Input:
ppeal No. 147 of 1956.
Appeal from the judgment and decree dated August 7, 1952, of the Madras High Court in A. section No. 809 of 1947, arising out of the judgment and decree dated October 31, 1947, of the Sub Judge, Tenali in 0.
section No. 64 of 1944.
K. R. Chaudri, T. section Venkataraman and K. B. Sharma, for the appellants.
N. Subramanyam and T. Satyanarayana for the respondent.
January 15.
The Judgment of the Court was delivered by KAPUR J.
This is an appeal against the judgment and decree of the High Court of Madras varying the decree of the trial court.
The appellants were the defendants in the trial court and the, respondent was the plaintiff who was represented by the sole trustee appointed by the Hindu Religious Endowment Board.
The suit was brought by the deity through the sole trustee for recovery of Rs. 3,480 towards the arrears of income of the property in trust for the years 1942 44 and for a direction for future payment at the rate of 160 bags of paddy per year or its equivalent i.e. Rs. 1,680.
The plaintiff alleged that the property in dispute constituted a specific endowment for Kalyanotsavam of the deity and that the defendants who were trustees had committed default in carrying out the purpose of the trust.
The prayer was for a decree for the recovery of expenses of Kalyanotsavam and of the feeding charges.
The defence raised was 98 770 that the inam was a personal grant for driving the car of the deity on the festival days and that it was not a specific trust or an endowment for the benefit of the idol.
In other words it was a grant of the inam burdened with service to the god.
There were other pleas raised in regard to jurisdiction, res judicata and adverse possession.
The trial court held that the grant, was a specific endowment for the Kalyanotsavam of the deity but the appellants were not bound to spend the whole income of the lands for the purpose.
It decreed a sum of Rs. 200 per year as adequate provision for the performance of the service of Kalyanotsavam.
The other pleas raised were decided against the appellants.
In the High Court the only point argued was regarding the nature of the grant and as in the opinion of that court a general trustee could not call upon a specific trustee to pay any money 'except on the ground of expending that amount and there was no proof of this expenditure the prayer as contained in the plaint was not granted and the High Court was also of the opinion that as all the facts had been pleaded and there were no new facts to be alleged and the parties were alive to the real nature of the dispute and had even the issues framed on that very question, it allowed the plaint to be amended by the addition of the prayer for a declaration that the properties in the schedule and the income thereof formed a specific endowment for the due performance of the services of Kalyanotsavam of the deity and feeding charges and other expenses incidental thereto and the appellants were therefore liable to pay the entire income.
It was also of the opinion that all the available evidence had been adduced by both the parties and that the prayer for declaration was only a formal relief which flowed from the allegations in the plaint.
It neither involved a change of the cause of action nor did it require a fresh trail and therefore the petition for amendment was allowed by the addition of the prayer stated above.
In this appeal counsel for the appellant has raised hreet points: (1) that the suit wag not maintainable; 771 (2)that the amendment should not have been allowed and (3) the grant was a personal grant to the appellants burdened with the provision for service and it was not a specific endowment.
As far as the first question is concerned it has not been shown as to how the suit was not maintainable.
The question of amendment, in our opinion, was rightly decided by the High Court.
As held by that court all the necessary allegations had been made in the plaint and the requisite pleas had been raised by the appellants; an issue was framed on the question and the parties were fully cognizant of the points in controversy and the necessary evidence was led by the parties.
In this view of the matter the High Court was right in allowing the amendment by the addition of a prayer in the prayer clause.
We then come to the question of the nature of grant which on a consideration of the documentary evidence and other evidence has been found by both the courts below to be a specific endowment for Kalyanotsavam.
This finding was challenged by the appellant.
For that purpose it is necessary to consider the inam papers which form the main and basic documentary evidence by the appellant.
Inam registers have always been treated as evidence of the utmost importance.
The first document to be considered is of the year 1859 60 which is a copy of the inam statement made by N. Buchayya, the ancestor of the present appellants.
Column 1 of this document shows the names of the inamdars and the enjoyers to be " N. Buchayya the present enjoyment is towards the Kalyanotsavam " of the deity.
Columns 4 & 5 give the residence and name of the original inamdars.
In Column 5 are given the particulars of the family of the then enjoyers and the entry is for the deity 's Kalyanotsavam.
In Column 6 is given the name of the grantor who gave the land to the grantee and " with the income therefrom he has been performing Sri Swami Varu 's Kalyanotsavam from that time ".
Columns 7 9 give the extent of the land.
In Column 11 particulars relating to the present enjoyment are to be given and the entry was Sri Swami Varu 's 772 Kalyanotsavam.
In Column 12 it was shown that the grant was revenue free and the land was under the cultivation of Buchayya the income of which was Rs. 11 per annum.
The entries show that the inam was granted as a specific endowment for the Kalyanotsavam of the deity and the amount was spent in the services of the deity.
The next document to be considered is a copy of the inam fair register of May 16, 1860.
The High Court finding that some of the entries in that document were not clear sent for the original register from the Collector 's office and it was found that some of the entries were not in the original at all.
In Column 8 the words 'driving the car ' were not to be found and the remarks in Column 12 to the effect that 'the purpose for which the inam was granted is not stated ' were not in the original register.
In Column 2 of this document the general class to which the inam belonged is shown as religious endowment.
Column 8 relates to the description of the inam and the entry is 'For service in the pagoda The service is performed '.
Columns 9 11 relate to tenure.
Column 12 has already been discussed.
In Column 9 it is shown as free of tax.
In Column 13 the name of the original grantee is shown to be the ancestor of the appellants.
In Column 15 the entry is: 'In fasli 1223 Viresalingam 0 8 8 In fasli 1236 Nanduri Vissanna Buchayya for service during the festival of the pagoda 0 8 O '.
In Column 21 the entry contains the following: 'To be confirmed and continued so long as the service is performed.
In fasli 1216 the inamdar is entered as village servant but it is ascertained and is entered in fasli 1256(?), that service is performed from a long time in the pagoda '.
In Column 22 it is stated 'confirmed ' and below that is given the number of the title deed to be T.D. 243.
From these documents and from the fact that neither the sanad nor the inam title deed was produced and taking into consideration some admissions of the predecessors of the appellants where it was admitted that they were dharmakartas of the Kalyanotsavam and had been performing that service the High Court came to the conclusion that the inam 773 lands in dispute were endowed for Kalyanotsavam and other purposes incidental thereto and constituted a specific trust and the appellants were trustees thereof.
It was urged by counsel for that appellants that the words in the inam register that the grant was tocontinue as long as the service is performed were indicative of the fact that the grant was not to the deity but to them individually with the added obligation of spending from out of the income on the particular service to the deity.
A combined reading of the two documents i.e. statement of the ancestor of the appellants and the inam register shows that the grant was a specific endowment and that the lands were endowed for the purpose of Kalyanotsavam and for other purposes incidental thereto and constituted a specific trust.
The courts below have found this to be the nature of the trust and even if two inferences were possible from the reading of these two documents there is no reason why the view taken by the courts below should be interfered with particularly when there are admissions by the predecessors of the appellants which support the view of the courts below.
Besides those words do not necessarily mean that the grant was to the individual with the added obligation to spend on the performance of service.
In the present case it is not stated in the inam fair register that the grant was to be confirmed in favour of Buchayya and continue so long as the service was performed.
This kind of language used in inam registers has been discussed in some decided cases in the Madras High Court e.g. Hindu Religious Endowments, Madras vs Thadikonda Koteswara Rao(1) where this distinction Was prominently brought out between the words " to be, confirmed so long as the service is performed" and " to be confirmed to the party so long as he continues the performance of the services".
The latter was held to be a personal grant and the former was not so held.
We are therefore of the opinion that the finding of the High Court that the grant was a specific endowment for Kalyanotsavam of the deity and therefore a specific trust and not a grant to the appellant with (1) 774 the added obligation of spending on the service must be accepted to be correct.
The next question for decision is as to what portion of the income of the inam lands is to be expended on the service to the deity.
The courts below are not in accord on this point.
The trial court held that Rs. 200 out of the income should be adequate for the purpose and the High Court applied Cy Pres doctrine and held the whole income to be for the deity even though it exceeded the expenditure for the particular service.
One of the facts which emerges from the inam register is that when the grant was made the specific charitable payments exhausted the income of the property and it is a fair inference to draw therefrom that the intention was to devote the whole income to charity and any subsequent increase in the value of the property accrues to the charity; Hindu Religious Endowments vs Thadikonda Kotesuwararao (1); Tudor.
on Charities (5 Ed.) p. 164; Laws of England Vol. 4, para 624, p. 303.
The High Court was therefore justified in holding that the whole of the income was to go to deity, thus varying the judgment of the trial court that only a portion of it was to be so employed.
The High Court applied Cy pres doctrine relying on N. Sankaranarayana Pillayan & Ors.
vs The Board of Commissioners for Hindu Religious Endowments, Madras (2).
It was there held that where the grant is to the deity and the income is ear marked for the services for which the specific endowment is created, if there is a surplus which cannot be spent on these services, it would be a case for the application of the Cy pres doctrine.
Taking into consideration that originally the inam income.
was only Rs. 11 the whole of which was to be and was expended on the service of deity i.e. Kalyanotsavam and considering the nature of the grant the High Court has rightly applied Cy pres doctrine.
We are therefore of the opinion that the judgment of the High Court was right and we dismiss this appeal with costs.
Appeal dismissed.
(1) (2) (1947) L.R. 74 I.A. 230.

Output:
The sole trustee of a deity in a suit prayed for a decree for the recovery of the arrears of income of a property alleging that the property in dispute constituted a specified endowment for Kalyanotsavam of the deity and the appellants who were trustees of the said property had committed default in carrying out the purpose of the trust; but there was no formal Prayer for the declaration that the said properties and income thereof formed a specific endowment for the said due performance of the services of Kalyanotsovam of the deity and feeding charges, and other expenses.
The defence raised was that lnam was a personal grant burdened with service of the deity and that it was not a specific trust or an endowment for the benefit of the idol.
The High Court after allowing the respondents to amend the plaint by adding a formal prayer for declaration stating that the properties and income thereof formed a specific endowment for the due performance of the services of Kalyanotsavam of the deity held in favour of the respondents and further, observed that the appellants were liable to pay the entire income to the deity.
On appeal to the Supreme Court it was contended for the appellants inter alia (1) that the grant was a personal grant, burdened with the provision for service and it was not a specific grant.
(2) that High Court should not have allowed the amendment of the plaint.
Held, that in the instant case the grant, was a specific endowment for Kalyanotsavam of the deity and therefore a specific trust and not a grant to the appellants with the added obligation of spending on the service.
In considering the question of the nature of a grant, the inam registers have always been treated as evidence of the utmost importance particularly where Sanad & Inam title deeds are not produced, and when two inferences are possible from the reading of documents there is no reason why the Supreme Court will interfere with the view taken by the. courts below.
When at the time of a grant the specific charitable payments exhaust the income of the property, it is a fair inference to draw 769 therefrom that the intention was to devote the whole income to charity and any subsequent increase in the value of the property accrues to the charity and the courts would be right to apply the doctrine of Cy pres.
Held, further, that where necessary allegations had been made in a plaint and the requisite pleas raised and issues framed on the question and the parties were fully cognizant on the points in controversy and necessary evidence led by them, the courts would be right in allowing the amendment by the addition of a prayer in the prayer clause, which was in the nature of formal relief which flowed from the allegation in the plaint.


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Appeal No. 549 of 1962.
Appeals from the judgment and orders dated August 1, 1958 and March 13, 1959 of the Assam High Court A. Nos. 86 of 1958 and 14 of 1959 respectively.
N. C. Chatterjee, K. P. Sen and P. K. Chatterjee, for the appellant (in C.A. No. 549 of 1962).
878 B. P. Maheshwari, for respondents Nos.
1(a) to 1(e) (in C.A. No. 549 of 1962).
Behrul Islam and R. Gopalakrishnan, for the appellant (in C.A. No. 569 of 1963).
D. N. Mukherjee, for the respondent (in C.A. No. 569/ 63).
February 24, 1964.
The Judgment of the Court was delivered by GAJENDRAGADKAR C.J.
These two appeals which have been brought to this Court with a certificate issued by the Assam High Court, raise a short question about the construction and effect of section 5 of the Assam NonAgricultural Urban Area Tenancy Act, 1955 (No. 12 of 1955) (hereinafter called 'the Act ').
The relevant and material facts which have led to the suits from which these two appeals respectively arise, are similar, and so, it would not be necessary to state them in detail in regard to both the matters.
We would, therefore, mention the facts broadly in C.A. No. 549/1962, in dealing with the common point raised for our decision.
The appellant in this case is Mst.
Rafiquennessa who sued the predecessor of the respondents for ejectment.
It appears that Lal Bahadur Chetri has executed a registered lease deed in favour of the appellant on the 14th February, 1946.
The lease covered an open plot of land and under the covenant the leasee was entitled to build a house for residential purposes.
In the ordinary course, the lease was due to expire on the 12th February, 1952, and the lessee had agreed to deliver vacant possession of the land at the expiration of the stipulated period.
Accordingly, a notice to quit was served on him to vacate on the 12th February, 1952.
He, however, did not comply with the notice and that led to the present suit by the appellant for eviction (No. 149 of 1952).
In support of her claim, the appellant alleged that the lessee had contravened the terms of the lease inasmuch as he had sublet the premises built by him, and so, that was an additional ground for evicting the lessee.
The sub lessees were accordingly joined as defendants to the suit.
The lessee Chetri alone resisted the suit.
The sub tenants let into possession by him did not join issue with the appel 879 lant.
The trial Judge decreed the appellant 's claim where upon the lessee Chetri filed an appeal in the Court of the Sub Judge, Lower Assam District, Gauhati, challenging the validity and the correctness of the decree passed against him (Civil Appeal No. 24/1953).
While the appeal was pending, the Act was passed and was published in the Assam Gazette on the 6th July, 1955.
Thereafter, when the appeal came on for hearing before the lower appellate Court, the tenant filed an application praying that he should be permitted to take an additional ground under section 5 of the Act.
Before that date, the Assam High Court had taken the view that the said provision of the Act was applicable to the pending proceedings between land lords and tenants for eviction and that was the basis on which the tenant Chetri wanted to support his appeal.
The lower appellate Court allowed the tenant 's plea, framed an additional issue in pursuance of it and sent the matter back to the trial Court for a finding.
On remand, the trial Court took evidence and after local inspection, made a finding that the two houses proved to have been built by the tenant must be regarded as permanent in relation to the locality of the plot.
He, however, found that there was no evidence to show when the said houses were constructed.
Part of the finding was challenged by the tenant before the lower appellate Court.
The lower appel late Court ultimately allowed the appeal and set aside the decree passed by the trial Judge in favour of the appellant.
The conclusion of the lower appellate Court was that the two houses had been constructed by the tenant within five years after the taking of the lease and that entitled the lessee to claim the benefit of section 5 of the Act.
The appellant then preferred a second appeal in the High Court of Assam (No. 86/1958).
Following its earlier decision about the applicability of the provisions of section 5 to pending proceedings, the High Court summarily dismissed the said appeal.
Thereafter, the appellant applied for and obtained a certificate from the High Court and with the said certificate the present appeal has been brought before us.
Pending these proceedings, the tenant Chetri died and his heirs and legal representatives Mst.
Tulsa Devi and others.
880 have been brought on the record and will be described as respondents hereafter.
Thus, the only point which arises for our decision is whether the Assam High Court was right in taking the view that the provisions of section 5 applied to the proceedings between the parties which were pending at the relevant time before the lower appellate Court.
Appeal No. 569 of 1963 arises from a suit filed by the appellant Wahedulla against his tenant, the respondent Abdul Hamid.
The relevant facts are similar to those in C.A. No. 549/1962.
In this case also, the Act came into force while the appeal was pending before the lower appellate Court and by the application of section 5 respondent 's claim to continue in possession has been upheld and the appellant 's claim for ejecting the respondent has been rejected.
The High Court granted certificate to the appellant when it was told that the appellant proposed to challenge the correctness of its earlier decision holding that section 5 of the Act applied to the pending proceedings.
The Act was passed by the Assam Legislature in order to regulate in certain respects the relationship between land lord and tenant in respect of non agricultural lands in the urban areas of the State of Assam.
It contains fourteen sections and the scheme which is evident in the operative provisions of the Act is to afford protection to the tenants by regulating in certain respects the relationship between them and their landlords in respect of the lands covered by the Act.
Section 3(c) defines a 'landlord ' as meaning a person immediately under whom a tenant holds but does not include the Government.
While section 3(d) defines a 'Permanent structure ' in relation to any locality as meaning a structure which is regarded as permanent in that locality, the 'tenant and 'urban area ' are defined by clauses (g) and (b) respectively.
Section 4 imposes an obligation on the tenant to pay rent for his holding at fair and equitable rates, and the proviso prescribes that in case of any dispute as to fair rent ,between the parties, the rent which was paid by the tenant immediately before the dispute shall be deemed to be fair and equitable unless a competent court decides to the ,contrary.
Section 6 provides for compensation for improvements; section 7 provides for enhancement of rent by contract,.
section 8 deals with enhancement of rent without contract; section 9 881 authorises the Court to make an order as to enhancement of rent: section 10 prohibits illegal realisation beyond the prescribed amount; section 11 provides for notice for ejectment; section 12 prescribes the procedure in which the notice has to be served; and section 13 confers rule making power on the State Government.
Section 14 repeals the earlier Tenancy Act.
Having thus broadly considered the scheme of the Act, it is necessary to read section 5, the effect of which is the main point of controversy between the parties before us.
Section 5(i) reads thus: Notwithstanding anything in any contract or in any law for the time being in force (a) where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non payment of rent; (b) where a tenant has effected improvements on the land of the tenancy under the terms whereof he is not entitled to effect such improvements, the tenant shall not be, ejected by the landlord from the, land of the tenancy unless compensation for reasonable improvements has been paid to the tenant".
Sub section (2) prohibits the ejectment of any tenant from the land of the tenancy except in execution of a decree for ejectment passed by a competent civil Court; and sub section (3) prohibits the execution of a decree for ejectment on the ground of non payment of rent within a period of 30 days from the date of the decree, and allows the tenant to pay into the executing Court the entire amount due from him under 134 159 S.C. 56 882 the decree within the said period, Whereupon the decree has to be entered as satisfied.
Mr. Chatterjee contends that the Assam High Court was in error in coming to the conclusion that the proceedings which were pending between the parties at the appellate stage on 6th July, 1955 when the Act came into force, fell to be governed by the provisions of section 5.
He argues that at the relevant date when the suit was filed by the appellant, he had acquired a right to eject the tenant under the terms of the tenancy, and he contends that where vested rights are affected by any statutory provision, the said provision should normally be construed to be prospective in operation and not retrospective, unless the provision in question relates merely to a procedural matter.
It is not disputed by him that the legislature is competent to take away vested rights by means of retrospective legislation.
Similarly, the legislature is undoubtedly competent to make laws which over ride and materially affect the terms of contracts between the parties; but the argument is that unless a clear and unambiguous intention is indicated by the legislature by adopting suitable express words in that behalf, no provision of a statute should be given retroactive operation if by such operation vested rights are likely to be affected.
These principles are 'unexceptionable and as a matter of law, no objection can be taken to them.
Mr. Chatterjee has relied upon the well known observations made by Wright J. in in re Athlumney Ex parte Wilson(1), when the learned Judge said that it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them.
He added that there was one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights.
In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retroactive operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the (1) 883 provision construed in the context where it occurs.
In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur.
Bearing in mind these principles, let us look at section section Before doing so, it is necessary to consider section 2 which pro vides that notwithstanding anything contained in any con tract or in any law for the time being in force, the provisions of this Act shall apply to all non agricultural tenancies whether created before or after the date on which this Act comes into force.
This provision clearly indicates that the legislature wanted the beneficent provisions enacted by it to take within their protection not only leases executed after the Act came into force, but also leases executed prior to the operation of the Act.
In other words, leases which bad been created before the Act applied are intended to receive the benefit of the provisions of the Act, and in that sense, the Act clearly affects vested rights of the landlords who had let out their urban properties to the tenants prior to the date of the Act.
That is one important fact which is material in determining the scope and effect of section 5.
Now, section 5 itself gives an unmistakable indication of the legislative intention to make its provisions retrospective.
What does section 5 provide? It provides protection to the tenants who have actually built within five years from the date of leases executed in their favour, permanent structures on the land let out to them for residential or business purposes, and this protection is available either when the construction of the permanent structure has been made by the tenant in pursuance of the terms of the lease, or even without any term of that kind and the landlord had knowledge of it and had acquiesced in it.
Thus, the plain object of section 5 is to protect the tenants who have built a permanent structure either for business or for residence, provided it has been built within 5 years from the date of contract of tenancy.
Therefore, cases where permanent structures had been built within 5 years of the terms of contract, would fall within section 5 ( 1 ) (a), even though those constructions had been made before the date of the Act.
Thus, the very scheme of 5 (1) (a) clearly postulates the extension of its protection to 884 constructions already made.
That is another point which is significant in dealing with the controversy between the parties before us.
There is yet another point which is relevant in this connection.
section 5(1)(a) provides that the tenant shall not be evicted by the landlord from the tenancy except on the ground of non payment of rent, provided, of course, the con ditions prescribed by it are satisfied.
If the legislature had intended that this protection should operate prospectively.
it would have been easy to say that the tenant shall not be sued in ejectment; such an expression would have indicated that the protection is afforded to the suits brought after the Act came into force, and that might have introduced the element of prospective operation; instead, what is prohibited by section 5 (1)(a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by section 5(1)(a), though they may have been initially instituted before the Act came into force.
Incidentally, an appeal pending before the lower appellate court is a continuation of the suit, and so, there is no difficulty in holding that a suit which was pending when the Act came into force would be governed by section 5(1)(a) and an appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by section 5(1)(a), provided it is pending after the date when the Act came into force.
Therefore, we are satisfied that the Assam High Court was right in coming to the conclusion that the dispute between the parties in the present case must be governed by the provisions of section 5(1)(a).
It is common ground that if section 5(1)(a) is held to apply, the decrees passed against the appellants in both the appeals cannot be successfully challenged.
The result is, the appeals fail and are dismissed with costs.
One set of hearing foes.
Appeals dismissed.

Output:
The appellant sued the lessee, the predecessor of the respondents, for ejectment on the latter 's failure to deliver possession of a leased land at the expiration of the stipulated period.
Under the covenant the lessee was entitled to build a house for residential purposes.
The trial Court decreed the appellant 's claim whereupon the lessee filed an appeal.
While the appeal was pending the Assam Non Agricultural Urban Areas Tenancy Act was passed, and thereafter the lessee prayed for permission to take an additional ground under section 5 of the Act.
Before that date, the High Court had taken the view that this provision of the Act was applicable to pending proceedings.
The lower appellate court allowed the lessee 's plea and ultimately allowed the appeal and set aside ,he decree passed by the trial Judge in favour of the appellant, concluding that the two houses had been constructed by the lessee within five years after the taking of the lease and that entitled the lessee to claim the benefit of section 5 of the Act.
The High Court on appeal, following its earlier decision about the applicability of the provisions of section 5 to pending proceedings, summarily dismissed the appeal, but granted a certificate for leave to appeal to this Court Held: (i) A statutory provision is retroactive either when it is so declared by express terms.
or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur Re.
Athlumney Ex parte Wilson, , referred to.
(ii) The provisions of the Act clearly indicate that the legislature wanted the beneficient provisions enacted by it to take within their protection not only leases executed after the Act came into force, but also leases executed prior to the operation of the Act.
The plain object of s.5 is to protect the tenants who have built a permanent structure either for business or for residence, provided it has been built within 5 yearsfrom the date of contract of tenancy, even though those constructions had been made before the date of the Act.
(iii) A suit which was pending when the Act came into force would be governed by section 5(1) (a) and an appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by section 5(1) (a), provided it is pending after the date when the Act came into force.
for an appeal pending in a continuation of the suit.


Input:
ivil Appeal No. 2873 of 1987.
From the Judgment and Order dated 5.8.1987 of the Punjab & Haryana High Court in Civil Revision No. 2209 of 1979.
Harbans Lal, S.K. Mehta, Dhruv Mehta and Aman Vachher for the Appellant.
Rajinder Sachhar, K.C. Dua and Ms. Manju Chopra for the Respondent.
N.S. Das Behl, (Not present) The Judgment of the Court was delivered by 425 RANGANATH MISRA, J.
This is a tenant 's appeal by special leave challenging his eviction from a business premises located at Jallandhar.
Under a rent note (Exh.
A I), the appellant had taken the premises on rent from the respondent landlord.
The use to which the premises was intended to be put was running of a cycle and rickshaw repairing shop.
As far as relevant, on the allegation that the tenant had put the premises to different use, an application for his eviction was made under section 13(2)(ii)(b) of the East Punjab Urban Rent Restric tion Act, 1949.
The Controller found that the appellant had continued the business of repairing of cycles and rickshaws but side by side had for a period of about seven months been selling televisions in the premises but he stopped the same as it was not viable.
According to the Controller, this did not constitute user for a purpose other than that for which the premises was leased and he accordingly rejected the peti tion.
The appellate authority at the landlord 's instance held that the statutory condition was satisfied and granted eviction.
The High Court when moved by the tenant declined to interfere.
The short question that arises for consideration is whether there has been a violation of the terms of tenancy by using the premises for a purpose other than that for which the premises had been leased.
The tenant did not dispute that he had taken the premises for running a repair shop of cycles and rickshaws.
In his statement he said that he had commenced the business of selling the televisions side by side in view of the slump in the cycle and rickshaw repairing business.
He also accepted the position that he had not obtained the consent of the landlord when he started the TV business.
The landlord has accepted the position that in the rent note it was not written that the respondent would not do any business in the shop in dispute except the cycle or rickshaw repairs.
On these facts it has now to be decided as to whether the premises has been used for a purpose other than that for which it had been leased.
Reliance was placed on the Full Bench decision of the Punjab High court in Des Raj vs Sham Lal, AIR 1980 P & H 229 where the question for consideration was as to whether when the lease was for the purpose of a shop without anything more specific, user thereof as a godown amounted to change of user.
The High Court in course of the discussion in the judgment rightly drew the distinction between resi 426 dential and non residential premises and also classified non residential buildings into known categories like shop, godown, restaurant, cinema, hotel etc.
In course of the discussion the Full Bench referred to the decision of this Court in Moti Ram vs State of Madhya Pradesh, ; and came to the conclusion that when the letting out purpose was location of a shop and it .was exclusively used as a godown, it amounted to a change of user.
Not much of support is directly available for the resolution of the present dispute from that judgment.
Reliance was also placed on a decision of this Court in the case of Mohan Lal vs Jai Bhagwan, ; where the very provision of the East Punjab Act was considered in a case of eviction.
The decision of this Court in the case of Maharaj Kishan Kesar vs Milkha Singh, (C.A. No. 1086/64 decided on November 10, 1965) was referred to therein.
That again was a decision under the very Act and the dispute related to the allegation of change of user when petrol was sold as an allied business of the avowed purpose of locating the workshop.
The Court found.
that location of a petrol pump could not be regarded as not being a part of motor workshop business.
Rightly, our learned brother Mukharji, J. indicated that the ratio in Maharaj Kishan Kesar 's case did not provide any guideline of general nature.
What was said in pars 9 of his judgment is perhaps useful.
Our learned Brother quoted the observations of Lord Diplock, J. in Duport Steels Ltd. vs Sirs, and said: "While respectfully agreeing with the said observations of Lord Diplock, that the; Par liament Legislates to remedy and the judiciary interprets them, it has to be borne in mind that the meaning of the expression must be found in the felt necessities of the time.
In the background of the purpose of rent legisla tion and inasmuch as in the instant case the change of the user would not cause any mis chief or detriment or impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores, in our opinion, in this case there was no change of user which at tracted the mischief of section 13(2)(ii)(b).
" On that conclusion, the order of eviction was reversed.
Letting of a premises can broadly be for residential or commercial purpose.
The restriction which is statutorily.
provided in section 13(2)(ii)(b) of the Act is obviously one to protect the interests of the landlord .and is intended to restrict the use of the landlord 's premises 427 taken by the tenant under lease.
It is akin to the provision contained in section 108(0) of the dealing with the obligations of a lessee.
That clause pro vides: 'The lessee may use the property and its products, if.
any, as a person of ordinary prudence would use then if they were of his own; but be must not use or permit another to use the property for a purpose other than that for which it was leased . ' A house let for residential purpose would not be available for being used as a shop even without structural alteration.
The concept of injury to the premises which forms the foundation of cl.
(o) is the main basis for providing cl.(b) in section 13(2)(ii) of the Act as a ground for the tenant 's eviction.
The Privy Council in U Po Naing vs Burma Oil Co., AIR 1929 PC 108 adopted the same considera tion.
The Kerala High Court has held that premises let out for conducting trade in gold if also used for a wine store would not amount to an act destructive of or permanently injurious to the leased property Simi larly, the Bombay High Court has held that when the lease deed provided for user of the premises for business of fret work and the lessee used the premises for business in plas tic goods, change in the nature of business did not bring about change of user as contemplated in section 108(o) of the The landlord parts with possession of the premises by giving a lease of the property to the tenant for a consider ation.
Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable.
In this case, the premises was let out for running of a repair shop.
Along with the repair business, sale of televi sions was temporarily .carried on.
We do not think this constituted a change of user within the meaning of section 13(2)(ii)(b) of the Act so as to give a cause of action to the landlord to seek eviction of the tenant.
The appeal is allowed and the order of eviction passed by the appellate authority and affirmed by the High Court is vacated and the order of the Controller is restored.
Parties are directed to bear their own costs throughout.
T.N.A. Appeal allowed.

Output:
The appellant had taken the premises on rent from the respondent landlord for running a cycle and rickshaw repair ing shop.
In the rent note there was no stipulation that the appellant would not do any business in the shop except the cycle or rickshaw repairs.
Along with the repair business the appellant temporarily carried on sale of televisions also in the premises.
The landlord filed an application for eviction under section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 alleging that the tenant had put the premises to different use.
The Rent Controller rejected the application by holding that the temporary sale of televisions did not constitute user for a purpose other than that for which the premises was leased.
On an appeal filed by the landlord the appellate authority granted eviction by holding that the statutory condition was satisfied.
The appeal filed by the tenant against the decision of the appellate authority was dis missed by the High Court.
Hence this appeal by the tenant.
Allowing the appeal and setting aside the order of eviction, HELD: Letting of a premises can broadly be for residen tial or commercial purpose.
The restriction which is statu torily provided in section 13(2)(ii)(b) of the Act is obvi ously one to protect the interests of the landlord and is intended to restrict the use of landlord 's premises taken by the tenant under lease.
It is akin to the provision con tained in section 108(o) of the dealing with the obliga 424 tions of a lessee.
A house let for residential purpose would not be available for being used as a shop even without structural alteration.
The concept of injury to the premises which forms the foundation of clause (o) is the main basis for providing clause (b) in section 13(2)(ii) of the Act as a ground for the tenant 's eviction.
[426H, 427A B] The landlord parts with possession of the premises by giving a lease of the property to the tenant for a consider ation.
Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable.
In the instant case, the premises was let out for running of a repair shop.
Along with the repair busi ness, sale of televisions was temporarily carried on.
This did not constitute a change of user within the meaning of section 13(2)(ii)(b) of the Act so as to give a cause of action to the landlord to seek eviction of the tenant.
[427E, F] Mohan Lal vs Jai Bhagwan, ; , applied.
Des Raj vs Sham Lal, A.I.R. 1980 P & H 229, held inapplica ble.
Moti Ram vs State of Mahdya Pradesh, A.I.R. 1978 S.C. 1594; Maharaj Krishan Kesar vs Milkha Singh, Civil Appeal No. 1086 of 1964 decided on November 10, 1965 (S.C.); Dup port Steel Ltd. vs Sirs, ; U.P. Naing vs Burma Oil Co., A.I.R. 1929 P.C. 108; Raghavan Pillai vs Sainaba Beevi, [1977] Kerala L.T. 417 and Dattatraya vs Gulab Rao, , referred to.