Judgment

HIDAYATULLAH, J. : This is a tenants appeal, with the special leave of this Court, against an order of Naik, J., of the High Court of Bombay in Civil Revision Application No. 320 of 1959, by which he disallowed certain pleas raised by the appellants. The respondent is the landlord.

2. On September 11, 1942, the appellants had executed a rent note, under which they were in occupation of the premises in dispute. The period of the tenancy was 15 years, and it expired by efflux of time on March 14, 1957. The landlord thereupon filed a suit on April 25, 1957, for possession of the premises, in the court of the Joint Civil Judge (Junior Division), Erandol. Meanwhile, under S. 6 of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947, (to be called the Act, in this judgment), a notification was issued, applying Part II of the Act to the area where the property is situated. The appellants claimed protection of S. 12 in Part II of the Act, which deprived the landlord of the right of possession under certain circumstances. The Civil Judge framed three preliminary Issues, which were as follows:

"1. Whether this Court has jurisdiction to try the suit?

2. Whether the plaintiff s suit for possession of the suit property is maintainable in view of the Notification issued by the Government of Bombay on 16th August, 1958, applying Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act? If not, what order should be passed?

3. What order?"

3. These Issues were decided against the appellants. They filed a revision petition before the High Court of Bombay, which was dismissed by the order under appeal. Naik, J., who heard the revision, followed a previous Full Bench ruling of the Bombay High Court reported in Nilkanth Ramchandra v. Rasiklal, 51 Bom LR 280. In that case, Chagla C. J. (Gajendragadkar and Tendolkar, JJ., concurring) had held that S. 12 of the Act was prospective and did not apply to pending cases. Reliance was also placed by Naik, J.. on the decision of this Court in Chandrasingh Manibhai v. Surjit Lal, 1951 SCR 221 where the opinion of the Full Bench of the Bombay High Court was approved.

4. Two questions have been raised in this appeal, and they are (1) whether by virtue of the first proviso to S. 50 of the Act. all the provisions of Part II including S. 12 were not expressly made applicable to all suits; and (2) whether by virtue of S. 12(1) of the Act, which applied independently by the extension of the Act to the area where the property is situate, the suit was not rendered incompetent and the landlord deprived of his remedy of possession.

5. Before we deal with these contentions, it is necessary to see some of the relevant provisions of this Act. The Act was not the first to be passed on the subject of control of houses, etc. Previously, there were two other Acts in force in the State of Bombay, viz., the Bombay Rent Restriction Act, 1939 and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act,1944. By S. 50 of the Act, these Acts. were repealed. The first proviso, however, enacted (omitting unnecessary parts):

"Provided that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply.......which are pending 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 or shall be continued in such Courts, as the case may be, and all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings."

It is this proviso which, it is claimed, has retrospective effect and S. 12 of the Act which is in Part II is said to apply to all pending cases, whenever the act is extended to fresh areas. Section 12 of the Act reads as follows:

"12. 1. A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready a