Dularey Lodh v. The 3rd Addl. District Judge, Kanpur & Ors.

.. ' 74~ DULAREY LODH v. THE. IIIRD ADDL. DISTRICT JUDGE, KANPUR & ORS. _May_ _3,_ _1984_ [S. MURTAZA fAZAL,ALI AND A VARADARAJAN, JJ,] _U.P._ _Urban_ _Buildings (Regulation_ _of_ _Letting1_ _Rent_ _a1.d ·Eviction\ Act_ _1972, Section 9_ & _U.P._ _Urban_ _Build:ngs (Regulation_ _of_ _Letting. Rent and_ _Evict.ion)_ _(Amendinent) Act )9'76- Decree_ _of ev;.: ti on passed' again!d tenant under_ _1972_ _Act-Executing_ _court_ _holding_ _decree_ _fne-xecutable-'1976_ _Amendn1ent_ _Act_ _making ;ection_ _9· of_ _19]2 Act applici!blie_ _with_ _retrospective ef!ett--Decree of_ .. _eviction whethef :revived and_ _becorning_ _operative and executable-Doctrine_ _of·_ _eclipse-Appllcability_ _·of:_ A B c _Interpretation_ _of Statutes-Doctrine, of e'cliPse-Appllcability. of-When_ D _arises ._ The respondent 1and1ord filed a suit for ejectment in the year 1971 and obtained a decree for ejectment agatnst the appellant-tenant. By virtue of the provisions Qf the U.P. Urban Buiidings (Regulation of Letting, Rent and Eviction} Act, 1972; the cuse waS transferred to the court of -the Judge, Small Causes, who tried the case and passed a decree in ·ravour of the respondent. No appeal or revision was fil_cd· agaii1st tbe said- judgment. Thereafter, the.decree-holders filed an execiition petition. The apPeJJant, raised a jurisdictional objection, on the basis of tlie judgmeDt of th"e AJJaha~ bad High Court,.(K.K. _Saksena_ _v._ _S.N. Misra_ 1975·ALR 360) to the effect that the_ transfer of :the suit. before conferment Of the jurisdiction to the Judge, Small Causes Co~rt was.not ·coinpeteat and therefore, the decree \vas not exe·cutable. The respondent's counsel contended that the suit would have to be tried all over ag<i.in and the Court held that t-he decree was without jurisdiction. The decree remained inexecutable, but bY vjrtue of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) · Act, 1976 _s. 9 of the 1.972 Act was made applicable with reirosp~ctive E F G H effect to remove 'he.injustice and remedy the mischief _which_ had been caused to the decree-holders. As a re~u't -of the amendment, the aforfsaid judgment of the Allahabad High Court stood .over ruled and effaced . .Jn view of the aforesaid ·amendment, the respondents filed an application before the EXecuting Court for revival of the suit· and the decree, which was ·accept~d bYihe Court, and a Civil Revision ij.Jed against t_be siiid Order was dismissed by the Hish Court, -, ,744 SUPREME COURT. REPORTS [1984] 3 s.c.R. **A** **Jn** **the** **appcii.l** **lo** **this** **Coi.irt,** **it** **was** **contended** **on** **behalf** **of** **the** appellant, that in ~icw of the Al!ahabad High Court decision and the r97 2 **Act,** **the** **decree st9od set** **aside** **and** **could** **not** **be** **revived** **or** **made** **executable** .even by the 1976 A~endment Act. · I **B** **Dismissing the appeal,** i ' HELD : I. iThe courts below Juve rightly decided that after the 1976 Amen.drnetit Act tfe decree became legally executable. [747A] **2.** **By** virh·~ _**of**_ **the** **l 97 2** **Act the decree could not have** **been** **set** **aside or invaHdafed** **and** **the only** con~equcnce **wh.ich** **would ensue is that** **the** **decree** **wo'11d** **Pe** **lying** **dormant** **and** **could** **not** **be** ext!:ut~d. **OnCe** **the bar** C placed by the _19V_ Aet is removed, by virtue of the doctrine of eclipse th<> **decree will revive. and** **become at once operative** **and** **executable,** 1 [7SOH; 75 IA] I 3. 'Even i1 the 1972 Act were to apply, the utmost" consequence **would** **be** **that** th~ **decree would** **remain** **inexecutable** **but** **could** **not** **bo** **struck** **off** **from** **the** **reco.Tds** **of the case.** **This** **is a clear** **case** **Where** **the** **doctrine of** **eclipse would** **ap1)ly,** **and** _**{n**_ **view** **of the** **1976** **Amendment** **Act, the** **decree** **D** **will** **revive** **a·nd** ~ecome **·-executable.** **This** principl~ **has** **been** **applied** **by** **this** **Court. in** **severaf** **cases** **and** **·11.ows** **from** **the well-known doctrine of eclipse·.** .,\ ## ' . **which** **bas** **been rnunciated** **not** **only** **ip.** **India** **but** **in** **other countries also.** . - - . (7470-H) I . _**Bhikajl**_ _**t\{arain**_ _**Dhakrai·**_ **&** _**Ors.**_ _**v.**_ _**Stats**_ _**of**_ _**Madhya**_ _**Pradesh**_ **&** _**Anr;**_ [1955] 2 SCR S89, _Deep_ _Chandv'_ _SrQte_ _ofU.P._ _&Ors;_ (1959] 2 Supp. SCR **E** ·s, _Mahendra Lal.laini v._ _The State_ _of_ _Urtar_ _Pradesh_ & _Ors;_ [1963] I Supp. SCR 912, S _.A.balag;P v.·n._ _Dcvarajan;_ [198"4] 2 SCC 91, _Kai/ash Sankar v._ _Smt. Maya_ _Dev(;_ (1984] 2 SCC 91, referred to .. C1v1L ~~PELLATE Ju1so1cnoN : CiviJ Appeal No. 1574 of'l980. Appeal lby Special leave from the, Judgment and Orcler dated' **F** tlie27.719791ofthe Allahabad High Conrt i.n C.M.W .. No. Nil of 19.79. _Anil DJv_ _Singh,_ _S.L._ _Aneja_ and _KL._ _Taneja_ for the Appellant. _M.C. 'ftanchanda, Mrs._ _S,hobha_ _Dikshit and Pramod Swarup_ **G** for the Resiiondent. - ·. . The· J1ldgment of the Court was deliver< d by FAZAJr I ALI, .J. This appeal by special leave against a judgment of the Allahabad High Court. unfolds a te!Ha·\e plight of an unfor**H** .from tunate pi1larlitig~nt 1 to post to get the said decree executed who, after obtaining a deeree for ejectment, .. His·attempts was driven to· .from pi1lar 1 to post to get the said decree executed .. His·attempts to· get the sai4 decree executed were stalled sometimes by objections fl\ed by thi; tenant-appellant and, sometimes by amendments. made I DULAREY LODH _v._ DISTT. JU8GE _(Fazal Ali,_ _J.)_ **745** in the law with the resµlt that even after 13 years .of litigation the **A** landlord respondent was not able to get possession of the premises. This was because of a statutory amendment which made the d~cree obtained by him inexec\itable and was, therefore, lying dormant and ineffective. _J_ .The .legislature havin·g realised the hardship of such landlords came to their rescue by an amendment in 1976• to the UP. Urban Buildings (Regulation of Letting, Rent and Evi~tion) Act. 1972 (for short, to be referred to as the •19;2 Act') which was expressly given retrospective operation so as to revive the decrees which had become inexecutable. •When the appeal was heard .and the arguments were ccincluc)ed the respondents had made a good gesture in agreeing to. allow the tenant two years' time to vacate the premises on giving the usual undertaking and accordingly we adjourned the case to en.able the parties to coine ·to a settlement. However, we were informed by counsel for the parties that no settlem~t could be reached; hence we have now to decide the case on merits. And now to the facts of the case. The respondent.landlord filed a suit for ejectment in the year 1971 and obtained a de.cree for ejectment against the appellant-tenant. By virtue of the provisions of 1972 Act; the ca§e was transferred to the court of the Judge, Small Causes, who tried the case and passed a decree in favour of the respondent on 4;4.1973. It may be noted that the tenant did not object to the jurisdiction no• did he prefer and appeal or revision against the said judgment dated 4.4. 73 and the same became' final. Thereafter, the decree"holders filed an execution petition beiqg Execution Case No. 4 of 1973. The appellant, however, raised a jurisdictional obje?tion qn the basis of a judgment of the Allahabad High Court reported in _1975 (l.L R._ _360_ that the transfer of a suit before conferment of jurisdiction to the Judge, Small Causes. Court was not competent and, therefore, the decree was not execuiable. Counsel for the respondents unger some misconception conceded that the suit would have to be fried all over 'again and the Execution Case was, therefore, disposed of by an Order dated 3!.l.1976 passed by the Executing Court. The Court held that the decree was without 'jurisdiction. The respondents, however, took the stand that a conces sion on· a point of law was not. binding on him .nor was his Advocate authorised to make such a concession. However, the decre~ **B** **c** **D** E **F** **G** **H** **746** **A** **B** **c** **0** E, **F** ' SUPREM!l COURT RflPORTS [i984) 3 S.C R. remained inexecutal1Ie but by virtue of the U.p. Urban Buildings (Regulat10n of Lettmg, Rent and Eviction) (Amendment\ Act 1976 (hereinafter referred to as th; '197(, Ame:idment Act'), ;ectio~ 9 of the 1972 Act was made applicable with retrospective effect to remove the injustice and remedy the mischief which had been caused to the dec.ree-holders. The relevant portion of the said amendment may be extracted thus : **u26. ·** _**Transftory Provision**_ xx xx xx (6) The prov1s10n of section 9 of the Uttar Pradesh Civil Laws Amcndmeni Act, 1972 shall apply ahd shall be deemed always to hwe applied in relation to suits of the nature r~ferred to therein which before ·the commencement of th~t Act had been transferred to a competent court and were pending immediately before the date of commencement of that Act_in such tnn.cree court as they apply in relation to .suits which were pending in the court in which they were instituted:' Provided that any such suit decided by the transferee court between the commencement of the said Act and the commencement of this Act on the assumption that the said Section 9 did not apply to such suits shall be deemed to have been validly decided as if the mid section did not apply to such suits." As a result of the nmendment extracted above, the judgment· of the Allahabad High Court reported in 1975 A.L.R. 360 stood overruled and effaced. ##### ' .. ( ~· In view of this amq1dment, the respondents file.d an applica**G** tion before the Executing Court for revival of the suit and the decree which was accepted by the court and a civil revision filed against the said Order was dismissed by the Jigh Court; hence this appeal by special leave in this Cour.t. In order to understand the implication of the 1976 Amend**H** ment Act, it may be necessary to peruse s. 26(5) of the said Amendment, which is extracted thus DULAREYLODH _v._ 01s1r JUDGE _(Fnzal Ali,_ J.)' - "(5) Notwithstanding any judgment; d'ccree or order of any court or authority, the provisions of Rule 16 of the Uttar Pradesh Urban Buildings (Regulation of Letting, ·Rent and Eviction) Rules, 1972 shall be deemed to have been made under the pcovisions of the principal Act as amend,,d by. this Act as if this Act were in force on all material dates." 747 A B A close analysis of the above reveals that the inteniion of the legislature was to remove the injustice done to the landlords whose decrees b.ecame · inexecutable. The logical consequence which flows from an interpretation of ·clauses (5) and (6) of s. 26 of the 1976 C . Amendment Act would be that all decrees which hitherto had been lying dormant would revive an.cl the landlord· could get the decree executed. The Executing Court as also \he High Court upheld the conten- D tion of the respondents and directed execution of the decree. The sheet-anchor of the arguments ·of the counsel for the appellant was that in view of the Allahabad High. Court decision . (supra) and tho 1972 Act, the decree stood set a~ide and could not be revived or made executable ~ven by the 1976 Amendment Act. It is; however, impossible for us to acc;pt this contention, because the dominant i;iurpose of the 1976 Amendment. Act was to remedy the injustice done to the landfords (Jy the 1972 Act. Another flaw in· the argument of the counsel for the appellant is that it presumes th~t the decree became completely without jurisdiction and stood set aside. That, however, could not be the position in Jaw. Even if the 1972 Act were to apply, the utmost cons~quence would be that the decree would remain inexecutable but could not be .struck off from the records of the case. This is a clear case where the doctrine of eclipse. would apply and in view of the 1976. Amendment Act, the decree will r~vive and become executable. Tliis principle has been applied by this Court in sever~! cases and flows from the well· known ·doctrine of eclipse ·which has been enunciated not only in India but in other countries also. In Sutherland Statutory Construction by Horack (Vol. I, 3rd Edn.), the following pa~sages may be noted : "In a majority of the jurisdictions the courts r~.cosnise E F G H 748 A **B** c SUPRD,!E COURT REPORTS (1984) 3 S.C.R. ' the mistake of the legislature and try to determine and give ·effect to its intent. If the legislature .has expressed its purpose intelligibly in the amendatory act and provided fully upon the subject considered, a majority of courts hold that it is a reasonable conclusion that the legislature did not intend to make the enforcement of the statute contin gent on the continued existence of the repealed -statute ... (p. 329) 1'he unconstitutional act physically exists in the ofticial statutes of the state and is there available for reference, and as it is only unenforceable, the purported amendment is given effect. If the law as amended is constitutional, it will be enforced." (p. 335) ' ' _t_ D E F G **H** It is true that the American Constitution as also the· American coum have been most reluctant to apply the doctrine of eclipse but this Court has pointed out in more than one case that the American view cannot be applied to our Constitution. The matter first came ·up. for consideration before this Court in _Bhikaji. Narain Dhakras_ _&._ In _Deep_ _Chand"' State of_ _U.P._ _&_ _Ors.(')_ simi!ai:, observations (1) [19SS] 2 SCR _589._ (2) {1959J 2 Supp. SCR~8. _Ors._ v. _Stqte_ _of Madhya_ _Pradesh_ _&_ _Anr.C')_ where in a similar situation the doctrine of eclipse was fully applied and the court observed thus: "The true position is that the impugned Tu.w became, as it were, eclipsed, for the time being, by the (undamental right. The effect of the Constitution (First Amendment) Act, 1951 )Vas to remove the shadow and to make the impugned Act free froI\l a!l blemish or infirmity ...... Such · laws were not dead for all purposes .. They existed for the purposes of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non-citizens ...... Jn our judgment, after the amendment, of clause (6) of Article 19 on the I8ih June 1951, the impugned Act ceased to be unconstitutional and. became revivified and enforceable against citizens as well as against non-citizens ... But after the amendment of clause (6) the impugned Act immediatei'y became fully operative even as against the **citizens."** PULAREY LODH _v._ PISTT iUDGE _(Fazal Ali,_ _J.)_ . were made by this Court· which may be extracted! hus : "As, however, our learned Brother has thought fit to embark upon a discussion of these questions, we desire to guard ourselves against being understood as accepting or acquiescing in the conclusion that the doctrine of eclipse cannot apply to any post-Constitution Jaw. A post-Constitution law may infrlnge either a fundamental right .conferred on citizens onJy·or a fundamental right conferred on any person, citizen or non-citizen. In the first case the law will not stand in tlie way of the exercise by the citizens of that fundamental right and, . therefore, will ·not have any operation on the rights of the citizens, but it will be quite - effective as regards non-citiiens. _Jn_ _such a case, the funda-_ _mental right will,_ _qua_ _the citizens,- throw a shadow_ _on_ _the_ _law which will_ ~evertheless _be_ _on_ _the Statute Book as_ _a valid_ _law binding on_ _non· citizens and·_ _if_ _the shadow is_ _removed. by_ _a constitutional amendment, the_ _law_ _will immediately_ _be_ - _applicable even_ _to_ _the citizens w'thout being re-enacted ......_ In other words, \he doctrine of eclipse ·as explained by this Court. in _Bhikaji Narain Dhakras_ v .. _The State of_ _Madhya_ _Pradesh_ [1955 (2) SCR 589] also applies to a post-Constitution law o.f this kind .... ;. · - · A pre-Constitution law, stating in the words of Pas, J., as he theri was, exists notwithstanding that it doe.s not exist v;ith respect to the future exercise of the fundamental rights. 'Jhat principle has been extended in this decision, by invoking the doctrine of eclipse. _A«_ _ihe_ _law_ _·existed on_ _the_ _statute book_ _to ·support pre-Constitution acts, the Court held_ _that the said law was_ _eclipsed.for the time being by one or_ _other of the fundiimental rights and_ _when_ _the shadow was_ __removed by_ _the amendment of the Constitfltion, the impugn-_ _ed Act became free from_ ~ll _blemish or infitmity."_ ·• (Emphasis ours) **749** **A** **B** #### • E F In _Mahendra_ _Lal Jaini_ v. _The_ _State.of Uttai' Pradesh_ &.Ors.( [1] l **G** this Court held as follows : ###### . **H** "The pre·ConstitutionJaws which were perfectly valid when th~y were passed and the existence of.which is recognised. in the opening words. of Art. 13(1) revive by the removal of the inconsistency in question. _This_ _in_ _effect is_ (I) [1963).,J Supp. SCR 912 • 750 A B ., D E F G H (t l [1984] 2 sec 91. \2l] {1984) 2~SCC 91. SUPRBMB COURT REPORTS (1984] 3 S.C.R. _the,doctrine nf eclipse, which,_ _if_ _we_ _may say so_ _with respect,_ _was applied_ in _Bhikdji Narain's_ case.;.... . .. - . So far as pre-Constitution laws' are concerned, the amendment of the Constitution which removes the inconsiste:ticy will result in the revival of such laws by virtue of . the doctrinepf eclipse, as laid down in _Bhikaji Narain' s_ case, for .the pre-existing laws Were not still-born ~nd would still exist though eclipsed on account of the . inconsistency to govern pre-existing matters." - (Emphasis supplied) ' ,In two recent decisions, this Court has applied the doctri~e of eclipse .in similar situations. In _S. Anhalagan_ v. _B._ _Devarajan(_ _[1]_ _)_ the following observations were made : "Unless.the practice of the caste makes it necessary no expiatory rites need be performed and: ordinarily, he regains his ca~te unless the community does not accept him ...... The practiae of castr however irrational it may - appear to our reason and however repugnant it may appear to our moral and social sense, is so deep-rooted in the Indian people that.its mark does not seem to disappear on conversion to a different religion,, _If it_ _disappears,_ _it_ _dis-._ _appears only to reappear on reconversion."_ (Emphasis ours) Similarly, in the case of _Kai/ash 'Sankar_ v. _Smt. Maya Devi,(_ _[1]_ _)_ to which one of us (Fazal Ali, J.)was a party, this Court made the following observation: "In our opinion, when a person is converted to Chris: tia'nity or some other religion the original caste remains under ·eclipse and as soon as during his/her life-time the . person is reconverted to the o,riginal religion the eclipse . . disappears and the caste automatically revives." Thus, applyipg the rule of law . laid down by this Court, \hero would . be no difficulty in upholding the judgments of the courts below in this particular appeal. By virtue ~f the 1972 Act, the decree could norhave been set aside or invalidated and the only consequence whfoh would ensue is that the decree would belying dormant and could not be executed. Once the bar placed·. by th~ 1972 Act is I _j.__ _\.:_ ### . ' '. biJiAR.EY LODH v. 01.sn JUDGE _(Fazal Ail,_ _J.)_ . _151_ removed, by virtue of the doctrine of eclipse the decree will revive '' and become· at one' operative ·an<l executable. The courts below have rightly decided th1t after the 1976 Amendment Act the decree became legally executable. · . Some other arguments were also advanced on behalf of the appellant but in view of the expresE language of the 1976 Amend ment Act and the doctrine of eclipse, they seem tobe futile. For the reasons given aboue, we uphold the decree for eject- • men! passed by the courts below ag~inst.the appf!llant and dismiss the appeal with costs. As the· litigation has taken more than a decade; it is hot possible for us to giv~ any time to the tenant for vaqating the premises and the decrre may now be executed forthwitla and the landlord put into possession. NV •• K. _Appeal dismissed ._ ., A B c _)_ .. _j_