HABIB SETH Vs. KASHI NATH AND OTHERS

JUDGEMENT

(1.) THIS appeal has been referred to us for decision by a learned Single Judge on account of conflict between Hardei v. Wahid Khan : AIR 1954 All. 16 and Kamlakar and Ors. v. Gulamshafi : AIR 1963 Bom 42.

(2.) THE determinative facts are these : The accommodation in dispute is subject to the provisions of the U.P. (Temporary) Control of Rent and Eviction Act (hereinafter called the Act). It was the subject of a usufructuary mortgage. The mortgagor applied for redemption of the mortgage. A decree was passed Under Order XXXIV, Rule 7, Code of Civil Procedure in favour of the mortgagor. In execution Habib, the Appellant, made an objection. He said that he was a tenant from the mortgagee and that he was not liable to ejectment in execution. The execution Court upheld his objection and allowed delivery of symbolical possession over the accommodation to the mortgagor. The mortgagor went in appeal. The first appellate Court set aside the judgment of the execution Court and directed the ejectment of Habib as well.

(3.) WE shall leave this central point here for the time being and at once dispose of some minor points in the case. It is argued on behalf of Habib that even if his tenancy determined on redemption of the mortgage, he cannot be evicted from the accommodation because he is protected by Section 3 of the Act. It is urged that the word 'tenant' in Section 3 includes not only a person whose tenancy has not determined but also a person whose tenancy has determined by any of the modes provided for in Section 111 Transfer of Property Act. It is difficult to accept this broad argument. Although Section 3 is expressed in a general way, it appears to us that it prohibits the institution of a suit for ejectment of a tenant by a landlord. The words 'landlord' and 'tenant' are defined in Section 2 of the Act. 'Landlord' means a person to whom rent is payable and 'tenant' means the person by whom rent is, or, but for a contract, express or implied, would be payable for any accommodation. The significance of Section 3 should be grasped in the light of Sections 14 and 15 of the Act. Section 14 provides that no decree for the eviction of a tenant from any accommodation passed before the date of commencement of this Act shall, in so far as it relates to the eviction of such tenant, be executed against him as long as this Act remains in force, except on any of the grounds mentioned in Section 3. Section 15 provides that in all suits for eviction of a tenant from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 3. We think that the word 'tenant' in these two sections has been used in a broad sense. It means also a person whose tenancy has already been determined. As the Act is designed to prevent the eviction of tenants on account of scarcity of accommodation in certain areas, the word 'tenant' in Section 3 should be construed to include not only a person who is a tenant for the time being but also a person whose tenancy has already been determined by the landlord. However, it appears to us that this word cannot be given such a wide meaning as to include a tenant of the mortgagee whose tenancy has come to an end on redemption of the mortgage, for he was at no point of time a tenant of the mortgagor. The mortgagor was never his landlord. He would be neither the present nor the former tenant of the mortgagor.