Sunday 14 December 2014

Whether suit for eviction of tenant from open land is maintainable under S 9 of CPC?



 It has been held that the tenant 
has   no   vested   right   under   the   Rent   Act,   as   the   tenant   has   only   a 
protective   right.     In   the   present   case,   undisputedly   no   proceedings 
were   instituted   under   the   Bombay   Act   (repealed   Act)   nor   were pending on the date on which the Bombay Act was repealed.
In view   of   above,  it  cannot  be   said   that  the   Courts  below 

have committed an error of law in passing a decree for possession by 
holding   that   the   suit   was   maintainable   invoking   the   ordinary   civil 
jurisdiction of the Civil Court under Section 9 of the Civil Procedure 
Code, though the suit was not filed under the Bombay Rents, Hotel 
and Lodging House Rates Control Act, 1947. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

 Shri Anil Dhondu Shinde,

Versus
Shri Govind Jagnnath Samant,

Coram : R.K. Deshpande, J.

Dated  : 14   August, 2014 
Citation; 2014(6) ALLMR 575,2014(6)ABR375

Regular Civil Suit No.657 of 1991 was filed by two brothers, 
namely, Anil Dhondu Shinde and Kishore Dhondu Shinde against the 
original   owner   of   the   suit   property,   namely,   Govind   Jagannath 
Samant, joined as the defendant No.1.  The lessee of the suit property, 

Laxman   Vishnu   Parulekar,   was   joined   as   the   defendant   No.2   along 
with his wife Chhaya Laxman Parulkar as the defendant No.3.   It is 
was for declaration that the defendant No.1 has no right to obstruct 
the entry of vehicles and disturb the possession of the plaintiff and 
also for a decree of injunction permanently restraining the defendants 
from disconnecting the electric supply and using the 10 feet road from 
Regular Civil suit No.814 of 1991 was filed by the owner of 
2.

the suit property.
the   suit   property   –   Govind   Jagannath   Samant   against 
Laxman Vishnu Parulekar and Chhaya Laxman Parulekar, joined as the 
defendant No.1 and the defendant No.2 respectively in the capacity as 
lessees of the suit property. Anil Dhondu Shinde and Kishore Dhondu 
Shinde were joined as the defendant Nos.3 and 4 and a decree for 
possession of the suit property was claimed against all the defendants 
on the ground that the defendant Nos.1 and 2 have sub­let the suit 
property to the defendant Nos.3 and 4 without prior written consent 
of   the   plaintiff­landlord   and   have   thereby   committed   breach   of   the 
terms   and   conditions   of   lease,   resulting   into   the   consequences   of 
termination of lease by issuing a notice dated 24­5­1991 under Section 
106   of   the   Transfer   of   Property   Act,   1882,   duly   received   by   the 

3.
defendants.
Special Civil Suit No.947 of 1993 was filed by two brothers 
Anil Dhondu Shinde and Kishore Dhondu Shinde against the owner of 
the suit property – Govind Jagannath Samant, joined as the defendant 
No.2 and the lessees Laxman Vishnu Parulekar and Chhaya Laxman 
Parulekar, joined as the defendant Nos.1 and 3 respectively.  It was a 

suit   for   specific   performance   of   the   agreement   to   sell   dated 
30­11­1990   and   declaration   dated   24­9­1991,   said   to   have   been 
executed in favour of the plaintiffs.
All   the   three   suits   were   tried   together   by   a   Court  of   Civil 
4.
Judge,   Senior   Division   at   Thane,   in   exercise   of   its   ordinary   civil 
jurisdiction under Section 9 of the Civil Procedure Code, 1908.   The 
parties   led   common   evidence   and   all   the   suits   were   decided   by   a 
common judgment on 30­3­2002.   The Trial Court dismissed Special 
Civil Suit No.947 of 1993 for specific performance of the contract and 
also   Regular   Civil   Suit   no.657   of   1991   for   injunction   filed   by   two 
brothers Anil Shinde and Kishore Shinde.  However, it passed a decree 
for delivery of possession of the suit property in favour of the owner 
Govind Jagannath Samant, who was the plaintiff in Regular Civil Suit 

5.
No.814 of 1990.
Anil   Shinde   and   Kishore   Shinde,   two   brothers,   filed   three 
appeals, namely, Civil Appeal Nos.160 of 2002, 161 of 2002 and 162 
of   2002   challenging   the   judgment   and   decree   passed   by   the   Trial 
Court in all the three suits on 30­3­2002.  All these appeals have been 
dismissed by the Appellate Court by its common judgment and order 

dated   27­8­2003.     The   decision   given   by   the   Appellate   Court   in 
appeals arising out of Special Civil Suit No.947 of 1993 for specific 
performance of the contract, and Regular Civil Suit No.657 of 1991 for 
injunction   –   both   filed   by   two   brothers,   Anil   Shinde   and 
Kishore   Shinde   have   attained   finality.     The   present   second   appeal 
challenges a decree for possession passed by the Trial Court in Regular 
Civil   Suit   No.814   of   1991,   as   has   been   confirmed   in   Civil   Appeal 
No.161   of   2002   by   the   Appellate   Court,   which   has   dismissed   the 
appeal.
6.
On 11­2­2004, this Court admitted the second appeal on the 
substantial question of law framed in Ground No.(e) of the memo of 
appeal, which is reproduced below :

That both the Lower Courts have acted against law and  
thereby   committed   an   error   in   giving   judgment   and  
further   ought   to   have   held   that   the   suit   of   the  
Respondent is not maintainable under law, as the suit is  
not filed under Bombay Rent Act.”  
“(e)

Except the aforesaid substantial question of law, no other substantial 
question   of   law   has   either   been   framed   or   has   been   urged   by   the 
The findings of fact recorded by the Courts below giving rise 
7.

appellants.
to the substantial question of law, need  to  be  stated.   The  original 
plaintiff   is   undisputedly   the   owner   of   the   suit   property.     By   a 
registered agreement of lease dated 4­2­1976, the property was leased 
out in favour of the defendant No.1 Laxman Vishnu Parulekar for a 
period   of   98   years   containing   Clause   (12),   which   is   reproduced 
below :
“12. Not to let out or give on licence any portion of the said  
building   to   any   person,   except   with   the   prior   written  
consent of the lessor, which consent may be granted in  
the sole discretion of the lessor.”
The   finding   of   the   Trial   Court   is   that   by   agreement   to   sell 

dated 30­11­1990, the defendant Nos.1 and 2 have agreed to transfer 
the suit property to the defendant Nos.3 and 4 without any authority 
and they are also illegally put in possession of the suit property.  It has 
also   been   held   that   defendant   No.1   has   sub­let   or   assigned   the 
possession   of   the   premises  in  favour   of   the   defendant  Nos.3   and   4 
without prior consent of the plaintiff.  It is also a finding recorded that 
the defendant No.1 had no right to sub­let the suit premises to the 

defendant   Nos.3   and   4.     The   Appellate   Court   has   held   that   the 
possession of the defendant Nos.3 and 4 is that of the trespassers.  It is 
the finding recorded that the defendant No.1 has committed breach of 
the terms and conditions of the lease­agreement [Clause No.(12)] by 
handing over possession of the suit premises to the defendant Nos.3 
and 4 and hence the plaintiff is entitled to a decree for possession of 
the suit property on the basis of the termination of lease in accordance 
with Section 106 of the Transfer of Property Act.  These findings are 
also confirmed in appeal by the Appellate Court.
8.
Accepting the aforestated findings of fact recorded by both 
the Courts below, Shri Gorwadkar, the learned counsel appearing for 
the appellants, proceeds to develop his argument.  He submits that the 
lease in respect of the  'open land' is covered  by the Bombay Rents, 

Hotel   and   Lodging   House   Rates   Control   Act,   1947   (for   short,   'the 
Bombay Act'), as it would be the 'premises' covered by Section 5(8) of 
the Bombay Act.   He submits that the grounds on which the Courts 
below   have   passed   a   decree   for   possession   and   maintained   it,   are 
covered by Sections 12 and 13 of the Bombay Act.  According to him, 
the   matter   is   fully   governed   by   the   Bombay   Act,   which   confers 
exclusive jurisdiction upon the Courts constituted under Section 28 of 

the Bombay Act.   He submits that the jurisdiction of the Court other 
than one referred to under Section 28 of the Bombay Act is expressly 
barred.  According to him, the decree in question has not been passed 
by a Court constituted under Section 28, but it has been passed by the 
Court of Civil Judge, Senior Division, Thane, in exercise of its ordinary 
civil jurisdiction under Section 9 of the Code of Civil Procedure read 
with Section 24 of the Bombay Civil Courts Act, 1869.  He, therefore, 
submits that the decree passed being in lack of inherent jurisdiction 
becomes nullity.  He has relied upon the decisions of the Gujarat High 
Court in Mohmad Husain Chotumiya Shaikh v. Taraben Manilal Shah, 
reported in (1991) 1 GLR 585; and Govindbhai Parshottamdas Patel v. 
New Shorrock Mills, reported in AIR 1984 Guj 182.
9.
Shri Ram Apte, the learned Senior Counsel appearing for the 

respondent No.1, has invited my attention to the stand taken by the 
appellants/defendant   Nos.3   and   4   in   their   written   statement   and 
submits that the objection raised by the Trial Court was regarding the 
pecuniary jurisdiction of the Court of Civil Judge, Senior Division to 
entertain, try and decide the suit.  According to him, the jurisdictional 
facts,   which   are   material   to   raise   the   question   of   lack   of   inherent 
jurisdiction because of the bar created under Section 28(1)(b) of the 

said Act, have not been pleaded in the written statement.  He submits 
that even if the suit was to  be tried under Section 28(1)(b) of the 
Bombay   Act,   it   would   be   the   same   Court   of   Civil   Judge,   Senior 
Division, which has passed the decree in the present suit.  He submits 
that the  forum  does  not change  and  no   prejudice   is  caused   merely 
because   the   specific   provision   invoking   the   jurisdiction   of   the   said 
Court   under   Section   28(1)(b)   of   the   Bombay   Act   has   not   been 
mentioned.     He   has   relied   upon   the   decision   of   the   Apex   Court   in 
Kamla   Devi   Budha  v.  Hem   Prabha   Ganguli,   reported   in 
(1989)   3   SCC   145,  for   the   proposition   that   the   instant   suit  can  be 
treated   as   one   filed   under   Section   28(1)(b)   of   the   Bombay   Act. 
Inviting my attention to the pleadings of the defendant Nos.1, 3 and 4, 
he submits that it is a case of surrender of tenancy by the defendant 
No.1,   the   original   lessee,   and   in   view   of   the   stand   taken   by   the 

defendant Nos.3 and 4, it is not a case of claiming protection of the 
Bombay Act.  They are held to be trespassers.  Shri Apte, the learned 
Senior Counsel, has relied upon the decision of the Division Bench of 
this Court in  Ratanlal  v.  Chanbasappa, reported in  AIR 1978 Bombay  
10.
216.
The rights and liabilities of the lessor and the lessee or the 

landlord and the tenant are governed by the general law of Indian 
Contract Act and the Transfer of Property Act, which are the central 
legislations.   The disputes in respect of such rights and liabilities can 
be resolved by invoking ordinary civil jurisdiction of the Civil Court 
under Section 9 of the Civil Procedure Code.   The rent laws are the 
special   enactments   made   by   the   State   Legislatures   to   provide 
additional  protection  to  the  tenants by  regulating  the  rates of  rent, 
repairs   of   premises,   eviction   of   tenants,   etc.,   and   provide   a   special 
machinery or the forum to decide the disputes in respect of it.   The 
special   law   does   not   abrogate   or   repeal   the   general   law   and   the 
remedies provided therein, but it merely keeps it in a dormant state. 
The landlord is not permitted to snap his relationship with the tenant 
merely by his act of service of notice to quit under Section 106 of the 
Transfer of Property Act, as is permissible under the general law.  
spite   of   service   of   notice  to   quit,  the   rent  law  says   that  the   tenant 
continues to be the tenant enjoying the rights of a lessee and cannot 
be evicted unless the grounds for eviction as are stipulated therein are 
made out.
The Bombay Rents, Hotel and Lodging House Rates Control 
11.
Act, 1947 was brought into force with effect from 19­1­1948 with a 

view to amend and consolidate the law relating to the control of rents 
and repairs of certain premises, or rates of hotels and lodging houses 
and of eviction and also to control the charges for licence of premises, 
etc.     It   was   made   applicable   to   the   Bombay   area   of   the   State   of 
Maharashtra.  Section 3 of the said Act deals with the commencement 
and duration of the Act.   Sub­section (1) therein states that the Act 
shall come into operation on such date as the State Government, may, 
by   notification   in   the   Official   Gazette,   appoint   in   this   behalf. 
Sub­section (2) therein states that it shall remain in force upto and 
inclusive   of   the   31st  day   of   March   2000   and   shall   then   expire. 
Sub­section (3) therein states that Section 7 of the Bombay General 
Clauses Act, 1904, shall apply upon the expiry of this Act or upon this 
Act or any provision thereof ceasing to be in force in any area, as if it 
had then been repealed by a Maharashtra Act.  Section 6 therein deals 

with the applicability of the Act to the premises let or given on licence 
for   residence,   education,   business,   trade   or   storage   in   the   areas 
specified in Schedule I under Part II of the said Act.  The definition of 
'premises'   under   Section  5(8)  includes  any   land   not   being   used  for 
12.
agricultural purposes.
The lease in question was in respect of 'open land', which was 

included in the definition of the 'premises' under Section 5(8) of the 
Bombay Act.  The provisions of the Bombay Act were applicable on the 
date of filing of the suit in question on 10­10­1991.  If the findings of 
fact   recorded   by   both   the   Courts   below   are   accepted,   then   on   the 
touchstone of the provisions of Sections 12, 13 and 28 of the Bombay 
Act, which were then in force, the jurisdiction of the Court of Civil 
Judge, Senior Division at Thane, constituted under Section 28 of the 
said Act, was attracted  and the jurisdiction of the Court other than it, 
was expressly barred.
The suit in question was entertained, tried and 
decided by the Civil Court in exercise of its ordinary civil jurisdiction 
under Section 9 of the Civil Procedure Code.   Obviously, the Court, 
which   decided   the   suit   in   question,   suffered   inherent   lack   of 
jurisdiction to entertain such a suit, in view of the bar of jurisdiction 
created under Section 28(1)(b) of the Bombay Act.    

Once it is held that the ordinary civil jurisdiction of the Civil 
13.

Judge, Senior Division under Section 9 of the Civil Procedure Code to 
entertain   the   suit   in   question   on   10­10­1991   was   barred   under 
Section 28 of the Bombay Act, the question as to whether a decree 
passed by such Court on 30­3­2002, i.e. after the repeal of the Bombay Act on 30­1­2000, can be treated as nullity, needs to be decided.
The   Legislature   of   the   State   has   brought   into   force   the 
14.


Maharashtra Rent Control Act, 1999 (for short, “the Maharashtra Act”) 
with   effect   from   31­3­2000,   on   which   date   the   notification   in   the 
Official Gazette was issued, as required by sub­section (3) of Section 1 
therein.   It applies to the premises let for the purposes of residence, 
education,   business,   trade   or   storage   in   the   areas   specified   in 
Schedule I or Schedule II in terms of sub­section (1) of Section 2 of 
the   said   Act.     Sub­section   (9)   of   Section   7   therein   deals   with   the 
definition of 'premises', which is reproduced below : 
“(9) “premises” means any building or part of a building let  
or   given   on   licence   separately   (other   than   a   farm   building)  
including,­­
(i)
the   gardens,   grounds,   garages   and   out­houses,   if  

any, appurtenant to such building or part of a building,

(ii) any fittings  affixed  to such  building   or  part of  a  
building  for the more beneficial enjoyment thereof,
but does not include a room or other accommodation in a hotel  
or lodging house.”
  
The   open   land   is   not   covered   by   the   definition   of     'premises', 

reproduced above.  Thus, the Act has no applicability to the leases in 
respect   of   open   lands,     whether   for   agricultural   or   non­agricultural 
purpose.  
Section 58 of the Maharashtra Act dealing with repeal and 
15.
saving being relevant is reproduced below :
“58. Repeal and saving
(1) On  the  commencement of this  Act, the  following  
laws, that is to say,­­
(a) the   Bombay   Rents,   Hotel   and   Lodging   house  
Rates Control Act, 1947;
(b) The Central Provinces and Berar Regulation of  
Letting   of   Accommodation   Act,   1946   including   the  
Central   Provinces   and   Berar   Letting   of   house   and  
Rent Control Order, 1949l and
(c) the   Hyderabad   Houses   (Rent,   Eviction   and  
Lease) Control Act, 1954; shall stand repealed.

(2) Notwithstanding such repeal­­

(a) all   applications,   suits   and   other   proceedings  
under   the   said   Acts   pending,   on   the   date   of  
commencement   of   this   Act   before   any   Court,  
Controller,   Competent   Authority   or   other   office   or  
authority   shall   be   continued   and   disposed   of,   in  
accordance   with   the   provisions   of   the   Acts   so  
repealed, as if the said Acts had continued in force  
and this Act had not been passed;

(b) the   provisions   for   appeal   under   the   Acts   so  
repealed   shall   continue   in   force   in   respect   of  
applications,   suits   and   proceedings   disposed   of  
thereunder;
(c) any appointment, rule and notification made or  
issued under any of the repealed Acts and in force on  
the date of commencement of this Act shall, in so far  
as they are not inconsistent with the provisions of this  
Act, be deemed to have been made or issued  under  
this   Act   and   shall   continue   in   force   until   it   is  
superseded or modified by any appointment, rule or 
notification made or issued under this Act;
(d) All prosecutions instituted under the provisions  
of   any   of   the   repealed   Acts   shall   be   effective   and  
disposed of in accordance with the law.”
In view of sub­section (1) of Section 58 above, the Bombay Act was 
repealed on 31­3­2000, that is the date on which the Maharashtra Act 
was   brought   into   force.     Sub­section   (2)   of   Section   58   is   a   saving 
clause, it takes care of all such transactions, which are in respect of all 
such   applications,   suits   and   other   proceedings   initiated   under   the 

Bombay Act and pending on the date of repeal of the said Act.  Such 
applications, suits or other proceedings are required to be continued as 
if the Maharashtra Act had never been passed.  
16.
Sub­section (3) of Section 3 of the Bombay Act states that 
Section 7 of the Bombay General Clauses Act, 1904 shall apply upon 
the expiry of the Bombay Act as if it had not been repealed by the 

Maharashtra Act.  Hence, Section 7 of the Bombay General Clauses Act 
being relevant, is reproduced below :  
“7. Where this Act, or any Bombay Act, or Maharashtra Act,  
made   after   the   commencement   of   this   Act,   repeals   any  
enactment hitherto made or hereafter to be made, then unless a  
different intention appears, the repeal shall not­­
(a) revive anything not in force or existing at the time at  
which the repeal takes effect; or
(b) affect   the   previous   operation   of   any   enactment   so  
repealed or anything duly done or suffered thereunder; or
(c) affect   any   right,   privilege,   obligation   or   liability  
acquired,   accrued   or   incurred   under   any   enactment   so  
repealed; or
(d) affect any penalty, forfeiture or punishment incurred  
in respect of any offence committed against any enactment  
so repealed; or
(e)
affect any investigation, legal proceeding or remedy in  

respect   of   any   such   right,   privilege,   obligation,   liability,  
penalty,   forfeiture   or   punishment   as   aforesaid,   and   such  
investigation,   legal   proceedings   or   remedy   may   be  
instituted,   continued   or   enforced,   and   any   such   penalty,  
forfeiture   or   punishment   may   be   imposed,   as   if   the  
repealing Act had not been passed.”
If the repealing enactment does not contain any saving clause or if the 
saving   clause   in   the   repealing   enactment   is   not   applicable,   then 

Section 7 of the Bombay General Clauses Act can be invoked.  Unless a 
different   intention   is   expressed   by   repealing   enactment,   the   repeal 
shall not revive anything not in force or existing at the time on which 
the   repeal   takes   effect   or   affect   the   previous   operation   of   any 
enactment so repealed or anything duly done or suffered thereunder 
or affect any right, privilege, obligation or liability acquired, accrued 
or   incurred   under   any   enactment   so   repealed   or   affect   any 
investigation, legal proceeding or remedy in respect of any such right, 
privilege,   obligation   or   liability,   and   such   investigation,   legal 
proceeding or remedy may be instituted, continued or enforced as if 
the repealing enactment had not been passed.
17.
The   effect   of   repeal   and   saving   clauses   contained   in   the 
repealing Act and Section 6 of the General Clauses Act, 1897, which is 

in pari materia of Section 7 of the Bombay General Clauses Act, 1904 
came up for consideration before the Apex Court in the case of Qudrat  
Ullah v. Municipal Board, Bareilly, reported in (1974) 1 SCC 202.  The 
Apex Court has laid down the following principles on the question of 
(1)
repeal of enactment and its effect. 
If the repealing enactment makes a special provision 

regarding   pending   or   past   transactions,   it   is   this   provision 
that   will   determine   whether   the   liability   arising   under   the 
(2)
repealed enactment survives or is extinguished.
In the absence of applicability of the saving clause in 
the  repealing statute,  the result would  be  that a  statute  is 
deemed not to have been on the statute book at all.
(3)
Section 6 of the General Clauses Act applies generally 
in the absence of a special saving provision in the repealing 
statute, for when there is one then a different intention is 
indicated.
(4) 
In   any   case,   where   a   repeal   is   followed   by   a   fresh 
legislation   on   the   subject,   the   Court   has   to   look   to   the 
provisions   of   the   new   Act   to   see   whether   they   indicate   a 
different intention.

(5)

What is observed by Section 6 of the General Clauses 
Act is – (a) previous operation of the repealed  enactment, 
(b)   rights,   privileges,   obligations   and   liabilities   acquired, 
accrued   or   incurred   under   the   enactment   repealed,   and 
(c) investigations, legal proceedings and remedies in respect 
of any such right, privilege, obligation or liability.
Applying   the   aforesaid   principles   of   law,   the   question   of   impact   of 

Section   58   of   the   Maharashtra   Act   and   Section   7   of   the   Bombay 
General   Clauses   Act   on   the   ordinary   civil   jurisdiction   of   the   Court 
under   Section   9   of   the   Civil   Procedure   Code   will   have   to   be 
considered.  
18.
Sub­section (2) of Section 58 of the Maharashtra Act makes a 
special provision regarding pending and passed transactions and it is 
this provision that will determine whether the liability arising under 
the repealed enactment survives or extinguishes.  It applies to all the 
applications, suits or other proceedings instituted under the Bombay 
Act and pending.  It does not apply to the applications, suits or other 
proceedings instituted under the law other than the Bombay Act.   In 
the   absence   of   applicability   of  
  sub­section   (2) 
of   Section   58   regarding   saving,   the   result   would   be 

that   the   repealed   enactment   is   completely   obliterated   from   its 
19.
inception as if it never existed.  
The   suit   in   question   was   neither   entertained   under   any 
provision of the Bombay Act, nor was instituted in the forum provided 
to resolve the dispute arising out of the operation of the Bombay Act. 
It   was   instituted,   tried   and   decided   under   Section   9   of   the   Civil 

Procedure Code, which is the law other than the Bombay Act.   The 
provision of saving under sub­section (2) of Section 58 of the Bombay 
Act would not, therefore, apply to the suit in question.   But for the 
provision of Section 28(1)(b) of the Bombay Act, the ordinary civil 
jurisdiction under Section 9 of the Civil Procedure Code was available 
to entertain, try and decide the suit in question.   Once a bar under 
Section 28(1)(b) of the Bombay Act is lifted as a result of repeal on 
31­3­2000, the effect would be that such a bar never existed even on 
the date of filing of the suit in question on 10­10­1991; as a result, it 
cannot be said that the decree passed by the Trial Court in question 
was without jurisdiction.
20.
Clauses   (a)   to   (e)   of   Section   7   of   the   Bombay   General 
Clauses Act would apply in the absence of there being any different 

intention  expressed   under   the  repealing   enactment.     In  the   present 
case, although the Bombay Act was applicable to the leases in respect 
of open lands, the repealing Act, i.e. the Maharashtra Act, does not 
apply to such leases; as a result, it is only the ordinary civil jurisdiction 
of   the   Court   under   Section   9   of   the   Civil   Procedure   Code,   which 
becomes available.   From the  date  of repeal of  the  Bombay Act on 
31­3­2000, the jurisdiction under Section 28(1)(b) of the Bombay Act 

ceases to be available.   Thus, the Legislature has made its intention 
very   clear   that   the   clauses   (a)   to   (e)   of   Section   7   of   the   Bombay 
General Clauses Act shall not apply to any proceedings in respect of 
leases of open lands.   In view of this, the decree passed by the Trial 
Court in question is not hit by clauses (a) to (e) of Section 7 of the 
Bombay   General   Clauses   Act   and   it   cannot   be   treated   as   without 
jurisdiction and nullity. 
21.
In the decision of the Apex Court in the case of Qudrat Ullah, 
cited  supra,  the  impact  of  Section 6  of  the  General  Clauses Act on 
Section 3 of the repealed Act was considered.   It was held that the 
repealed Act had a limited duration of operation.  Before the expiry of 
the duration of the repealed Act, it was repealed.   Section 3 of the 
repealed   Act   provided   that   no   suit   without   the   permission   of   the 

District Magistrate could be filed in any Civil Court against a tenant for 
his eviction from any accommodation except on one or more grounds 
specified therein.   The Apex Court has held that the survival of the 
right or continuation of the operation of the Act to the proceedings is 
all that is ensured and not the expansion or extension of that right.  It 
is held that the right is circumscribed in content to the conditions set 
out and limited in duration to the period beyond which the Act does 

not exist.   It has been held that to hold otherwise would be to give 
more quantum of right to the party than he would have enjoyed had 
the repeal not been made.  The Apex Court has held that the previous 
operation cannot be converted into sanctioning subsequent operation.
22.
As pointed out earlier, in the present case, the Bombay Act 
was brought into force on 19­1­1948 and sub­section (2) of Section 3 
therein stated that it shall remain in force up to and inclusive of the 
31st day of March, 2000 and shall then expire.  So, upon expiry of the 
Bombay Act on 31st March, 2000, the provisions of general law of the 
Indian Contract Act and the Transfer of Property Act along with the 
jurisdiction of the Civil Court under Section 9 of the Civil Procedure 
Code, come into operation from the suspended or dormant state.  To 
hold that the Trial Court acting under Section 9 of the Civil Procedure 

Code had no jurisdiction to pass a decree after repeal of the Bombay 
Act,   would   amount   to   extending   the   operation   of   the   Bombay   Act 
beyond the date of its expiry on 31st March, 2000.  The Apex Court has 
held that such a course is not permissible.
In the  decision of the  Apex  Court in  the case  of  Vishwant  
23.
Kumar  v.  Madan   Lal   Sharma   and   another,   reported   in 

(2006) 4 SCC 1, the Apex Court considered the question of difference 
between the rights of a tenant under the Rent Act and the rights of a 
landlord.  It has been held that the right of a statutory tenant to pay 
rent in exceeding the standard rent or the right to get the standard 
rent fixed are the protective rights and not the vested rights.  It holds 
that on the other hand, the landlord has rights recognized under the 
law of contract and the Transfer of Property Act and the date on which 
the   Rent   Act   was   withdrawn,   the   suspended   rights   of   the   landlord 
revive.  The Apex Court took support of the ratio of its earlier decision 
in Ambalal Sarabhai Enterprises Ltd. v.  Amrit Lal and Co., reported in 
(2001)   8   SCC   397,   concerning   the   rights   of   landlord   under 
Section 14(1)(b) of the Rent Act.  It was held that a ground of eviction 
based  on  illegal  sub­letting  under  Section 14(1)(b) of the  Rent Act 
would not constitute a vesting right of the landlord, but it would be a 

right within the meaning of Section 6(c) of the General Clauses Act, if 
proceeding for eviction is pending.   It has been held that the tenant 
has   no   vested   right   under   the   Rent   Act,   as   the   tenant   has   only   a 
protective   right.     In   the   present   case,   undisputedly   no   proceedings 
were   instituted   under   the   Bombay   Act   (repealed   Act)   nor   were pending on the date on which the Bombay Act was repealed.
In view   of   above,  it  cannot  be   said   that  the   Courts  below 

24.

have committed an error of law in passing a decree for possession by 
holding   that   the   suit   was   maintainable   invoking   the   ordinary   civil 
jurisdiction of the Civil Court under Section 9 of the Civil Procedure 
Code, though the suit was not filed under the Bombay Rents, Hotel 
and Lodging House Rates Control Act, 1947.  The substantial question 
of law is answered accordingly.
25.
There cannot be any dispute that if a case is made out and 
proved under Section 111(f) and (g) of the Transfer of Property Act 
regarding implied surrender and forfeiture  on the ground of tenant 
renouncing his character as such by setting up a title in third person or 
by claiming title in himself, the provisions of the said Act would not be 
attracted,   as   has   been   held   by   the   Division   Bench   of   this   Court   in 

Ratanlal's case, cited supra.  With the assistance of the learned counsel 
appearing for the parties, I have gone through the averments made in 
the plaint and the written statements of the defendant No.1 and the 
defendant Nos.3  and  4.    The  case  made  out by the  plaintiff  in  the 
pleadings is of an unauthorized sub­letting by the defendant No.1 in 
favour of the defendant Nos.3 and 4.  The case is not made out either 
of surrender of lease or forfeiture under Section 111(f) and (g) of the 

Transfer of Property Act, 1882.  The plaintiff has alleged breach of the 
terms   and   conditions   of   the   agreement.     Though   in   para   6,   the 
averment   is   that   the   defendant   No.1   has,   in   response   to   the   letter 
dated 24­5­1991, agreed to hand over possession of the suit property, 
the   same   has   not   been   handed   over.     Unless   there   is   evidence   of 
handing over possession by the lessee and accepting it by the lessor, 
the question of surrender of tenancy either implied or express would 
not arise merely on the basis of assurance to surrender the premises. 
The questions of implied surrender and forfeiture of tenancy are the 
questions of fact, required to be pleaded and proved.   No issue was 
framed   by   the   Trial   Court   and   the   Appellate   Court   has   also   not 
considered such aspect of the matter.  In view of this, no decree can be 
passed  for  possession  on the  ground  either  of  implied  surrender  or 
incurring of forfeiture by disclaimer.  The principles laid down by the 

Division Bench of this Court in Ratanlal's case, cited supra, would not, 
26.
therefore, apply to the facts of the present case.
In view of above, the second appeal is dismissed.   No order 
27.
as to costs.
At   this   stage,   the   learned   counsel   appearing   for   the 

appellants submits that the interim protection granted earlier by this 
Court be extended for a further period of eight weeks.  Shri Apte, the 
learned  Senior  Counsel   appearing  for  the  respondent  No.1, submits 
that   it   should   be   subject   to   condition   that   the   Receiver   and   the 
appellants hand over the vacant possession of the suit premises to the 
plaintiff after the expiry of eight weeks.
28.
In view of this, the interim protection granted by this Court is 
extended   for   a   further   period   of   eight   weeks   from   today,   after   the 
expiry of which the Receiver and the appellants shall hand over the 
vacant possession of the suit premises to the plaintiff, failing which the 
plaintiff shall be entitled to recover the same from the Receiver and 
the appellants with the costs of Rs.15,000/­ per day till the date of 
handing   over   possession.     This   is,   of   course,   subject   to   the   further 

orders by the Apex Court, if any further proceedings are filed.


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