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SUPREME COURT OF INDIA
23rd February 1951
PATANJALI SASTRI, MAHAJAN AND B.K. MUKHERJEA, JJ.
Chandrasinh Manibhai and others - Applts.
Versus
Surjit Lal Ladhamal Chhabda and others - Respondents.
Appeal No. 57 of 1950.
Advocates appeared
Shri B. Somayya, Senior Advocate (Shri Indra Lal, Advocate, with him ) instructed by Shri Naunit Lal, Agent - for Appellants ; Shri G. K. Daphtary, Senior Advocate, (Sri Narain Andley, Advocate, with him) instructed by Shri Rajinder Narain, Agent for Respondents.
The Bombay Rents, Hotel and Lodging House ~ates Control Act, 1947, was enacted on the 19lhlanuary, 1948, and came mto force on the 13th February, 1948. The aecree for ejectment of a tenant in Bombay was passed on the 13th October, 1947, that is, before this Act came into force, but the appeal in the High Court against that judgment was heard on 26th February, 1948, that is, after this Act came into force. It was contended before the High Court that the appeal being in thenature of a re-hearing, it should be decided in accordance with the provisions of Act LVII of 1947 and not in accordance with the provisions of the Act in force at the time when the decree was passed by the trial court. The contention was accepted by the High Court, and the High Court giving to the tenant the benefit of the provisions of section 12 of the new Act set aside the decree of ejectment given by tria! court. Regarding section 50 of the Act,l the High Court held
I . Section 50 of the Act while repealing the Act of 1939 and the Act of 1944 provides as foHows :
"Provided that aH suits and proceedings (other. than execution proceedings and appeals) between a landlord and a tenant relatmg to the recovery of fixing of rent or possession of any premises to which the provisions of Part II apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situate in an area to which Part III applies, which are pendiRg in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act, and thereupon all the provisions of this Act and the rules made thereunder shall apply
to all such suits and proceedipgs ; .
"Provided fUrther~ - that that section merely provided for transfer of pending suits and proceedings to courts given jurisdiction under the Act to hear them and that from its ambit execution proceedings and appeals were excluded because no question could arise of their being transferred from one court to another and that an appeal being a continuation of the suit and in the nature of a re-hearing, the provisions of section 12 should be applied to pending appeals. There was a further appeal to the Supreme Court.
Held (allowing the appeal) : (I) In terms the provisions of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are transferred under the provisions of section 50 of the Act and its retrospective effect is confined to what is expressly stated in that section. This section cannot be described as a section providing merely for transfer of pending cases to courts having jurisdiction to deal with them. It is on the other hand a "repeal" section in the new statute. It repeals the two earlier statutes, and while repealing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the courts having jurisdiction to hear them under section 28 of the Act.l
(2) Section 12 is in terms prospective and not retrospective.2(a) every order passed or act done by the Controllers under Part IV of the Bombay Rents, Hote] and Lodging House Rates (Control) Act, 1944 and every order or Act deemed to have been passed or done under that Part shall be deemed to have been passed or done under this Act; and
(b) all proceedings pending before the Controllers under Part IV of that Act shall be transferred to and continued before the Controllers appointed under this Act as if they were proceedings instituted before the Controllers under this Act."
I.Nilkant v. Rasiklal, A.I.R. 1949 Born. 2]0 approved. In that case a Full Bench of the Bombay High Court he]d: The retrospective effect of S. 50 of the Bombay Rents, Hote] and Lodging House Rates (Contro]) Act. 1947, is confined to what is expressly stated in S. 50 of the Act. Section 12 is in terms prospective and not retrospective. Hence, where a decree for ejectment was passed under the old Act and the new Act came. into force while the appeal of the defendant was pending, the defendant was not entitled to take advantage of S. 12 (3) of the Act.
2. Section 12 of the Act reads as follows:
"( i) A ]andlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy. in so far as they are consistent with the provisions of this Act.
(ii) No suit for recovery of possession shall be instituted by a land]ord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increase has been served upon the tenant in the manner provided in section] 06 of the Transfer of Property Act. 1882.
(iii) No decree for eviction shall be passed in any such suit if, at the hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with costs of the suit.
Explanation.-In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of section II and thereafter pays or tenders the amount or rent or permitted increases specified in the C?rder ~ade by th, Court." ,
Judgment
Mahajan J. - The applts. are owners of a property known as "Bharat Bhuvan Theatre" at Ahmedabad. The resps. are the lessees of the said theatre. The term of the lease was to expire on 2-12-1945, unless the lessees gave to the landlords three months previous notice in writing of their intention of exercising their option of renewal of the lease for a further period of two years. On 13-12-1945 the applts. filed the suit out of which this appeal arises for ejectment of the resps. and for recovery of certain amounts. This suit was decreed on 14-10-1947 on the following findings : (1) that the resps, had not exercised the option of the renewal of the lease according to the stipulations contained in the lease, (2) that they had committed breaches of the terms of the lease, and (3) that they were not protected by the Rent Restriction Act. An enquiry was directed into the amount of mesne profits. The resps. filed an appeal in the H. C. against the decree of the Joint Civil Judge on 10-11-1947. The appeal was heard by a Bench of the H. C. (Weston and Dixit JJ.) on 26-2-1948 and was decided on 1-4-1948. The judgment and decree of the Joint Civil Judge were reversed and the pltf s suit was dismissed. The H. C. affirmed the finding of the trial Court on the first point and held in agreement with it that the resps. had not proved that they gave three months previous notice in writing to the applts. for renewal of the lease as required by cl. 4 (2) of the lease. It reversed the finding of the trial Judge on the point that the resps. had committed breaches of the terms contained in cl. 2 (20) of the lease. Finally it reached the conclusion that although the decree appealed from was right on the date it was made, yet in view of the altered circumstances created by reason of coming into operation of Act LVII [57] of 1947 the applts. were not entitled to recovery of possession of the suit premises. Being aggrieved by the judgment of the H. C. the applts. obtained a certificate and filed an appeal in this Court on 7-3-1949, and it is now before us for decision.
2. It was contended before the H. C. that the appeal being in the nature of a rehearing, it should be decided in accordance with the provisions of Act 57 [LVII] of 1947 which came into force on 13-2-1948 and not in accordance with the provisions of the Act in force at the time when the decree was passed by the trial Court. In other words, the contention was that there having been a change in the law after the date of the decree passed by the trial Judge and before the appeal was heard, the rights of the parties should be determined in accordance with the law as it stood on the date of the hearing of the appeal. The H. C. gave effect to this contention and set aside the decree made for ejectment of the respondents.
3. The learned counsel for the applts. challenged the decision of the H. C. before us on three grounds: (1) that assuming that the appeal had to be decided by the H.C. in accordance with the provisions of Act 57 [LVII] of 1947, the provisions of that Act had no application to pending appeals which had been excluded from its ambit ; (2) that Act 57 [LVII] of 1947 had been amended by Bombay Act III [3] of 1949 dud that the appeal pending in this Court should be decided in accordance with the provisions of the amended Act which excluded pending appeals from the purview of Act 57 [LVII] of 1947 ; and (3) that the H. C wrongly reversed the trial Court s finding that the resps. had committed breaches of the terms contained in cl. 2 (20) of the lease. The learned counsel for the resps. besides controverting the contentions raised on behalf of the applts. contended that both the Courts had erred in holding that the resps. had not proved that they exercised the option of renewal of the lease according to the stipulations contained therein.
4. In our opinion, the decision of the appeal depends solely on the construction of Ss. 12 50 of Act 57 [LVII] of 1947. The question to decid
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