Judgement

SHAH, J. :- The respondents sued the appellant for a decree in ejectment in respect of shop Municipal Census No. 1754 at Ahmedabad and for rent in arrears and additional taxes. The Trial Court dismissed the claim for ejectment and passed a decree for arrears of rent and permitted increases. In appeal under Section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, the decree was confirmed on February 25, 1963. By Section 29 (2) of that Act, as it then stood, no appeal lay against any decision in appeal under subsection (1) from the order of the Court of First Instance. The respondent accordingly moved the High Court of Gujarat by a petition under Section 115 of the Code of Civil Procedure. When this petition was pending in the High Court, Bombay Act 57 of 1947 was amended by Gujarat Act 18 of 1965, and sub-section (2) of Section 29 was replaced by the following sub-section :

"No further appeal shall lie against any decision in appeal under sub-section (1), but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit."

On the assumption that by the amended Act the High Court was empowered to decide all petitions pending on the date on which the amended section came into operation, as if the amended section applied thereto, the High Court entered upon a detailed investigation of the questions raised by the respondent in the petition - (1) whether the tenant proved that he was ready and willing to pay the standard rent and permitted increases within the meaning of See. 12 (1) of the Act. (2) whether the tenant was in arrears of standard rent and permitted increases and the amount of tax for more than six months, and therefore the case fell within the purview of Section 12 (3) (a) and not under Section 12 (3) (b) of the Act and (3) whether in any event the tenant having tailed to observe the conditions of the tenancy was disentitled to the protection either under Section 12 (1) or S. 12 (3) (b) of the Act and reversed the order of the appellate court and decreed the respondent s suit. With special leave, the appellant has appealed to this Court.

2. This Court in Vora Abbasbhai Alimahomed v. Hali Gulamnabi Hali Safibhai, (1964) 5 SCR 154 held that in a petition under Section 115 of the Code of Civil Procedure from an order made by the appellate court under Section 29 of Bombay Act 57 of 1947, the High Court had no power to set aside the order merely because it was of opinion that the judgment was assailable on the ground of error of fact or even of law the High Court may exercise its power under that section only if the appellate court had acted without jurisdiction or had failed to exercise its jurisdiction or had acted with material illegality or irregularity in the exercise of its jurisdiction. Thereafter the Gujarat Legislature amended Section 29 (2) by Act 18 of 1965 in the manner set out, so as to confer upon the High Court a jurisdiction wider than the jurisdiction exercisable under Section 115 of the Code of Civil Procedure.

3. Counsel for the appellant contended that in entering upon an enquiry into the questions raised by the respondent, the High Court exercised jurisdiction which it did not possess. Counsel contended that the right to appeal - and which expression includes the right to move a superior court in exercise of the revisional jurisdiction - attaches to a litigation when it commences and it is not affected by any subsequent amendments unless an express provision is made giving retrospective operation to the amendment and that the right to appeal which originally attached to the litigation - will continue to govern it till it is finally decided. Counsel relied in support of that contention upon the decisions in Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369; Garikapatti Veeraya v. N. Subbiah Choudhry, 1957 SCR