Babu Ram Gopal and Others v Mathra Dass

BABU RAM GOPAL AND OTHERS A _v._ MATHRA DASS FEBRUARY 28, 1990 B [LALIT MOHAN SHARMA AND V. RAMASWAMY, JJ.] _EAST_ _PUNJAB_ _URBAN_ _RENT_ _RESTRICTION_ _ACT,_ _1949: Section_ _I3(2)(v)-Tenant-Temporarily_ _suspending_ _actual_ _physical user of premises-Whether liable for eviction-Whether non-_ _occupation must continue till the date of filing of eviction application._ C _INTERPRETATION_ _OF_ _STATUTES: External_ _aids-_ _Comparison with Rent Acts of other_ States~Not _commended._ On an application filed by the respondent-landlord in March 1973 for eviction of the appellant-tenant on the ground that for a _b_ continuous period of more than four months the appellant had ceased to occupy the shop during 1969-71, the Rent Controller passed a decree· for eviction under Section 13(2)(v) of the East Punjab Rent Restriction Act, 1949. The appellate authority affirmed the decree. The High Court rejected the tenant's appeal. / E In the appeal before this Court, the appellant-tenant contended that though the shop had remained closed for a temporary period, it was in his effective control and that since the non-occupation did not~ continue when the eviction petition was filed, the ground mentioned in Section 13(2)(v) had not been made out. \ F On behalf of respondent-landlord, it was contended that sim·; in,a number of Rent Acts, the ground specifically required such nonoccupation for a period immediately preceding the date on which the ejectment application was filed, the Act which did not use identical language, should be interpreted differently. ~ Allowing the appeal, this Court, HELD: 1.1 If a tenant stops the business which he is carrying on in a shop and closes the premises continuously for a period of four months without a reasonable cause he will be liable for eviction. However, the non-occupation of the premises by a tenant must continue till H the date o~filing of application for his eviction on the ground covered by s. 13(2)(v).' [739D] 736 B.R. GOPAL _v._ MATIIRA DASS 737 _1.2_ The reason of inclnding clause (v) in s. 13(2) is to ensure that buildings, which are scarce in number specially in the towns, necessitating rent control legislation, do not remain unused at the instance of tenants who do not actually need them. A tenant who is in possession of a building in the legal sense only cannot be said to be in occupation thereof for the purpose ofs. 13(2)(v); otherwise a question of his eviction as envisaged in that section would not arise. The section, by making provisions for his ejectment, assumes that he is in possession, but, still includes cessation of occupation as one of the grounds. The clause, therefore, has to be interpreted in this background and it must take colour from the context. [739B-C) However, the use of present perfect tense in the words 'has ceased to occupy' contemplates a period even connecting in some way with the present time. [74IA) _Goppulal_ v. _Thakurji Shriji Shriji Dwarkadheeshji_ _&_ _Anr.,_ [1969) l SCC 792, relied on. _V._ _Dhanpal Chettiar_ v. _Yesodai Ammal,_ [1980) I SCR 334 and _Gajanan Dattatraya_ v. _Sheroani Hosang Patel_ _&_ _Ors.,_ [1976) l SCR 535, referred to. A B c D 'r I I. 3 Though a comparison of the language of the Act with that of other Rent Acts specifically indicating that the period of non-occupation E should be one immediately preceding the suit supports the view that the period of non-occupation need not subsist at the date of the suit, that alone does not outweigh the other relevant circumstances. If, on the other hand, provisions of several other Acts are examined it would be seen that the Section has been framed in such a way which avoids use of present perfect tense. Besides, comparing statutes of different States is F not to be commended because similarity or variation in the laws of different States is not necessarily indicating of a kindered or different intention. [741B-D) _Nathia Agarwalla and Another_ v. _Musst. Jahanara Begum and_ _Others,_ [1966] 3 SCR 926, followed. G In the circumstances, the decision of the courts below that the tenant is liable to be ejected is set aside. [741G) CIVIL APPELLATE JURISDICTION: Civil Appeal No. 823 ~ml. H A B ##### c D E **F** 738 SUPREME COURT REPORTS [1990] I S.C.R. From the Jud8Jlle_nt and Order dated 16.10.1979 of the Punjab & 1;-Iaryana High Court in Civil Revision No. 2300 of 1979. V.C. Mahajan (NP), Ms. Urmila Kapoor, Ms. S. Janani and Ms. Meenakashi for the Appellant. M.L. Verma and P.C. Kapur for the Respondents. The Judgment of the Court was delivered by **SHARMA,** **J.** This appeal by a tenant-defendant is directed against the decree for his eviction from a shop on the ground mentioned in s. 13(2)(v) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) which renders the tenant liable for eviction if_he_has ceased to occupy_the rented premises for a continuous period of four months without reasonable cause. The questions which are involved in this case are whether a tenant can be said to have ceased to occupy a building merely for the .reason that he temporarily suspends the actual physical user thereof; and whether a landlord is entitled to a decree even if the tenant has re-occupied the premises before the eviction proceeding was commenced. 2. The landlord-respondent filed the present application for eviction ofihe appellant before the Rent Controller in March, 1973and _inter_ _alia_ pleaded that for a continuous period of more than four months the appellant had ceased to occupy the shop during 1969 to 1971 and he was, therefore. liable to be ejected. The appellant disputed the allegation, but, the Rent Controller as well as the Appellate Authority rejected the defence and accepted the plaintiff's plea. After unsuccessfully moving the High Court under s. 15(5) of the Act, the tenant had filed the present appeal by special leave. **3.** **The** **grounds** **on** **which a tenant can be asked to quit are** mentioned under s. 13(2) of the Act, and. unde! clause (v) thereof the Controller may pass an order for the tenant's eviction if he is satisfied, **--1** ' i _)_ ' ## • .., G "13(2)(v): That where the building is situated in a place other than a hill-station, the tenant has ceased to occupy the_ building for a continuous period of four months without. **reasonable cause,"** Mrs. Urmila Kapoor appearing in support of the appeal contended H that the appellant has all along been in possession of the shop which . B.R. GOPAL _v._ MATHRA DASS [SHARMA, J.] 739 ~ was never vacated and merely for the reason that the shop remained A closed for a temporary period he cannot be said to have ceased to ' occupy the same. The argument is that the appellant's occupation of the shop was never interrupted as it was in his effective control, ### ) ' although closed and secured under the appellant's lock which nobody ever disturbed. We do not find ourselves in a position to accept the \ interpretation of the section as attempted on behalf of the appellant. The reasod of including the clause (v) in s. 13(2) is to ensure that buildings, which are scarce in number specially in the towns, neces# ' sitating rent control legislation, do not remain unused at the instance interpretation of the section as attempted on behalf of the appellant. B The reasod of including the clause (v) in s. 13(2) is to ensure that buildings, which are scarce in number specially in the towns, necessitating rent control legislation, do not remain unused at the instance of tenants who do not actually need them. A tenant who is in possession of a bl,/ilding in the legal sense only cannot be said to be in ##### occupation thereof for·the purpose of s. 13(2)(v); otherwise a question of his eviction as envisaged in that section would not arise. The sec- c ...I. tion, by making provisions for his ejectment, assumes that he is in possession, bµt, still includes cessation of occupation as one of the grounds. The clause, therefore, has to be interpreted in this background and it ;must take colour from the context. We, therefore, hold that if a tenant stops the business which he is carrying on in a shop and D closes the premises continuously for a period of four months without a reasonable cause he will be liable for eviction. ###### ~ 4. The other point urged by Mrs. Kapoor needs more serious consideration. The non-occupation of the premises by the tenant did not continue after 1971, and the eviction petition was filed in 1973. Is it E permissible to hold, in this situation, that the ground mentioned in s. 13(2)(v) has been made out? OIJ behalf of the respondent it has been contended that since in a number of Rent Acts of other States a similar ground specifically requires such non-occupation for a period imme_y_ diately preceding the date on which the ejectment application is filed, I the present Act which does not use identical language should• be F interpreted differently. Reliance has also been placed on the observations of this Court in _Gajanan Dattatraya_ v. _Sherbanu Hosang Patel_ & _Ors.,_ [1976] 1 S.C.R. 535; a case arising under the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947. 5. The prayer for eviction, in the above case, was founded on a G ..._ plea of subletting, and the ground in this regard, as mentioned in s. 13(1)(e), is "that the tenant has, since the coming into operation of the Act, unlawfully sublet" the premises. The Court rejected a similar contention of the tenant, as in the present case, by holding that, "To acce~e to_ the contention of .the appellant would mean H I I. _)_ l #### **j** ## J 1 A II 740 SUPREME COURT REPORTS [ 1990] 1 S.C.R. that a tenant would not be within the mischief of unlawful subletting if after the landlord gives a notice terminating the tenancy on the ground or unlawful subletting the subtenant vacates. The landlord will not be able to get any relief against the tenant in spite of unlawful subletting. In that way the tenant can foil the attempt of landlord to obtain possession of the premises on the ground of subletting every time by getting the sub-tenant to vacate the **premises."** The observations, and consequently the decision were based on the law requiring service of notice to quit before starting an action for ejectment as assumed earlier before the decision of 7 learned Judges in _V. Dhanpa/ Chettiar_ v. _Yesodai Ammal,_ [1980] 1 S.C.R. 334 holding otherwise was given. The provisions of s. 13 had, then, to be construed in a manner which did not render the same completely ineffective. Now, that is not the position. It is true that the Court in the former decision also observed that the tenant's liability to eviction arose once D the fact of unlawful subletting is proved, but, the very next sentence further clarifies the position in the following words: "At the date of the notice, if it is proved that there was unlawful subletting, the tenant is liable to be evicted." E It is significant to note that according to the decision the subletting had to continue till the date of the notice. If the requirement of notice disappears the above observation must be read as referring to the application for eviction and not the notice. 6. '.(he observations in an earlier case of this Court in _Goppulal_ Ii' v. _Thakurji Shriji Shriji Dwarkadheeshji_ _&_ _Anr.,_ [1969] 1 S.C.C. 792; may be of some heip in the present context. This decision was discussed in _Gajanan Dattatraya's_ case (suJJra) and was distin_gnished on the ground that the Court there had no occasion to consider the question as to whether subletting to be within the mischief of the relevant statute is to subsist at the date of the suit. It is true that the Court did G not have to consider and decide directly the present controversy, but, the comment made on the language of the statute concerned is helpful to the tenant. The dispute, in that case, depended on the interpretation of s. 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 which forbids the Court to pass a decree for eviction unless _inter alia_ "the tenant has assigned, sublet or otherwise H parted with the possession" of the disputed premises. There the words "has sublet" needed construing, ~bile in the case before us they are y ###### _J_ B.R. GOPAL '· MATHRA DASS [SHARMA, J.l 741 "has ceased to occupy". In this background, the Court said that the use of present perfect tense contemplates a period even connecting in some way with the present time. 7. So far as the language of some rent Acts, specifically indicating that the period of non-occupation should be one immediately preceding the suit, is concerned, the learned counsel is right that a comparison of the language of the present Act lends some support to his stand, but this alone does not outweigh the other relevant circumstances. On the other hand, if the provisions of several other Acts are examined, it will be seen that the section has been phrased in a way which avoids the use of present perfect tense. As an illustration, the provisions of the Bihar Rent Act may be seen, which forbids the eviction of a tenant "except in execution of a decree passed" for subletting (or for other grounds mentioned therein). Besides, as pointed out in _Nathia_ _Agarwalla and Another_ v. _Musst. Jahanara Begum and Others,_ [1966] 3 SCR 926; comparing statutes of ·different States is not to be commended because similarity or variation in the laws of different States is not necessarily indicative of a kindered or a different intention. The reason for this view was expressed in the following language: "Enactments drafted by.different hands, at different times and to satisfy different requirements of a local character, seldom afford tangible or sure aid in construction. We would, therefore, put aside the Rent Control Acts of Madras, Bihar, Delhi and other States because in these States the problem of accommodation in relation to the availability of lands and houses and the prior legislative **history and experience, cannot be same as in Assam."** 8. On an examination of all the provisions of the Act and on taking into account the other relevant considerations, we are of the view that the non-occupation of the premises by a tenant must continue till the date of the filing of the application for his eviction on the ground covered bys. J3(2)(v). Accordingly, the appeal is allowed and the decision of the courts below is set aside. The parties shall bear their own costs throughout. N.P.V. Appeal allowed. A B ###### c D E F G