Nagardas vs Deobai

V.R. Nevaskar, J.—These two proceedings one an appeal and the other a revision petition arise out of two suits for ejectment and arrears of rent and involve the same question although they are between different parties.

In both these cases the trial judge on an application from the plaintiff landlord passed an order u/s 5(1) of the Madhya Pradesh Accommodation Control Act requiring the tenant defendant to deposit the contractual rent from the date of filing of the suit onwards within the period specified in the order, The defendant in each of these case failed to make the deposit. Thereupon the trial Court passed an order in either of the suits terminating defendant-tenant''s right to defend the suit. The trial Court thereafter heard the plaintiff''s evidence and passed a decree in his favour.

Appeal preferred by the defendant tenant Nagardas S/o Gokuldasji was rejected. In the second case revision petition is directed against the order terminating defendant''s right to defend.

In both these proceedings the counsel for the appellant and applicant raised the same question namely that the provision contained in Section 5 (2) of the Madhya Pradesh Accommodation Control Act which brings about the termination of tenant''s right to defend the suit altogether not only with reference to the defences open to him under the special law namely Madhya Pradesh Accommodation Control Act, but also with reference to those open to him under the general law is ultra vires the powers of the State Legislature since it has the effect of contravening fundamental right of the petitioner guaranteed under Article 19 (1) (i) of the Constitution.

Mr. Sanghi who argued Civil Second Appeal No. 71 of 1959 applied upon the decisions reported in Chintaman Rao Vs. The State of Madhya Pradesh, ; State of Madras Vs. V.G. Row, ; Express Newspapers (Private) Ltd. and Another Vs. The Union of India (UOI) and Others, ; The State of West Bengal Vs. Subodh Gopal Bose and Others, and Dwarka Prasad Laxmi Narain Vs. The State of Uttar Pradesh and Others, , in support of his contention. The main line of reasoning suggested by the learned counsel for the view regarding ultra vires character of the impugned provision was that since the tenant had been granted special protective benefit under a special law which also made a corresponding concession in favour of the land lord, it was but proper to take away that benefit which the special law conferred upon the tenant in case he failed to carryout his obligation thereunder. But if the special law goes beyond this and cuts down the tenant''s right of defending the action on the grounds open to him under general law it went beyond its legitimate limits and involved unreasonable restriction upon the right of the tenant to hold his leas -holdar property. The lerned counsel admitted that there is no direct authority to support this like of reasoning but it is said that the observation by the Supreme Court in the Cases referred to and relied upon by him indicated the correctness of the aforesaid reasoning suggested by him.

On the other hand it was contended by Mr. Chaphekar who appeared in the same case on behalf of the landlord respondent that the provision regarding the tenant being required to deposit rent during the pendency of the action for ejectment on the grounds under the special law was perfectly reasonable. The tenant when negatives the existence of those grounds for his non-liability for ejectment the land lord is required to support it by evidence which the tenant may try to meet. This may result in loss of time over and above that required to fight the case under ordinary conditions. The land-lord''s right to rent needed protection under these circumstances. To prevent the tenant from committing default if a provision of a penal character is made merely with a view to secure regular deposit of rent which the tenant in any case is bound to pay, it cannot be said that it is unreasonable particularly when the provision contains sufficient safeguard for non-payment due to accidental reasons. It empowers the Court before closing the evidence to grant further time to make the necessary deposit. Learned counsel in this connection relied upon the decisions reported in Haradwar Singh and Another Vs. Satyendra Kumar Gupta and Another, AIR 1956 Surashtra 58 R. D. Trivedi vs. Hasmuklal and Ameerunnissa Begum and Others Vs. Mahboob Begum and Others,

In my opinion the contention raised by Mr. Sanghi for the tenant-appellant is untenable. It is no doubt indicated by their Lordships of the Supreme Court in Chintaman Rao Vs. The State of Madhya Pradesh, that ''''the determination by the Legislature of what constitutes a reasonable restriction is not final and conclusive" and that ''''it is subject to the supervision'''' by that Court and the High Court. Both these courts no doubt watch and guard the fundamental right guaranteed by the Constitution but at the same time we cannot lose sight of the note of warning which their Lordships sounded in the case of State of Madras Vs. V.G. Row, to the following effect:-

"It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the dicision should play an important part and the limit to their interference with Legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have in authorising the imposition of the restrictions, considered them to be reasonable.''''

The law regarding rent control had the effect of restricting fundamental right of the landlord to hold and dispose of property in the wav he likes. The restriction is considered to be reasonable and in the interest or the public as it seeks to remedy the social problem created by exigencies of the situation that the enonomic conditions in the society are unable to cope with abnormal scarcity of accommodation for the growing urban population. The restriction no doubt benefits a class of population namely the tenants but even then it can be said to be in the interest of general public. But in thus restricting the fundamental right of the land-lord the Legislature has to keep in view that the landlord is assured that if he needs the accommodation for a proper and reasonable purpose he would get it and further that he would at any rate be able to receive rent permissible by law for the period during which litigation continues if he so desires. The provision for thus assuring the landlord the payment of rent is the one contained in Section 5 (1) of the Madhya Pradesh Accommodation Control Act.

The question is whether the provision which requires the tenant to make the deposit during the continuance of the suit for ejectment involves transgression of his fundamental right to hold property by putting unreasonable restriction upon it ?

In the first place when the landlord is required to allege and establish grounds under the special law to obtain ejectment, the right which the tenant has in the absence of those grounds is not fundamental but statutory. Therefore the restriction contained in Section 5 (1) of the Act to pay rent on the pale of loss of right to defend the suit is not one as to his fundamental right but relates to his statutory right.

In the second place even assuming that it has some bearing under certain circumstances upon his fundamental lease-hold right, since he is in any case bound to pay rent there is no unreasonability in requiring him to do so. In fact even under the general law if a similar provision were made requiring the tenant to pay rent during the continuance of the suit for ejectment there would be no unreasonability in the restriction placed upon his lease-hold right. Besides this the Legislature in its wisdom and in its attempt to balance the restrictions upon landlord''s right u/s 19 (1) (f) and upon tenant''s lease-hold right by reason of its intervention, though it fit to make a provision of the nature in question This is also an important consideration. Moreover the Legislature in providing for closure of defences of the tenant for non-payment of rent or for default in doing so has taken care to avoid possible hardship where there is default due to accidental or proper reasons. It conferred sufficient power upon the Court to condone the default in appropriate cases.

It is thus difficult to hold that the impugned provision involves unreasonable restriction of tenant''s fundamental or any other kind of right.

All that the decision in Chintaman Rao Vs. The State of Madhya Pradesh, , State of Madras Vs. V.G. Row, and AIR 1952 SC 578, upon which Mr. Sanghi relies lay down is that the term ''reasonable'' with reference to Article 19 of the Constitution implies intelligent care and liberation, that is choice of course which reason dictates. There should not be excessive or arbitrary invasion of the fundamental right guaranteed under Article 19. The Legislature is expected to strike a proper balance between right guaranteed and social control permitted by the relevant clause of the said Article and that in considering the question of reasonableness of restrictions both the substantive and procedural aspects must be examined. It cannot be said that the impugned provision does not possess the quality of reasonableness as explained in those decisions. Mr. Sanghi''s contention further that non-payment or default in payment of rent required to be done in pursuance of an order u/s 5 (1) ought only to lead to deprivation of defence under special law and not under general law, does not appeal to me. In the first place it is not easy to draw distinction between the general and special law while dealing with a procedural matter intended to safe-guard landlord''s interest. In the second place it the tenant were deprived only of the right to defend with reference to provisions under the special law in case of non-payment of rent or default in payment of the same, then it would furnish a handle to the tenant to delay proceedings. He could go on paying rent for some time and fight the case on defences under the special law and thereafter could stop payment and yet claim the continuance of the defences under the general law. Such a provision if made would be all to the advantage of the tenant and landlord''s point of view would be practically ignored or not sufficiently taken care of.

For all these reasons I am not pursuaded to hold that the impugned provision is bad on the ground that it violates Article 19 (1) (f) of the Constitution.

No other point is pressed.

The appeal as well as revision petition are therefore dismissed with costs.