9911796707
TMI Blog2000 (3) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... open land as such shed had been constructed with permission. There is a well also situate in this land which is for the use of the occupants of the house in the premises and, therefore, clause 13-A of the Order would dis-entitle the respondent from obtaining the relief of a decree. The Civil Judge, Akola, passed a decree. The appellant preferred an appeal challenging the findings of the trial court that the premises in possession of the appellant is an open plot and not a house as defined in clause 13 of the Order. On 27th June, 1989 the Order was amended by substituting the word premises for the word house, wherever it occurs, and by this amendment, sub-clause (4-A) was also inserted in clause 2 whereby lands not being used for agricultural purposes also stood included in the definition of the premises. Thereafter the State of Maharashtra made another amendment which became effective from 26th October, 1989 and introduced clause 13-A in the Order to the effect that no decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any court or before any authority unless the landlord produces a written permission of the Controller as required by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1946 and the suit was decreed. The second amendment brought into force on 26th October, 1989 was not applicable to the plot as the same would be prospective and not retrospective. On that basis the High Court held that clause 2(4-A) and clause 13-A of the Order would not be applicable to the suit land and disposed of the writ petition. This order is in challenge before us. A contention has been raised before us that the expression house would also include land appurtenant to such building and, therefore, it is a part of the house and even if the amendment is not held applicable, the High Court should have examined the question whether the premises in question is a house as defined under the Act or not. Further at the time of hearing, a point, which was put forth before us, is that clause 13-A is applicable to a pending appeal even filed by a tenant. On behalf of the appellants reliance is placed on three decisions Amarjit Kaur v. Pritam Singh Ors., 1974 (2) SCC 363; Lakshmi Narayan Guin Ors. v. Niranjan Modak, 1985 (1) SCC 270, and H. Shiva Rao Anr. v. Cecilia Pereira Ors., 1987 (1) SCC 258, to contend that if a rent Act is made applicable during pendency of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions are not in issue before us. Now what we have to consider in this proceeding is whether the provisions of clause 13-A would be applicable to the present case or not. The High Court proceeded on the basis that there is no appeal filed or pending against the tenant on 26th October, 1989 when the amendment came into force and, therefore, it has to be inferred that no proceedings were filed or pending against the tenant as on that date. This view of the High Court does not take note of the language of clause 13-A of the Order. The effect of a decree passed by a court against which an appeal is filed has been considered in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, 1940 FCR 84, wherein the Federal Court explained that once a decree passed by a court has been appealed against the matter became sub-judice again and thereafter the appellate court acquired seisin of the whole case. It has been a principle of legislation in India at least from 1861 onwards that a court of appeal shall have the same powers and shall perform as nearly as may be the same duties as conferred and imposed on courts of original jurisdiction. Such a view was taken even before the Civil Procedure Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier in this order and relied on by the learned counsel for the appellants. Hence, the learned counsel for the respondents cannot derive any support from this decision. In theory the appeal is only a continuation of the hearing of the suit. Accordingly, the word suit in the Order has to be understood to include an appeal. The result is that at the time of the institution of the suit for eviction clause 13-A was not in force, but at the time of appeal such a clause is introduced, the tenant in appeal becomes entitled to its protection. We draw support for these propositions from the three decisions of this Court cited by the learned counsel for the appellants. Therefore, we are of the view that the High Court was not justified in holding that there was no appeal filed or pending against the tenant. In this case, although a decree for eviction had been passed in the suit, that decree was under challenge in a proceeding arising out of that suit in appeal and was pending in a court. Thus an appeal being a re-hearing of the suit, as stated earlier, the inference drawn by the High Court that no proceedings were filed or pending against the tenant as on the date would not be correct.. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
