1. Reference to be answered by the Full Bench is whether the Notification No. F 1 (4) Rev. 1/51, dated 11.1.1951 of the Government should be considered to apply to cases decided by S.D.Os. before issue of that notification.

2. The said notification was issued by the Government under sec. 15 of the Rajasthan (Protection of Tenant) Ordinance, No. IX of 1949. Sec. 15 empowered the Government to exempt either wholly or partially and either for a specified period or permanently any person or class of persons or any lands or class of lands in any part of Rajasthan in which the Ordinance was in force from the provisions thereof. In exercise of the powers thus conferred the Government exempted the following land from the provisions of the Ordinance, namely :—

(1) land belonging to persons who are in the military employment of the Government; or

(2) land belonging to persons who were discharged from military employment of the Govt. after the coming into force of the Ordinance.

This notification was published on 11.1.1951. Before its publication as there was no exemption for persons serving in the military or who had been discharged from the military employment tenants who had been ejected by such persons had applied for reinstatement and the S.D.Os. had issued orders for their reinstatement. In the case in which this reference has been made an application against the order of the S.D.O. was filed under sec. 10 (2) of the Ordinance in the Board. The notification was published before the application was disposed of by the Board. The question for determination, therefore, was whether the Board could take cognizance of the notification and apply it to such cases which were pending before it.

3. The ordinary rule of law was that an enactment applies to cases which arise after coming into force of such an enactment unless the enactment is expressly made by the Government to have a retrospective effect.

4. It was, therefore, argued before us that as the Government had not expressly made the notification applicable with retrospective effect it should apply only to cases that arose after the publication of the notification and not to those which had arisen and had been decided by the S.D.Os. before its publication.

5. On the other hand, it is argued by the opposite party that the notification was not a new enactment but only an application of the enact ment already passed. It held the Ordinance already passed not to be applicable to certain lands and, therefore, the exemption should be considered to take effect from the coming into force of the Ordinance itself. The notification should be deemed to have a retrospective effect by implication. It is further argued that when the application filed under sec. 10 (2) of the same Ordinance was pending in the Board of Revenue the case should be considered to be pending and the Board shall take into account the clarification made by the Government in respect of the Ordinance under which the lower court had passed the order. In support of the above contention the counsel has referred us to A.I.R. 1941 Federal Court 5, and A.I.R. 1928 Calcutta 436. In the later ruling it had been held by the Calcutta High Court that "it is true that an appellate court has to decide a case as it was presented before the trial court and on a consideration of which the original judgment is based. But if the right claimed is one which has either ceased to exist or been modified by certain events which have transpired since the decree of the trial court the appellate court is bound to take notice of it in order to give just and proper relief to the parties to the appeal before it".

6. The case in which the above ruling was given was one under the Bengal Rent Control Act and an order was passed by the lower court according to the Rent Act which was in force at the time the order was passed. Later on the Act expired and ceased to have effect and was not in force at the time the appeal was heard by the High Court. It was, therefore, held

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