who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench.
Judicial decorum no less than legal propriety forms the! basis of judicial procedure.
If one thing is more necessary in law than any other thing, it is the quality of certainty.
That quality would totally disappear if judges of co ordinate jurisdiction in a High Court start overruling one another 's decision.
If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion.
The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench.
894 In such a case lawyers would not know how to advise their the clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court.
As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench.
" Be that as it may, we are of the view that having regard to our finding that the suit stood abated on June 10, 1964 by virtue of the provisions of section 3 of the Amending Act, the original defendant, Seetharama Rao became a statutory tenant of the premises in question and he could not be evicted from the premises except in accordance with the procedure specified in the principal Act.
The position would not have been different even if a decree for eviction had been passed against him before June 10, 1964 and the decree had not been executed or satisfied in full on that date.
The several decisions on which reliance was placed by the Division Bench for determining the character of possession of the original defendant, Seetharama Rao after the expiry of the notice given under section 106 of the Transfer of Property Act were not relevant for the purpose of this case because in none of them there was any occasion to consider the effect of a provision similar to section 3 of the Amending Act.
We, therefore, do not agree with the finding of the Division Bench that the original defendant was a trespasser in possession of the premises in question after June 10, 1964.
We also find it difficult to agree with the finding of the Division Bench that the premises in question was not a 'building ' as defined in section 2(2) of the principal Act.
The reason given by the Division Bench for holding that the building in question was not a 'building ' within the meaning of section 2(2) of the principal Act was that it was not a building which was either 'let ' or 'to be let ' separately for residential or non residential purposes.
It is necessary to extract that part of the judgment of the Division Bench where the above question is dealt with: "The definition of the word 'building ' in section 2(2) states: "building ' means any building or hut or part of a building or hut, let or to be let separately for residential or non residential purposes . . 895 Consequently it is not every building that comes within the scope of the Act, but only a building let or to be let separately for either of the two purposes.
Admittedly on 10 6 1964 the suit building was not let because the tenancy came to an end by 29 2 1964 and late Seetharama Rao was not occupying the building from 1 3 1964 as a tenant, as found by us.
Therefore, the only other question is, whether the suit building can be said to be a building to be let separately for non residential purposes on 10 6 1964.
We have already referred to the claim of their plaintiff in his plaint that he needed the building for his own use and the contention of late Seetharama Rao in his written statement dated 25 4 1964 that the plaintiff was merely anxious to extort higher rent and for that purpose had from time to time approached him, that although he was prepared to pay a reasonable rent, he was not willing to pay anything exorbitant and that it is because of that the plaintiff had instituted the present suit on a pretence of requiring it for his own business.
With reference to the notice exhibit P 2, late Seetharama Rao stated that notice was merely in keeping with the previous notices to the same effect which were not intended to be acted upon.
However before the trial Judge the claim of the plaintiff that he required the premises for his own need was not put in issue and no issue was framed with reference thereto.
Tho learned Judge himself states in his judgment: "On the relevant date, undoubtedly there was no letting of the building and it is nobody 's case that the same was to be let.
" The correctness of this statement found in the judgment of the learned Judge, namely, that it was nobody 's case that the building was to be let has not been challenged either in the ground of the appeal filed before this Court or in the arguments before us.
Therefore we have to proceed on the basis that it was not the case of the defend its that the plaintiff wanted to let the premises in question.
This Court has construed the relevant expression, namely, 'building to be let ' occurring in section 2(2) of the Act as meaning 'building intended to be let ' in R. K. Veerappa Naidu & Anr.
vs N. Gopalan In the present case on 10 6 1964 it was not the case of the defendants that the building was intended to be let and it was not also their case that at any stage thereafter the plaintiff intended to let the 896 suit building.
Therefore, it follows that the suit building did not come within the purview of the Act as a result of the amending Act 11 of 1964.
" The reason given by the Division Bench for holding that the building in question was not a 'building ' within the meaning of section 2(2) of R the principal Act appears to be a strange one.
A definition clause does not necessarily in any statute apply in all possible contexts in which the word which is defined may be found therein.
The opening clause of section 2 of the principal Act itself suggests that any expression defined in that section should be given the meaning assigned to it therein unless ' the content otherwise requires.
The two fold reasoning of the Division Bench for holding that the building in question was not a 'building ' is that on June 10, 1964 (i) there was no lease in force and hence it was not let and (ii) that on that date the plaintiff had no intention to lease it and therefore it was not to be let.
We are of the view that the words "any building. . let. " also refer to a building which was the subject matter of a lease which has been terminated by the issue of a notice under section 106 of the Transfer of Property Act and which has continued to remain in occupation of the tenant.
This view receives support from the definition of the expression 'tenant ' in section 2(8) of the principal Act which includes a person continuing in possession after the termination of the tenancy in his favour.
If the view adopted by the Division Bench is accepted then it would not be necessary for a landlord to issue a notice of vacancy under section 3 of the principal Act when a building becomes vacant by the termination of a tenancy or any the eviction of the tenant when he wants to occupy it himself.
In law he cannot do so.
He would be entitled to occupy it himself when he is permitted to do so under section 3(3) or any of the provisions of section 3A of the principal Act.
This also illustrates that the view of the Division Bench is erroneous.
We, therefore, hold that the building in question was a 'building ' within the meaning of that expression in section 2(2) of the principal Act on the date on which section 3 of the Amending Act became operative.
It thus becomes clear that the Suit came to an end in the eye of law on June 10, 1964 and the original defendant became entitled to the protection of the principal Act.
He could thereafter be evicted from the building only after an order was made, by the Controller under any of the provisions of the principal Act which conferred jurisdiction on him to do so.
As mentioned earlier, no formal order was passed by the High Court on its original side stating that the suit had abated on June 10, 1964 till the death of the original defendant which took 897 place.
On January 15, 1968.
Owing to certain proceedings which were instituted by one or the other of the parties, the case was treated as a pending proceeding on the file of the High Court although in law, it was not open to the court to proceed with it after June 10, 1964.
The next significant step that was taken before the High Court was the application made by the appellant in the year 1973 requesting the Court to permit him to amend the plaint by the inclusion of a prayer for possession against defendants Nos. 2 to 10 on the basis that they were not 'tenants ' as defined in section 2(8) of the principal Act.
That application was allowed.
Defendants Nos. 2 to 10 thereafter filed their written statements and the issues framed in the suit were recast in the light of the pleadings.
The learned trial Judge, as stated above, disposed of the suit as a fresh one as against defendants Nos. 2 to 10 without recording a finding on the question whether it had abated or June 10, 1964.
The learned trial Judge does not state in the course of its judgment the date from which the proceeding was treated as a fresh suit.
In the instant case, the suit itself was originally flied on March 2, 1964.
The original defendant died on January 15, 1968.
Even if the proceeding was treated as a fresh suit against defendants Nos. 2 to 10, it could be treated as such only from a date subsequent to January 15, '968 on which date the original defendant did since the contention of the plaintiff which found favour with the learned single judge and the Division Bench of the High Court was that defendants Nos. 2 to 10 who were legal representatives of the original defendant could not succeed to the tenancy right of the original defendant.
In the instant case, since the plaintiff based his claim on the above contention in the year 1973 when he made the application for 1 amendment of the plaint, the date of the institution of the fresh suit could not be earlier than the date on which the application for amendment was made even if it was permissible to do so.
By his judgment the learned single Judge passed a decree for possession against defendants Nos. 2 to 10 and for damages to be determined under order 20 Rule 12 of the Code of Civil Procedure without specifying the date from which damages would be payable.
In the absence of such specification, the plaintiff became entitled to claim damages under order 20, Rule 12 of the Code of Civil Procedure even from the date of the suit i.e. March 2, 1964.
The Division Bench by its judgment affirmed that part of the decree of the trial court.
The direction for payment, of mesne profits given in the decree of the trial court without specify the date from which damages should be computed could not have been passel consistently with its judgment in which it had been stated that the suit was being treated as a fresh suit.
This defect, however is of a 3 473SCI/79 898 minor character.
What is more fundamental in this case is that it was not permissible for the trial court to Treat the proceeding which had been instituted against the original defendant prior to June 10, 1964 as a live proceeding which could be converted into a fresh suit instituted against defendants NOS.
2 to 10 after the death of the original defendant, Seetharama Rao.
An amendment of a plaint by inclusion of a new prayer or by addition of new parties can be made only where a suit is pending before a court in the eye of law.
On June 10, 1964, the entire proceedings commenced with the plaint filed on March 2, 1964 stood terminated and there was no plaint in a live suit which could be amended by the addition of new parties and the inclusion of a new prayer.
We are of the view that the addition of new parties which took place after the death of Seetharama Rao and the amendment of ' the plaint in the year 1973 and the passing of the decree by the trial Judge against defendants Nos. 2 to 10 who were not parties to the suit prior to June 10, 1964 on a cause of action which accrued subsequent to January 15, 1968 were all without jurisdiction.
It was, however, argued on behalf of the plaintiff before us relying upon the decision of this Court in B. Banerjee vs Anita.
Pan that since the parties had gone to trial with open eyes knowing fully that the plaintiff was relying upon a cause of action which accrued in his favour after the death of the original defendant and on the basis of the amendment of the plaint in the year 1973, the decree passed by the trial court and affirmed by the Division Bench of the High Court should not be interfered with in the interests of justice and equity.
It is no doubt true that in the decision referred to above, this Court permitted the t parties to file fresh pleadings and to prosecute the proceedings after the disposal of the case by this Court having regard to the delay which had already ensued.
It was possible for this Court to do so in that case because there was no legal impediment as we have in the present case.
To repeat, in the present case, the suit abated by reason of an express provision in a statute on June 10, 1964, the new cause of action on which the plaintiff depended accrued on January 15, 1968 i.e. the date of the death of the original defendant, the plaint itself was amended in the year 1973 claiming relief against defendants Nos. 2 to 10 not as legal representatives who inherited the tenancy right of the original defendant but as persons who had not inherited the said right .
It is thus seen that there was no proceeding in the eye of law rending after June 10, 1964, the cause of action on the basis of which relief was claimed was totally different and the persons against whom the relief was sought were also different.
Parties could not either by 899 consent or acquiescence confer jurisdiction on court when law had taken it away.
In these circumstances, we feel that the only course which we can adopt is to set aside the findings of the trial court and of the Division Bench on issues relating to the claim of the plaintiff to get possession of the property from defendants Nos. 2 to 10 on the ground that they were not statutory tenants i.e. issues Nos. 4 and 6 and to leave the questions involved in them open reserving liberty to the parties to agitate them in appropriate proceedings.
In view of our finding on issue No. 3, we hold that the decree passed by the trial court and the appellate court are unsustainable.
We accordingly allow the appeal, set aside the decrees passed by the trial court and by the Division Bench of the High Court and dispose of the suit as having abated on June 10, 1964.
The findings on issues Nos. 4 and 6 are set aside without expressing any opinion on them reserving liberty to the parties to agitate the question in appropriate proceedings.
Having regard to the peculiar circumstances of: the case, we direct the parties to bear their own costs throughout.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary:
In July, 1940 the plaintiffs father leased out the building of which he was the owner, to the defendant on a monthly rent of Rs. 950 for running a restaurant.
Even after the expiry of the period of lease in July, 1943 the defendant continued to be in possession of the building.
By virtue of the Madras Non residential Buildings Rent Control order, 1946 the defendant became a statutory tenant and under the order fair rent was fixed at Rs. 1680 p.m.
In 1949 the 1946 order was replaced by the Madras Buildings (Lease and Rent Control) Act.
On the death of his father in 1955 the plaintiff became the owner of the building.
The 1949 Act was repealed and replaced by the Tamil Nadu Buildings (Lease and Rent Control ) Act, 1960 (the Principal Act).
Section 30(iii) of the Principal Act provided that it was not applicable to non residential buildings, the rental value of which, according to the assessment of the Corporation of Madras, exceeded Rs. 400 p.m.
Even so the defendant continued to be in possession of the building.
Since the building was not governed by the Principal Act the plaintiff issued notice to the defendant to quit and instituted a civil suit in the City Civil Court on March 2, 1964 for eviction and damages.
In the meantime in June, 1964, by an amendment Act, the exemption contained in section 30 of the Principal Act in respect of non residential buildings was withdrawn so that from then on non residential buildings with a monthly rent of Rs. 400/ and above were also governed by the Principal Act.
Sec ion 3 of the Amending Act also provided that proceedings for eviction of the tenants of such non residential buildings instituted in civil courts should be treated as having abated.
In view of the amendment in December 1964 the City Civil Court dismissed the plaintiff s suit as having abated.
Thereupon the plaintiff filed an application under O. IX, r. 9 of the Code of Civil Procedure to set aside, its order dismissing the suit as having abated.
This application was allowed.
The defendants filed additional written statements in the City Civil Court raising the plea that the suit had actually abated by virtue of section 3 of the Amending Act.
In the meantime as a result of the plaintiff s application under section 24, Code of Civil Procedure the High Court withdrew the suit to its file (on the death of the original defendant, defendants 2 to 10 were impleaded as his legal representatives).
On the issue whether the suit had abated on June 10, 1964 by virtue of section 3 of the Amending Act the trial judge of the High Court refused to record a finding and disposed of the suit as if it was a fresh suit after the death of the 876 original defendant.
He passed a decree for possession and damages for use and occupation.
On appeal by the defendants the Division Bench of the High Court held that from March 1, 1964 the original defendant was a trespasser, that he was not entitled to the benefit of the Principal Act, that with the coming into force of the Amending Act the building itself was outside the scope of the principal Act, that section 3 of the Amending Act did not apply to the suit and so it did not abate on June 30, 1964 and that on the death of the original defendant, defendants 2 to 10 were not entitled to the protection against eviction under the Principal Act as amended in 1973.
Allowing the appeal, ^ HELD: Section 3 of the Amending Act was applicable to the suit as it was a proceeding instituted in the City Civil Court on the ground that the building was exempt from the provisions of the Principal Act by virtue of section 30(iii) thereof although no express allegation was made in the plaint to that effect.
[891 B] 1.
(a) The view of the Division Bench that section 3 of the Amending Act was not applicable to this case was erroneous in the absence of a contention by the plaintiff that section 3 was unconstitutional.
It was not for the court to ask whether there was any justification for the legislature to make a contrary provision in respect of the suits of the present nature.
There was every justification for enacting section 3 in order to give protection to the tenants against whom suits for eviction had been filed for buildings.
which were brought within the scope of the Principal ACT by deleting cl.
(iii) of section 30 of the Principal Act.
[886G, 887B] (b) In the context in which section 3 of the Amending Act was enacted it could not be said that it was not possible to identify the proceedings to which that provision referred.
In P. J. Gupta 's case this Court held that a proceeding which had been instituted on the ground that a non residential building was exempt from the provisions of the Principal Act by virtue of section 30(iii) and was pending on the date of publication of the amendment in the official gazette would abate but did not consider the type of cases which would fall within the scope of 3 of the Amending Act [888A B, 889G H] P. J. Gupta & Co. vs K. Venkatesan Merchant & ors.
; ; held inapplicable.
(e) The words "instituted on the ground that such building or part was exempt from the provisions of the Principal Act by virtue of cl.
(iii) of section 30 of the Principal Act" should be construed in the context in which they appeared as referring to a proceeding which had been instituted in the light of section 30(iii) of the Principal Act which granted exemption in respect of the buildings refer red to therein from the operation of the Principal Act.
Any other construction would defeat the object of the Amending Act.
[890E F] In the instant case the original plaint was filed on the basis that The tenancy had been terminated with effect from the expiry of February 29, 1964.
The plaintiff prayed for the eviction of the defendant damages for use and occupation and not the fair rent fixed under the Rent Control law.
The suit could be filed only because of the exemption contained in section 30(iii) of the Principal Act 877 because in the absence of such exemption no effective decree for ejectment could be passed by the City Civil Court in view of section 10 of the Principal Act.
[890 G H] 2.
The original defendant was not a trespasser in possession of the premises after June 10, 1964.
He became a statutory tenant of the premises and could not be evicted from them except in accordance with the procedure specified in the Principal Act.
The position would not have been different even if a decree for eviction had been passed against him before June 10, 1964 and the decree had not been executed or satisfied in full on that date [894 C D] 3.
(a) The building in question was a building within The meaning of that expression in section 21 '>) of the Principal Act on the date when section 3 of the amending Act came into force.
[896 F G] (b) The view of the Division Bench that the suit property was not a "building" within the meaning of section 2(2) on the ground that there was no lease in force and hence it was not let and that on that date the plaintiff had no intention to lease it and therefore it was not to be let was erroneous.
A definition clause does not necessarily apply in all possible contents in which the word may be found.
The opening clause of section 2 of the Principal Act suggests that any expression defined in that section should be given a meaning assigned to it therein unless the context otherwise requires.
[896 B C] 4.
The original defendant became entitled to The protection of the Principal Act on June 10, 1964 and he could be evicted from the building only after an order was made by the Rent Controller.
The High Court did not pass an order the suit had abated on June 10, 1964 till the death of the original defendant on January 15, 1968.
As a result of the proceedings instituted by one or the other of the parties the case was treated as pending although in law it was not open to the Court to proceed with it after 10.
[896G 897A] 5.
It has not permissible for the trial court to treat the proceeding which had been instituted against the original defendant prior to June 10, 1964 as a live proceeding which could be converted into fresh suit instituted against defendants No. 2 to 10 after the death of the original defendant.
An amendment of the plaint by inclusion of a new prayer or by addition of new parties can be made only where in the eye of law a suit is pending before a Court.
When the suit filed on March 2, 1964 stood terminated with the coming into force of the amending Act on June 10, 1964 there was no plaint in a live suit which could be amended by the addition of new parties and the inclusion of a new prayer.
Therefore the addition of parties which took place after the death of the original defendant and the amendment of the plaint in 1973 requesting the court to pass a decree against defendants 2 to 10 who were not ' parties to the suit prior to June 10, 1964 on a cause of action which accrued subsequent to January 15, 1968 were without jurisdiction.
[898A D] B. Banerjee vs Anita Pan, ; ; held inapplicable.


judgement:
Civil Appeal No. 422 of 1980.
Appeal by Special Leave from the Judgment and Order dated the 23 8 1979 of the Madhya Pradesh High Court (Jabalpur Bench) at Gwalior in Second Appeal No. 42 of 1979.
1246 section K. Gambhir for the Appellant.
Mr. N. section Das Bahl for Respondent.
The Judgment of the Court was delivered by DESAI, J.
Respondent Ram Ratan was employed as a Forest Guard in the Forest Department of Madhya Pradesh Government.
He was served with a charge sheet dated March 6, 1969, in which he was accused of misconduct.
Respondent refuted the charges.
A departmental enquiry was held by the Divisional Forest Officer, Mr. Malhotra, in respect of the charges framed against the respondent.
Charge of misconduct was held proved whereupon the punishing authority served respondent with a second show cause notice dated February 12, 1970, as contemplated by Article 311(2) of the Constitution as it stood prior to its amendment by the Constitution (Fortysecond Amendment) Act, 1976.
The dispute in this appeal centres around the construction of this notice No. E/1/2053 dated February 12, 1970, and its relevant portion may be extracted: ".
the Enquiry Officer has concluded in the report that he is guilty of the above mentioned charges.
Hence as a result of the above said charges having been established, why you shall not be imposed major penalty under the M. P. Civil Services Act ? .
Why you will not be removed from the State Service by imposing the abovesaid punishment ?" After the respondent replied to the notice the disciplinary cum punishing authority imposed the penalty of compulsory retirement on the respondent.
The respondent questioned the validity and correctness of the punishment in Civil Suit No. 227A/73 filed by him in the Court of the Civil Judge, Civil Court, Class II, Sabalgarh.
The trial Court decreed the suit and set aside the order imposing the major penalty of compulsory retirement and granted a declaration that respondent continues in service.
On appeal by the State of Madhya Pradesh, the Second Additional District Judge, Morena, set aside the decree of the trial court and dismissed the suit of the respondent.
On appeal by the respondent to the High Court a learned single judge of the Madhya Pradesh High Court allowed the appeal of respondent and set aside the decree made by the District Judge and restored the one passed by the trial court with the result that a declaration was granted that the respondent would continue in service till the date of his superannuation.
Hence this appeal by special leave by the State of Madhya Pradesh.
1247 The High Court was of the opinion that strict compliance with Art.311(2) of the Constitution along with rule 15(4)(i)(b) of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 ( '1966 Rules ' for short), must be insisted upon because it provides a safeguard against arbitrary removal from service of Government servants.
Consistent with this approach and drawing sustenance from the decision of this Court in Union of India & Ors.
vs K. Rajappa Menon,(1) it was held that unless the disciplinary or competent authority tentatively determines to inflict a particular penalty and specifies the particular penalty to be inflicted on the delinquent Government servant, the show cause notice cannot be sustained without such a particular penalty being specified and the final order cannot be sustained unless the specified and no other penalty is imposed.
Article 311(2) as it stood at the relevant time prior to its amendment in 1976 imposed a constitutional obligation upon the punishing authority to serve a second show cause notice where it is proposed after a departmental inquiry to impose on the delinquent Government servant any of the penalties referred to in article 311 so as to give a reasonable opportunity of making representation on the penalty proposed.
Rule 15(4) (i)(b) of the 1966 Rules prescribes procedure to be followed by the disciplinary authority before imposing punishment to the effect that the concerned authority should give a notice setting the penalty proposed to be imposed on the concerned government servant calling upon him to submit within 15 days of the receipt of notice or such further time not exceeding 15 days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis if the evidence adduced during the inquiry held under rule 14.
It would thus appear that the punishing authority has in the second show cause notice to specify the punishment which it tentatively or provisionally decides upon to impose looking to the gravity of the charge which is held proved.
At that stage the decision of the punishing authority is a tentative decision and in the very nature of things it must be so because an opportunity has to be given to the delinquent government servant to make a representation on the nature of penalty.
This would imply that if the delinquent officer in his representation makes out a case for a lesser punishment the disciplinary authority would keep an open mind and after applying its mind to the representation made by the delinquent government servant, the authority may either confirm its earlier tentative decision or it would be open to it to award a lesser penalty on them the one tentatively decided.
1248 Principle of natural justice and fair play implicit in article 311(2) and rule 15(4) (i) (b) would require that the disciplinary authority has to take into consideration the representation made by the delinquent government servant in response to the notice which is a constitutional obligation, and if the delinquent officer is in a position to persuade by his representation, to so modulate the punishment as would accord with the gravity of the misconduct and other mitigating or extenuating circumstances all of which may enter into the verdict of deciding upon the penalty, and consequently the disciplinary authority would be free to impose a lesser penalty than the one proposed in the second notice.
This is the constitutional scheme.
If the view that the High Court has taken is to be accepted that the disciplinary authority must tentatively decide upon the penalty and specify the penalty in the second show cause notice and after taking into consideration the representation made by the delinquent government servant in response to the notice it can only either confirm the tentative decision but cannot award a lesser punishment, the exercise of giving second show cause notice becomes self defeating and giving of the notice inviting the representation on the question of penalty would be an exercise in futility.
Such an approach would render a tentative decision as final and the rest being an empty formality.
Such could not be the underlying object in enacting a constitutional mandate for the protection of government servants.
In service jurisprudence for different types of misconduct various penalties are prescribed in service rules.
1966 Rules prescribe as many as 9 penalties which can be awarded for good and sufficient reasons.
In the list of penalties the first three are styled as 'minor penalties ' and the remaining six are styled as 'major penalties '.
Compulsory retirement is one of the major penalties.
Similarly, removal from service which shall not be a disqualification for future appointment in government service and dismissal from service which shall ordinarily be a disqualification for future employment under the government are the other two major penalties.
The disciplinary authority keeping in view the gravity of misconduct committed by the government servant will tentatively determine the penalty to be imposed upon the delinquent government servant.
Degree of seriousness of misconduct will ordinarily determine the penalty keeping in view the degree of harm that each penalty can inflict upon the government servant.
Before serving the second show cause notice the disciplinary authority will determine tentatively the penalty keeping in view the seriousness of misconduct.
But this is a tentative decision.
On receipt of representation in response to notice, the disciplinary authority will apply its mind to it, take into account any extenuating or mitigating circumstances pleaded in the representation and finally 1249 determine what should be penalty that would be commensurate with the circumstances of the case.
Now, if a major penalty was tentatively decided upon and a lesser or minor penalty cannot be awarded on the view taken by the High Court because this was not the specified penalty, the government servant to whom a notice proposing major penalty is served would run the risk of being awarded major penalty because it would not be open to award a lesser or a minor penalty than the one specified in the show cause notice.
Such a view runs counter to the principle of penology.
In criminal and quasi criminal jurisprudence where the penalties are prescribed it is implicit thereunder that a major penalty would comprehend within its fold the minor penalty.
If a major penalty is proposed looking to the circumstances of the case, at that stage, after taking into consideration the representation bearing on the subjects and having an impact on the question of penalty a minor penalty can always be awarded.
In penal statute maximum sentence for each offence is provided but the matter is within the discretion of the judicial officer awarding sentence to award such sentence within the ceiling prescribed by law as would be commensurate with the gravity of the offence and the surrounding circumstances except where minimum sentence is prescribed and Court 's discretion is by legislation fettered.
This is so obvious that no authority is needed for it but if one is needed, a constitution Bench of this Court in Hukam Chand Malhotra vs Union of India(1) dealt with this very aspect.
Relevant portion of the second show cause notice which was before this Court may be extracted: 'On a careful consideration of the report, and in particular of the conclusions reached by the Enquiry Officer in respect of the charges framed against you the President is provisionally of opinion that a major penalty viz., dismissal, removal or reduction should be enforced on you. ' Ultimately, after taking into consideration the representation made by the concerned government servant penalty of removal from service was imposed upon him.
It was contended before this Court that in view of the decision of the Privy Council in High Commissioner for India and High Commissioner for Pakistan vs I. M. Lall, and Khem Chand vs Union of India(3) it is well settled that the punishing authority must either specify the 'actual punishment ' or 'particular punishment ' in the second show cause notice otherwise the notice would be bad.
Repelling this contention this Court observed as under: 1250 Let us examine a little more carefully what consequences will follow if article 311(2) requires in every case that the "exact" or "actual" punishment to be inflicted on the Government servant concerned must be mentioned in the show cause notice issued at the second stage.
It is obvious, and article 311(2) expressly says so, that the purpose of the issue of a show cause notice at the second stage is to give the Government servant concerned a reasonable opportunity of showing cause why the proposed punishment should not be inflicted on him, for example, if the proposed punishment is dismissal, it is open to the Government servant concerned to say in his representation that even though the charges have been proved against him, he does not merit the extreme penalty of dismissal, but merits a lesser punishment, such as removal or reduction in rank.
If it is obligatory on the punishing authority to state in the show cause notice at the second stage the "exact" or "particular" punishment which is to be inflicted, than a third notice will be necessary if the State Government accepts the representation of the Government servant concerned.
This will be against the very purpose for which the second show cause notice was issued". ".
If in the present case the show cause notice had merely stated the punishment of dismissal without mentioning the other two punishments it would still be open to the punishing authority to impose any of the two lesser punishments of removal or reduction in rank and no grievance could have been made either about the show cause notice or the actual punishment imposed".
The High Court in support of its decision has relied upon K. Rajappa Menon 's case (Supra).
The High Court appears to be of the view that the decision in Rajappa Menon 's case is an authority or the proposition that if the punishing authority fails to specify any particular punishment to be imposed on the Government servant the show cause notice cannot be sustained without such a particular punishment being specified.
Such was not the case before this Court in Rajappa Menon 's case.
The contention canvassed before this Court was that if disciplinary authority specifies the penalty tentatively decided upon by it.
it would indicate that the authority has finally made up its mind and, therefore, the notice would be bad.
This contention was in terms negatived relying upon Khem Chand 's case (Supra) and it was observed that the procedure which is to be followed under article 311(2) of the Constitution of affording a reasonable opportunity includes giving of two notices, one at the enquiry stage and 1251 the other when the competent authority as a result of the enquiry tentatively determines to inflict a particular punishment.
It is quite obvious that unless the disciplinary or the competent authority arrives at some tentative decision it will not be in a position to determine what particular punishment to inflict and a second show cause notice cannot be issued without such a tentative determination.
This is of no assistance in the case under discussion.
It is thus incontrovertible that if any particular penalty is specified as tentatively proposed in the second show cause notice the disciplinary authority after taking into consideration the representation made by the delinquent government servant can award that penalty or any lesser penalty and in so doing article 311(2) will not be violated.
In fact, this leaves open a discretion to the punishing authority which accords with reason, fair play and justice.
The fact situation in this appeal is that in the notice dated February 12, 1970, the disciplinary authority stated that it was tentatively proposed to impose major penalty, viz., removal from service.
Original notice is in Hindi language.
Its translation in English language is placed on record.
It clearly transpires from the notice that the punishing authority tentatively proposed to impose a major penalty of removal from service.
Ultimately, after taking into consideration the representation of the respondent the disciplinary authority imposed penalty of compulsory retirement.
In relation to penalty of removal from service the penalty of compulsory retirement inflicts less harm and, therefore, it is a lesser penalty compared to removal from service.
Compulsory retirement results in loss of service for certain years depending upon the date of compulsory retirement and the normal age of superannuation, but the terminal benefits are assured.
In removal from service there is a further disqualification which may have some repercussion on terminal benefits.
It was not disputed before us that in comparison to removal from service compulsory retirement is a lesser penalty.
Therefore, when in the second show notice major penalty of removal from service was tentatively proposed, it did comprehend within its fold every other minor penalty which can be imposed on the delinquent government servant.
That having been done, no exception can be taken to it.
The High Court was accordingly in error in holding that the second show cause notice was invalid and on this ground allowing the second appeal of the respondent, and decreeing his suit.
Accordingly this appeal will have to be allowed.
1252 The next question is, what order we should make in this appeal.
If the appeal is allowed, naturally the suit of the respondent will stand dismissed. ' The respondent was a Forest Guard, a petty servant, serving in the Forest Department of the State.
The charge against him was that he removed some forest wood worth about Rs. 310.12P.
He has been in this litigation for the last 10 years.
He won in the trial court and in the High Court.
This appeal was preferred by the State for a decision on the question of law which may affect other cases.
Allowing the State appeal would clarify the legal position and that would serve the purpose of the State in preferring the appeal.
A welfare State would hardly be interested in pursuing its employees serving in the lower echelons of service as would inflict, unbearable burden on him.
Further, if the order by the High Court is not interfered with, the respondent would have to be reinstated in service but by the passage of time he would have by now retired on superannuation also and accordingly he would be entitled to his salary for the period commencing from date of his compulsory retirement to the date of his normal retirement on superannuation.
Since we are exercising our extraordinary jurisdiction under article 136 of the Constitution, we are not bound to set aside the order of the High Court directing reinstatement of the respondent but as he would now only be entitled to his back wages, we quantify the same at Rs. 10,000/ and direct that the State shall pay the same with costs quantified at Rs. 1,000/ to the respondent.
Such an approach accords with the demands of social justice, reason and fair play.
[See Punjab Beverages Pvt. Ltd. vs Suresh Chand & Ors.(1)] The State shall pay the amount herein directed to be paid within two months from today and the respondent shall be entitled to his terminal benefits from the date of his retirement on superannuation.
This appeal stands disposed of accordingly.
S.R. Appeal allowed.

summary:
Respondent Ram Ratan was employed as a Forest Guard in the Forest Department of Madhya Pradesh Government.
He was served with a charge sheet dated March 6, 1969, in which he was accused of misconduct.
Respondent refuted the charges.
A departmental enquiry was held by the Divisional Forest Officer, Mr. Mathotra, in respect of the charges framed against the respondent.
Charge of misconduct was held proved whereupon the punishing authority served respondent with a second show cause notice dated February 12, 1970, as contemplated by Article 311(2) of the Constitution as it stood prior to its amendment in 1976.
After the respondent replied to the notice the disciplinary cum punishing authority imposed the penalty of compulsory retirement on the respondent.
The respondent questioned the validity and correctness of the punishment in Civil Suit No. 227 A/73 filed by him in the Court of the Civil Judge, Civil Court, Class II, Sabalgarh.
The trial Court decreed the suit and set aside the order imposing the major penalty of compulsory retirement and granted a declaration that respondent continues in service.
On appeal by the State of Madhya Pradesh, the Second Additional District Judge, Morena, set aside the decree of the trial Court and dismissed the suit of the respondent.
On appeal by the respondent to the High Court a learned single judge of the Madhya Pradesh High Court a allowed the appeal of respondent and set aside the decree made by the District Judge and restored the one passed by the trial Court with the result that a declaration was granted that the respondent would continue in service till the date of his superannuation.
Hence this appeal by special leave by the State of Madhya Pradesh.
Allowing the appeal, the Court ^ HELD: 1. Article 311(2) as it stood at the relevant time prior to its amendment in 1976 imposed a constitutional obligation upon the punishing authority to serve a second show cause notice where it was proposed after departmental inquiry to impose on the delinquent Government servant any of the 1244 penalties referred to in article 311 so as to give a reasonable opportunity of making representation on the penalty proposed.
Rule 15(4)(i)(b) of the 1966 Rules prescribes procedure to be followed by the disciplinary authority before imposing punishment to the effect that the concerned authority should give a notice setting out the penalty proposed to be imposed on the concerned government servant, and calling upon him to submit within 15 days of the receipt of notice or such further time not exceeding 15 days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under rule 14.
The punishing authority has in the second show cause notice to specify the punishment which it tentatively or provisionally decides upon to impose looking to the gravity of the charge which is held proved.
At that stage the decision of the punishing authority is a tentative decision and in the very nature of things it must be so because an opportunity has to be given to the delinquent government servant to make a representation on the nature of penalty.
This would imply that if the delinquent officer in his representation makes out a case for a lesser punishment the disciplinary authority would keep an open mind and after applying its mind to the representation made by the delinquent government servant, the authority may either confirm its earlier tentative decision or it would be open to it to award a lesser penalty then the one tentatively decided.
[1247 C H] 2.
Principle of natural justice and fair play implicit in article 311(2) and rule 15(4)(i)(b) would require that the disciplinary authority has to take into consideration the representation made by the delinquent government servant in response to the notice which is a constitutional obligation, and if the delinquent officer is in a position to pursuade by his representation, to so modulate the punishment as would accord with the gravity of the misconduct and other mitigating or extenuating circumstances all of which may enter into the verdict of deciding upon the penalty, and consequently the disciplinary authority would be free to impose a lesser penalty than the one proposed in the second notice.
This is the constitutional scheme.
[1248 A B] If the view, namely, that the disciplinary authority must tentatively decide upon the penalty and specify the penalty in the second show cause notice and after taking into consideration the representation made by the delinquent government servant in response to the notice it can only confirm the tentative decision but cannot award a lesser punishment, the exercise of giving second show cause notice becomes self defeating and giving of the notice inviting the representation on the question of penalty would be an exercise in futility.
Such an approach would render a tentative decision as final and the rest being an empty formality.
Such could not be the underlying object in enacting a constitutional mandate for the protection of government servants.
[1248 C E] In service jurisprudence for different types of misconduct various penalties are prescribed in service rules.
1966 Rules prescribe as many as 9 penalties which can be awarded for good and sufficient reasons.
Compulsory retirement is one of the major penalties.
Similarly, removal from service which shall not be a disqualification for future appointment in government service and dismissal from service which shall ordinarily be a disqualification for future employment under the government are the other two major penalties.
The disciplinary authority keeping in view the gravity of misconduct committed by the government servant will tentatively determine the penalty to be imposed upon the delinquent government servant.
Degree of seriousness of misconduct will ordi 1245 narily determine the penalty keeping in view the degree of harm that each penalty can inflict upon the government servant.
Before serving the second show cause notice the disciplinary authority will determine tentatively the penalty keeping in view the seriousness of misconduct.
But this is a tentative decision.
On receipt of representation in response to notice, the disciplinary authority will apply its mind to it, take into account any extenuating or mitigating circumstances pleaded in the representation and finally determine what should be the penalty that would be commensurate with the circumstances of the case.
[1248 E H, 1249 A] It a major penalty was tentatively decided upon and a lesser or minor penalty cannot be awarded because this was not the specified penalty, the government servant to whom a notice proposing major penalty is served would run the risk of awarded major penalty because it would not be open to award a lesser or a minor penalty than the one specified in the show cause notice.
Such a view runs counter to the principle of penology.
In criminal and quasi criminal jurisprudence where the penalties are prescribed it is implicit thereunder that a major penalty would comprehend within its fold the minor penalty.
If a major penalty is proposed looking to the circumstances of the case, at that stage, after taking into consideration the representation bearing on the subject and having an impact on the question of penalty a minor penalty can always be awarded.
In penal statute maximum sentence for each offence is provided but the matter is within the discretion of the judicial officer awarding sentence to award such sentence within the ceiling prescribed by law as would be commensurate with the gravity of the offence and the surrounding circumstances except where minimum sentence is prescribed and Court 's discretion is by legislation fettered.
[1299 A D] Therefore, if any particular penalty is specified as tentatively proposed in the second show cause notice the disciplinary authority after taking into consideration the representation made by the delinquent government servant can award that penalty or any lesser penalty and in so doing article 311(2) will not be violated.
In fact, this leaves open a discretion to the punishing authority which accords with reason, fair play and justice.
[1251 B C] Hukam Chand Malhotra vs Union of India,[1959] Suppl.
1 SCR 892; followed.
Union of India and Ors.
vs K. Rajappa Menon,[1969] 2 SCR 343; explained.
Supreme Court while exercising its extraordinary jurisdiction under Act.
136 of the Constitution, is not bound to set aside the order of the High Court directing reinstatement of the employee, when he has succeeded in the two courts below.
Quantifying the backwages and the costs would accord with the demands of social justice, reason and fairplay.
[1252 D E] Punjab Beverages P. Ltd. vs Suresh Chand and Ors. ; ; followed.