# K. BALAKRISHNA RAO AND ORS v. HAZI ABDULLA SAIT AND 0RS - **Citation:** [1980] 1 S.C.R. 875 - **Court:** Supreme Court of India - **Decided:** 1979-10-10 - **Bench:** A. C. Gupta, E. S. Venkataramiah - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-balakrishna-rao-and-ors-v-hazi-abdulla-sait-and-0rs-7855 - **Pages:** 25 ## Headnote ,f Tiu: Ta111il Nadu Buildings (Lease and Rent Co11trol) Act 1960 as a1nended ' by tl1e A mending Act of 1964-S. 30(iii)-Scope of. In July, 1940 the plaintiff's father leased out the building of which he was the owner, to the defendant on a monthly rent of Rs. 950 for running a restaurant. Even after the expiry of the period of lease in July, 1943 the defendant continued to be in possession of the, building. By virtue of the Madras Non-residential Buildings Rent Control Order, 1946 the defendant became a statutory tenant and under the Order fair rent was fixed at Rs. 1680 p.m. In 1949 the 1946-0rder was replaced by the Madras Buildings (Lease and Rent Control) Act, 1949. On the death of his father in 1955 the plaintiff became the o\vner of the building. The 1949 Act was repealed and replaced by the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (the Principal Act). Section 30(iii) of the Principal Act provided that it was not applicable to non-residential buildings, the rental value of which, according to the assessment of the Corporation of Madras, exceeded Rs. 400 p.m. Even so the defendant continued to be in possession of the building. Since the building was not governed by the Principal Act. the plaintiff issued notice to the defendant to quit and instituted a civil suit in the City Civil Court on March 2, 1964 for eviction and damages. In the meantime in June, 1964, by an amendment Act, the exemption contained in s. 30 of the Principal Act iti respect of non-residential buildings \Vas withdrawn so that from ·tlien on non-residential buildings with a monthly rent of Rs. 400/- and above were ·also governed by the Principal Act. Sec:ion 3 of the Amending Act also provided that proceedings for eviction of the tenants of such non-residential buildings instituted in civil courts should be treated as having abated. In view of the am·endment in December 1964 the City Civil Court dis-missed the plaintiff's suit as having abated. Thereupon the plaintiff filed an application under O. IX, r. 9 of the Code of Civil Procedure to .set aside its order dismissing the suit as having abated. This application was allowed. The defendants filed additional written statements in the City Civil Court raising the plea that the suit had actually abated by Virtue 'of s. 3 of the Amending Act. In the ineantime as a result of the plaintiff's application under s. 24, Code of Civil Procedure the High Court withdrew the suit to its file (On the death of the original defandant, defendants 2 to 10 were impleadcd as his legal representatives). On the issue whether the suit had abated on June 10, 1964 by virtue of s. 3 of the Amending Act the trial judge of the High Court refused to record a finding and disposed- of the suit as if it was a fresh suit after the dealh of the A B c D E F G H .A B , D ·E F G H 876 SUPREME COURT REPORTS [1980] 1 S.C.R. original defendant. He passed a decree for possession and dan1ages· for use and oc.cupation. On appeal by the defendants the Division Bench of the High Court held that from March I, 1964 the original defendant was a trespasser, that he was not entitled to the benefit of the Principal Act, that with the coming into force of the Ameriding Act the building itself was outside the scope of the Principal Act, that s. 3 of the Amending Act did not apply to the suit and so it did not abate on June 30, 1964 and that on the death of th'e original defendant, defendants 2 to 10 were not entitled to the protection against eviction under the Principal Act as amended in 1973. Allowing the appeal, HELD : Section 3 of the Amending Act was applicable to the suit as it was a proceeding instituted in the City Civil Court on the ground that the building was exempt from the provisions of the Principal Act by virtue of s. 30(iii) thereof although no express allegation was made in the plaint to that effect. [891 Bl 1. (a) The vie"' of the Division Be~ch that s. 3 of tQe Amending Act was not applicable to this case Was erroneous ## Text _Characters 0–39,811 of 67,409. This is a partial read: ask again with offset=39811 for what follows._ 875 K. BALAKRISHNA RAO AND ORS. v. HAZI ABDULLA SAIT AND 0RS. October 10, 1979 [A. C. GUPTA AND E. S. VENKATARAMIAH, JJ.] ,f Tiu: Ta111il Nadu Buildings (Lease and Rent Co11trol) Act 1960 as a1nended ' by tl1e A mending Act of 1964-S. 30(iii)-Scope of. In July, 1940 the plaintiff's father leased out the building of which he was the owner, to the defendant on a monthly rent of Rs. 950 for running a restaurant. Even after the expiry of the period of lease in July, 1943 the defendant continued to be in possession of the, building. By virtue of the Madras Non-residential Buildings Rent Control Order, 1946 the defendant became a statutory tenant and under the Order fair rent was fixed at Rs. 1680 p.m. In 1949 the 1946-0rder was replaced by the Madras Buildings (Lease and Rent Control) Act, 1949. On the death of his father in 1955 the plaintiff became the o\vner of the building. The 1949 Act was repealed and replaced by the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (the Principal Act). Section 30(iii) of the Principal Act provided that it was not applicable to non-residential buildings, the rental value of which, according to the assessment of the Corporation of Madras, exceeded Rs. 400 p.m. Even so the defendant continued to be in possession of the building. Since the building was not governed by the Principal Act. the plaintiff issued notice to the defendant to quit and instituted a civil suit in the City Civil Court on March 2, 1964 for eviction and damages. In the meantime in June, 1964, by an amendment Act, the exemption contained in s. 30 of the Principal Act iti respect of non-residential buildings \Vas withdrawn so that from ·tlien on non-residential buildings with a monthly rent of Rs. 400/- and above were ·also governed by the Principal Act. Sec:ion 3 of the Amending Act also provided that proceedings for eviction of the tenants of such non-residential buildings instituted in civil courts should be treated as having abated. In view of the am·endment in December 1964 the City Civil Court dis-missed the plaintiff's suit as having abated. Thereupon the plaintiff filed an application under O. IX, r. 9 of the Code of Civil Procedure to .set aside its order dismissing the suit as having abated. This application was allowed. The defendants filed additional written statements in the City Civil Court raising the plea that the suit had actually abated by Virtue 'of s. 3 of the Amending Act. In the ineantime as a result of the plaintiff's application under s. 24, Code of Civil Procedure the High Court withdrew the suit to its file (On the death of the original defandant, defendants 2 to 10 were impleadcd as his legal representatives). On the issue whether the suit had abated on June 10, 1964 by virtue of s. 3 of the Amending Act the trial judge of the High Court refused to record a finding and disposed- of the suit as if it was a fresh suit after the dealh of the A B c D E F G H .A B , D ·E F G H 876 SUPREME COURT REPORTS [1980] 1 S.C.R. original defendant. He passed a decree for possession and dan1ages· for use and oc.cupation. On appeal by the defendants the Division Bench of the High Court held that from March I, 1964 the original defendant was a trespasser, that he was not entitled to the benefit of the Principal Act, that with the coming into force of the Ameriding Act the building itself was outside the scope of the Principal Act, that s. 3 of the Amending Act did not apply to the suit and so it did not abate on June 30, 1964 and that on the death of th'e original defendant, defendants 2 to 10 were not entitled to the protection against eviction under the Principal Act as amended in 1973. Allowing the appeal, HELD : Section 3 of the Amending Act was applicable to the suit as it was a proceeding instituted in the City Civil Court on the ground that the building was exempt from the provisions of the Principal Act by virtue of s. 30(iii) thereof although no express allegation was made in the plaint to that effect. [891 Bl 1. (a) The vie"' of the Division Be~ch that s. 3 of tQe Amending Act was not applicable to this case Was erroneous in the absence of a contention by the plaintiff that s. 3-was unconstitutional. It was not for the court to ask whether there was any justification for the legislature to make a contrary provision in respect of the suits of the present nature. There was every justification for enacting s. 3 in order to give protection to the tenants against whom suits for eviction had been filed for buildingg. which were brought within the scope of the Principal Ace by deleting cl. (iii) of s. 30 of the Principal Act. [886G, 887B] (b) In the context in which s. 3 of the Amending Act was enacted it could not be said that it was not possible to identify the proceedings to which that provision referred. In P. J. Gupta's case this Court held that a proceeding which had been insti{uted on the ground that a non-residential building was exempt from the provis'ions of the Principal Act by virtue of s. 30(iii) and was pending on the date of publication of the amendment in the official gazette would abate but did not consider the type of cases which would fall within the scope of 3 of the Amending Act [888A-B, 889G-HJ P. J. Gupta & Co. v. K. Venkatesan Merchant & Ors. [1975] 2 S.C.R. 401; held inapplicable. ( c) The words "instituted on the ground that such building or part was exempt from the provisions of the Principal Act by virtue of cl. (iii) of s. 30 of the Principal Act" should be construed in the context in which they appeared as referring to a proceeding which had been instituted in the light of s. 30(iii) of the Principal Act which granted exemption in respect of the buildings refer- . red to therein from the operation of the Principal Act. Any other COitltruction would defeat the object of the Amending Act. [890E-F] In the instant case the original plaint was filed on the basis that !he tenancy bad been terminated with effect from the expiry of February 29, 1964. The plaintiff prayed for the eviction of the defendant damages for use and occupation and not the fair rent fixed under the Rent' Control la\\'. The suit could be filed only because of the exemption contained in s. 30(iii) of the Principal Act ' K. B. RAO V. HAZI A. SA!T 877 because in the absence of such ex~mption no effective decree for ejectment A could be passed by the City Civil Court in view of s. 10 of the Principal Act. [890 G-HJ 2. Tbe original defendant was not a trespasser in possession of the premises after June 10, 1964. He became a statutory tenant of the premises and could not be evicted from· them except in accordance V.'ith the procedure specified in the Principal Act. The pOsition would not have been different even if a B· decree for eviction had been passed against hin1 before June 10, 1964 and the decree had not been executed or satisfied in full on that date [894 C-D] 3. (a) The building in question was a building within the meaning of that expression ins. 2(2) of the Principal Act on the date \vhen s. 3 of the An1ending Act came into force. [896 F-G] (b) The vie\v of the Division Bench that the suit property v.·as not a "building" within the meaning of s. 2(2) on the ground tha't there was no lease in force and hence it \\'as not let and that on that date the plaintiff had no intention to lease it and t~refore it was not ·to be let was. erroneous. A definition clause does not necessarily apply in all possible contexts in \Vhich the word may be found. The opening clause of s. 2 of the PrinCipal Act suggests that any expression defined in that section should be given a meaning assigned to it therein unless the context otherwise requires. [896 B~C] ""' 4. The original defendant became entitled to the protection of the Principal Act on June 10, 1964 and he could be evicted from the building only after an order was made by the Rent Controller. ~;The High Court did not pass an -Order that the suit had abated on June 10, 1964 till the death of the originc;il defendant on January 15, 1968. As a resμlt o,f ihe proceedings instituted by one or the other of the parties the case was treated as pellding although in law it was not open to the Court to proceed with it after June 10, 1964. [8960-897 Aj 5. It was not permissible for the trial court to treat the proceeding which had been instituted against the original defendant prior to June 10, 1964 as a live proceeding which could be converted into fresh suit instituted against defen-: dants Nos. 2 to 10 after the death of the original defendant. An amendment of the plaint by inclusion of ·a ne\lr' prayer or by addition of new parties cari ·be made only \vhere in the eye of law a suit is pending before a Court. When the suit filed on March 2, 1964 stood terminated with the coming into force of the Amending Act on June 10, 1964 there was no plaint in a live suit which .could be amended by the addition of new parties and the inclusion of a new prayer. Therefore the addition of parties which took place after the death ot the original defendant and the amendment of the plaint in 1973 requesting the court to pass a decree against defendants 2 to 10 who were not parties to the suit prior to June 10, 1964 on a cause of action which accrued su'bscqucnt to January 15, 1968 were without jurisdiction. [898A-D] · B. Baneriee v. Anita Pan, [1975] 2 S.C.'R. 774; held inapplicable. . . ' c D· G OVIL APPELLATE JURISDICTION : Civil Appeal No. 1172 of 1979. H' Appeal by Special Leave from the [udgment and Order dated 1-2-1979 of the Madras High Court in O.S.A. No. 75/77. 878 SUPREME COURT REPORTS [1980] 1 S.C.R. A G. Swaminatlzan, A. C. Mutfiana, M. Subramaniam, K. Rajendra B c D E F G II Chowdhary and N. N. Sfram for the Appellant. P. Chidamhnram, Shakeel Ahmed, M. N. Krishnamani and M. A. Malik for Respondent No. 1. S. V. Gupte and V. N. Ganpule for Respondents 2, 4-6. The Judgment of the Court was delivered by VENKATATIAMIAH, J. The question involved in this case is whether a suit for efectment filed in respect of any non-residential building or part thereof pending before any court on the date on which the Tam~ Nadu Buildings (Lease and Rent Control) Act, 1960 (Act No. XVIII of 1960) (hereinafter referred to as 'the principal Act') was amended by the Tamil Nadu Buildings (Lease and Rent Control) Amendment Act, 1964 (Act No. XI of 1964) (hereinafter referred to as 'the Amending Act') could have been proceeded with after that date. It arises in the following circumstances : Haji Mohamed Hussain Sait, the father of the plaintiff, Haji Abdulla Sait was the owner of a building situated in the city of Madras. He leased it out in favour of the defendant, K. Seetharama Rao under a lease deed dated July 8, 1940 for the purpose of runninll a restaurant known as 'Modem Cafe' in it for a period· of three years with effect from July 15, 1940 on a monthly rent of Rs. 950/-. The agreed period of lease expired in July, 1943 but the defendant continued to be in possession of the building as a tenant holding over. On the coming into force of the Madras Non-residential Buildings Rent Control Order in 1946, the defendant became a statutory tenant of the said building and fair rent in respect of it was fixed under that Order in the year 1946 at Rs. 1,680/- per month. The aforesaid O.rder was replaced by the Madras Buildings (Lease and Rent Control) Act. 1949 which was also applicable to the said building. On the death of the landlord Haji Mohamed Hussain Sait in 1955, under a partition amongst his heirs the plaintiff became the owner of the building. The protection which the defendant was enjoying under the Act of 1949 came to an end on the passing 0£ the principal Act by virtue of section 35 thereof which repealed the Act of 1949 and section 30(iii) thereof which provided that nothing contained in the principal Act was applicable to any non-residential building, the rental value of which on the date of the commencement of the principal Act as entered in the property tax assessment book of the municipal council, district board, panchayat or panchayat union council or the Corporation of Madras exceeded Rs. 400/- per mensem. The defendant, however, continued to lie in possession of the building by paying the rent every month. K. B. RAO v. HAZJ A. SAIT (Venkataramiah, l.) 879 The plaintiff issued a notice to the defendant terminating the tenancy with effect from the expiry of February 29, 1964 and as the building was not governed by the principal Act at that point .?f time, he instituted a suit in Civil Suit No. 730 of 1964 on the file of the City Civil Court, Madras on March 2, 1964 for eviction and for damages at the rate of Rs. 6,000/- per .month. The defendant filed his written statement on May 2, 1964 before the City' Civil Court. On June 10, 1964, the Amending Act came into force. The relevant part of it is reproduced below :- "2. Amendment of section 30, Madras Act XVIII of 1960.-In section 30 of the Madras Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the principal Act) - (i) in clause (ii) the word "or" occurring at the end shall be omitted; (ii) clause (iii) shall be omitted; (iii) in the Explanation, for the words, brackets and figures "clauses (ii) and (iii)'', the word, brackets and figures "clause (ii)" shall be substituted. 3. Certain pending proceedings to abate.-Every proceeding in respect of any non-residential building or part .thereof pending before any court or other authority or officer on the date of the publication of this Act in the Fort St. George Gazette and instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 of the principal Act, shall abate in so far as the proceeding relates to such building or part. All rights and privileges which may have accrued before such date to any landlord' in respect of any non-residential building or part thereof by virtue of clause (iii) of section 30 of the principal Act, shall cease and determine and shall not be enforceable : Prnvided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date mentioned in this section." The statement of objects and reasons appended to the Bill ·which ultimately became the Amending Act read as follows :- I "'?he Madras Buildings (Lease and Rent Control) Act, 1960 (Madras Act 18 of 1960), relates to the regulation of A B c D E F' G ff A • c D E F G H 880 SUPREME COURT REPORTS [1980] 1 s.c.R.. the letting of residential and non-residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in · the State of Madras. Under section 30 of the said Act, certain buildings are exempted from the provisions of the said Act. Any ~on-residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building_ or part exceeds four hundred rupees is one such building or part is exempted under the said section 30. It has been brought to the notice of the Government that the landlords of such non-residential buildings, taking advantage of the exemption, referred to above, demand exorbitant rents from the tenants of such buildings, who mostly belong to the business community, and threaten to evict the tenants when the latter do not concede to the demands for such rents. In ocder to provide relief to such tenants and to ensure that the interests of trade and industries do not suffer by demands of landlords for unreasonable and exorbitant rents, the Government consider that the exemption now available to any non-residential building or part thereof fetching a monthly rent exceeding four hundred rupees should be withdrawn. At the same time, the Government consider that there is no need to take away the exemption available at present to any residential building or part thereof fetching a monthly rent exceeding Rs. 250/-. The Bill seeks to achieve the above object." The result of tlte amendment was that the buildings which had been exempted from. the operation of the principal Act under clause (iii) of section 30 came within the scope of the principal Act and the relationship between landlords and tenants of such buildings wa~ to be regulated thereafter in accordance with the provisions of the principal Act. Apparently in order to give protection to tenants of such buildings against whom proceedings for eviction had been instituted in civil courts, section 3 of the Amending Act provided .that such proceedings should be treated as having abated. The proviso to section 3 of the Amending Act however provided that nothing contained in that section should be deemed to invalidate any suit oc proceeding in which the decree or order passed had been executed or satisfied in full before the date mentioned in that section, the said date being, June 10, 1964. ;rims by necessary implication, section 3 of the Amending Act was applicable even to the case of a building in respect of whi>:h a decree for eviction had been passed but had not been executed or satisfied in full before June 10, i 964. In view of the above provision, the City 1 ¥ K, B. RAO v. HAZI A. SAIT (Venkataramiah, J.) 881 Civil Court dismissed the suit as haviug abated by its order dated December 4, 1964. The plaiutiff filed two applications before the City Civil Court in March, 1965-one under Order 9 Rule 9 of the Code of Civil Procedure to set aside the order dated December 4, 1964 dismissing the suit as having abated and another under section 5 of the Limitation Act for condoning delay iu filing the application under Order 9 Ruic 9 of the Code of Civil Procedure. He also filed an ' , appeal in A.S. No. 266 of 1965 on the file of the High Court ot Madras against the order of the City Civil Court dated Decembe.r 4, 1964. Both the above applications were allowed by the City Civil Court on August 3, 1965. On August 13, 1965, the defendant filed an additional written statement before the City Civil Court raising the plea that the suit had actually abated by virtue of section 3 of the Amending Act. He also filed two revision; petitions against the order passed by the City Civil Court allowing the two application~ on August 3, '1965. In the meanwhile, on an application made under section 24 of the Code of Civil Procedure by the plaintiff, the suit was withdrawn to the file of the High Court and it was renumbered as C.S. No. 218 of 1965. It should be mentioned here that owiug to the alteration of the pecuniary jurisdiction of the City Civil Court, the suit stood transferred to the file of the High Court on May 1, 1964 itself. The defendant died on January 15, 1968. Hci had midii ~ will on January 7. 1968 appointiug executors and administrators in 'respect of his assets and issuing directions regarding the manner in which his assets should be disposed of. By an order dated July 20, 1970 made by the High -Court, defendants Nos. 2 to 10 who had been appointed executors and administrators were impleaded as legalj representatives of the defendant (who was shown as defendant No. 1 thereafter). The two civil revision petitions filed by tho defendant iigairiSf the orders passed on A u,;ust 3, 1965 by the City Civil Court and the Appeal Suit No. 266 of 1965 filed by the plaintiff against the order of the City Civil Court dated December 4, 1964 were disposed of by a Division Bench of the Higb Court of Madra~ by a common order on June 28, 1972, the relevant part of which read as follows :- "It is seen from the foregoing dates that at the time of the dismissal of the suit, the lower court had no jurisdiction , to deal with snit and in that view the counsel appearing on both sides represent that the order dismissing the suit as having abated may be set aside and the suit may be tried 011 the original side of this Court. We accordingly allow the appeal and set aside the order of dismissal of the suit on the ground that the City Civil Court had no jurisdiction to deal 2-743 SCI/79 A B c D E F G H 882 SUP11.EME COURT REPORTS [1980) 1 1>.C.lt.. A with the same on the date of dismissal and direct the suit In be posted on the original side for being dealt with." B c D It may be mentioned here that as stated earlier,, the suit had already been withdrawn to the file of the High Court under section 24 of the Code of Civil Procedure and had been numbered a~ Civil Suit No. 218 of 1965. In July, 1973, the plaintiff sought an amendment of the plaint praying for relief agains~ defendants Nos. 2 to 10 on the ground that after the death of the original defendant No. 1, they were not entiled to cqntinue in possession of the building as 'statutory tenants' and the plaintiff was entiled to a decree against them in that very suit. The above contention was based on the definition of the expression "tenant" in section 2 ( 8) of the principal Act as it stood then. After the amendment of the plaint, fresh written statements were filed by defendants Nos. 2 to 10 raising several pleas1 including the pleas which had already been raised in the written statements! filed by defendant No. 1 before the City Civil Court. On the basis otl' the pleadings, the trial con.rt framed the following issues :- "1. Is the suit maintainable ? 2. Has the plaintiff given proper notice of termination of the suit premises ? 3. Does the suit abate by reason of Act XI of 1964? E 4. Are not the defendants entitled to protection under the F G H Madras Buildings (Lease and Rent. Contrail.) Act, 1960, as amended by Act 23 of 1973 ? 5. Whether the tenancy came to an end upon the death of K. Seetharama Rao ? 6. Whether the defendants have no legal interest in the premises and consequently liable to be rejected ? J 7. To what reliefs are the parties entitled ? At the conclusion of the trial, the learned Judge held on issuei No. 1 that the suit was maintainable, on issue No. 2 that the notice to quit had validly terminated th~ tenancy, Qll. issue No. 4 that the defendants were not entitled to protection under the Madras Buildings (Leas~ and Rent Control) Act, 1960; on issue No. 5 that the tenancy had come to an end even on March 1, 1964 and on issue No. 6 that the defendants bad no legal interest in the premises. He, however, declined to record any finding on issue No. 3 which related to the question whether the suit had abated or not on June 10, 1964 by virtue of section 1 of the Amendi.1g Act. The learned Judge proceeded to dispose of the suit u if it wu a fresh 11uit instituted aftec the death of the original II J l • 1 K. B. RAO v. HAZI A. SAIT (Venkataramiah, 1.) 813 defendant No. I on January 15, 1968 even though there was no specific issue on the question whether i~ could be treated as such. Tus appears to be so in view of the following observations made by the trial Judge in the course of his judgment :- · "Under the above circnmstances, if the plaintiff files a suit today against the defendants he is entitled to get an executable decree for possession (without the necessity of going to the Rent Control Court) inasmuch as defendants 2 to I 0 had never become 'tenants' nuder the Act. Therefore even if the suit filed in the City Civil Comt is held to have abated, nnder the peculiar circumstances of this. case, I see no reason why I should not treat the suit before me to be a fresh one. It is to be seen that the application nnder section 24 of the Code of Civil Procedure for transfer Of the suit from City Civil Court to this court was consented by the defendants. In A.S. No. 266 of 1965, apart from setting aside the orde.r of abatement passed by the City Civil Court, this Court directed that the snit be tried cin the original side of this Court. Even if the City Civil Court had no pecuniary jurisdiction to deal with the matter and record abatement, the defendants could have pressed in A.S. No. 266 of 1965 for an order by this Court that the suit had abated. It is· needless to point out that the order that was unde.r appeal was one by which the City Civil Court held that the suit had abated. No doubt that was passed without jurisdiction, inasmuch as the pecuniary jurisdiction of that Court had been reduced. But it is o:iien to this Court to have held in the said appeal itself that the suit had abated. But the order was that the suit was to be tried on the original side. The suit had been originally filed in 1964, that is more than 12 years ago. · Under such circumstances, I think it is wholly unnecessary to drive the plaintiff to a fresh suit." On the basis of the findings recorded by him. the learned trial Judge passed a decree for possession and damages for use and occupation. The quantum of damages.was directed to be determined under Order 20, Rule 12 of the Code of Civil Procedure. Defendants Nos. 2 to 10 were, however, allowed three years' time to delive.r vadmt possession of the premises. Aggrieved by the decree passed by the trial Court, the plaintiff filed O.S.A. No. 23 of 1977 and defendant No. 2 filed O.SA. 75 of 1977 on the file of the High Court of Madras. The plaintiff in his appea! questioned the decree of the trial cour~ only to the extent it &ranted a period of three years to the defendants to delivet possession .A B c D E F G H 884 SUPREME COURT REPORTS [1980] 1 S.C.R. •. of the premises. Defendant No. 2 in his appeal questioned the entire decree. Both thei appeals came up for hearing before a Divisioin; Bench of the High Court. In the course of its judgment, the Division Bench formulated the following points for its consideration :- .B ·c n E F 'G "!. What was the status of late Seetharama Rao after the termination of the tenancy-whether he was a trespasser or a, tenant holding over or a tenant at sufferance ? 2. Did the suit building come within the purview of the Act and did late Seetharama Rao become a tenant as defined in the Act, on the coming into force of the Tamil Nadu Act XI of 1964? 3. Whether the suit instituted by the plaintiff abated in view of section 3 of the Tamil, Nadu Act XI of 1964 ? 4. Whether the "tenancy" came to an end upon the death of Seetharama Rao ? 5. Whether defendants 2 to 10 are entitled to protection against eviction from the suit property by virtue of the Act as amended by the Tamil Nadu Acf 23 of 1973 ?" The Division Bench held that the status of the defendant, Seetharama Rao from March 1, 1964 was that of a trespasser and he was liable to pay profits or damages for use and occupation to the plaintiff; that the defendant, Seetharama Rao was not entitled to the benefit of the principal Act by the coming into force of the Amending Act as the building itself wa> outside the scope of the principal Act and even if the building was within its scope, he was not a tenant as defined in the principal Act; that section 3 of the Amending Act did not apply to the suit in question and hence it did not abate on June 10, 1964 and that after the death of the defendant, Seetharamal Rao, defendants 2 to 10 were not entitled to the protection against eviction under the principal Act as amended by the Tamil Nadu Act No. 23 of 1973. Accordingly, it dismissed the appeal filed by defendant No. 2. The appea~ filed by· the plaintiff was also dismissed as a penod of 2! years out of th"! period of three years' time granted by the trial court had expired by the time the judgment in appeal was delivered. Aggrieved by the decree passed by the Division Bench, defendants 2 to 4 and 10 have filed the above appeal by special leave in this Court. The principal contention urged in support of the appeal before us .. ' was that the suit having abated on the coming into force of the Amend- • B ing Act, it was not open to the trial court to treat the proceedings before it as a new suit instituted after the death of the defendant, Seetharama Rao against defendants Nos. 2 to 10 and to pass a decree. In the K. B. RAO v. HAZI A. SA!T (Venkataramiah, 1.) 885 instant case, as noticed earlier, the trial court did not decide the quesA tion whether the suit abated on the coming into force of the Amending Act. The Division Bench of the High Court has held that the provisions of section 3 of the Amending Act were not applicable to the suit and, therefore, the question of its abatement did not arise. The undisputed facts in this case are : ( 1) Seetharama Rao held B the suit property as a lessee before the institution of the suit; (2) that the lease had 'been terruinated by the issue of a notice in accordance with section 106 of the Transfer of Property Act; (3) that a suit for eviction of Seetharama Rao was filed on March 2, 1964 before the City Civil Court, Madras which was competent to try it on the date of its . institution; ( 4) that by virtue of alteration of the pecuniary jurisdiction C of the City Civil Court and consequential provisions made in that connection, the suit stood transferred to the file of the original side of the High Court \vith effect from May 1, 1964 and that the suit was, therefore, deemed to be pending in law on the file of the High Court on June 10, 1964 on which date the Amending Act was published iri the official Gazette even though in fact the file was lyingi on that date with D the City Civil Court. The other proceedings which have been referred . to above in some detail are not relevant for the purpose of deciding the question whether the suit abated on the publication of the Amending Act in the Official Gazette. Section 2(ii) of the Amending Act ;repealed clause (iii) of section 30 E of the principal Act. Consequently any non-residential building, the rental value of which on the date of the commencement of the principal Act as entered in the property tax asse.sment book of the municipal council, district board, panchayat or panchayat union council or the Corporation of Madras, as the case may be. exceeded four hundred rupees per mensem was also brought within the scope of the p;rincipal F Act and the relationship between the landlord and tenant of such building came to be regulated, by it with effect from June 10, 1964. Section 3 of the Amending Act consists of three, parts. Under the first part, it directed that every proceeding in respect of any nonresidential building or part thereof pending before any court or other G authority or officer on the date of the publication of the Amending Act in the Fort St. George Gazette and instituted on the ground that such building or part was exempt from the provisiqns of the principal Act by virtue of clause (iii) of section 30 of the principal Act abated in so far as the proceedings related to such building o.r part .. Under the second part, it provided that all rights and privileg6S which might have H , accrued before such date to any landlord in respect of any non-residential building or part thereof by virtue of clause (iii) of section 30 of A B c E F G H 886 SUPJlEME COUllT JlEPOllTS [1980} 1 s.c.t. 1he principal Act would cease and determine and would not be enforceable. The proviso to section 3 which is the third part of that section provided that nothing contained in section 3 should be deemed to invalidate any suit or proceeding in which the decree Qr order passed had been executed or satisfied in full before the date mentioned in that section. On behalf of the plaintiff, three contentions were nrged in the appeal before the lligh Conrt in support of his case t]\at section 3 of the Amending Act was inapplicable to the present case. They were (i) that section 3 of the Amending Act had no reference to a suit at all; (ii) that even if it had any reference to a suit, it did not apply to a suit of the present nature and (iii) that even if i~ applied to a suit of the present nature still on the pleadings of the plaintiff. the present suit was not affected by the said provision. The Division Bench rejected the first contention of the plaintiff that section 3 had nq reference to a suit at all but it, however, upheld the case of the plaintiff on the basis of the other two contentions. Relying upon the language of section 10 ( 1) of the principal Act which provided that a tenant wasl not liable to be e\icted whether in execution of a decree or otherwise except in accordance with the provisions of that section or sections 14 to 16 and the decision of the Madras High Court in Theruvath Vitti! Muhammadunny v. Melepurakkal Unniri & Anr.(') and the decision of this Court. in B. V. Patankar & Ors. v. C. G. Sastry('), the Division Bench held that it was settled law that the principal Act itself did not prohibit the filing of a suit by a landlord for recovery of possession of the property from a tenant but only a decree passed in the said suit could not be executed e.xcept in accordance with the provisions of the principal Act and if that was the true legal position in respect of the buildings to which the principal Act applied from its commencement, there was no justification whatever for the Legislature making a contrary provision in respect of non-residential buildings to which the principal Act became applicable by virtue of the Amending Act. The Division Bench, therefore, held that section 3, of the Amending Act was not applicable to the case on hand. We are of the view that the above conclusion of the Division Bench is erroneous. It is not for the Court to ask whether ' there was any justification for the Legislature to make a contrary provision in respect qf the suits of the present nature. It was not the contention of the plaintiff that section 3 of the Amending Act was unconstitutional. In that situation, the High Court had no option but to apply the provision in question to the case on hand without going (I) (1949) I M.L.J. 4,2. (2) (1969). I S.C.'.ll. '91 J l • K. B. RAO v. HAZI A. SAIT ( Venkataramiah, J.) 8 8 7 mto the question whether thete was any justification tar enacting it. We are, however. of the view that in the circumstances in which the Amending Act came to be enacted, there was every justification for enacting section 3 in order to give protection to the tenants a~ainst whom suits for eviction had been filed from buildings which were brought within the scope of the principal Act by deleting clause (iii) of section 30 of the principal Act. The third contention of the plaintiff in support his plea that section 3 of the Amending Act was inapplicable was formulated thus : The provisions of the aforesaid section 3 would apply only when the three conditions viz. (i) that there should be a proceeding in respect of a non-residential building or part thereo;f; (ii) that that prqceeding should be pending before any court or other authority or officer on the· date of the publication of the Amending Act in the Fort St. George Gazetfe; and (iii) that that proceeding should have been instituted on the ground that such building or part thereof was exempt from the provisions of the principal Act by virtue of clause (iii) o~ section 30 of the principal Act, existed. It was argue.ct that since the present suit did not satisfy thei third requirement referred to above as the plaintifI bad not .referred to clause (iii) oJi section 30 of the principal Act in the plaint, sectiOn. 3 of the Amending Act should be held to be inapplicable to it. The Division Bench upheld the above contention observing that in order to attract section 3 of the Amending Act, there should be an allegation in the plaint that the building in question was exempt from the provisions of the principal Act by virtue of clausej (iii) of section 30 of the principal Act. In order to a.rrive at the above conclusion, it relied upon the decision of the Madras High Court in M/s. Raval & Co. v. K. G. Ramachandran & Ors.( 1) and the decision of this Court in P. J. Gupta & Co.· v. K. Venkatesan Merchant & Ors.('). The passage in the case of M/s. Raval & Co. (supra) on which the Division Bench relied was as follows : "It has to be immediately conceded that the wording of this section can by no means be described as happy, or free from any cloud of ambiguity. It is not very clear how a proce"ding could have been instituted 'on the ground that wch building or part was exempt from the provisions of the principal Act by virtue of clause (iii) al' s. 30', or what is U1e precise scope of the rights and privileges which may accrue to the landlord, and which are to cease and determine." (I) A.1.R. 1967 Mad. S7. (2) [197']2 S.C.R. 401. A B c D E F G H A B c ·D E F G H 888 SUPREME COURT REPORTS (1980) 1 S.C.R. We do not think that in the context in which section 3 of the Amending Act was enacted, it could be said that it was not possible to identify the proceedings to which that provision referred. In the case of P. !. Gupta & Co. (supra), the effect of section 3 of the Amending Act is set out as follows :- "The obvious result of section 30(iii) of the Act, as it stood before the· amendment, was that, if the rental value of a non-residontial building, as entered in the property tax book of the Municipality exceeded Rs. 400/- per mensem, a description which applies to the pmnises under consideration before us, the landlord would have no right to proceed against the tenant for evictio11 under section 10(2) (ii) (a) of the Act. Section 3 of the Amending Act, on the face of it, applies to two kinds olf cases. Its heading is misleading in so far as it suggests that it is meant to apply only to one of these two kinds. It applies : firstly, to cases in which a proceeding has been instituted "on the ground" that a nonresidential building "was exempt from the provisions of the principal Act" and is pending; and secondly, tq cases where "rights an