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PETITIONER: DILIP

       Vs.

RESPONDENT: MOHD.  AZIZUL HAQ & ANR.

DATE OF JUDGMENT:       14/03/2000

BENCH: S.S.M.Quardi, S.Rajendra Babu

JUDGMENT:

     RAJENDRA BABU, J.  :

     Leave granted in S.L.P.  (C) Nos.  6767-6768 of 1999.

     Respondent  No.   1  filed a civil  suit  against  the appellant  regarding the plot in Civil Suit No.  268 of 1987 on  the  ground  that  the premises is  open  land  and  the provisions  of  C.P.  and Berar Letting of Houses  and  Rent Control Order, 1949 [hereinafter referred to as the Order] was not applicable to the said premises and that the tenancy of the appellant stood terminated by efflux of time followed by  a  notice  dated 8th March, 1986 with  effect  from  1st April, 1986.  The appellant took the stand that the premises in question is not an open plot but is a house as defined in the  Order  as  the said land is a part and  parcel  of  the residential  house and the residential house cannot be  used without  the  said  land.   Further it  was  contended  that permission  to  construct a shed had been granted, the  open land  was  no  longer  an open land as such  shed  had  been constructed  with permission.  There is a well also  situate in  this  land which is for the use of the occupants of  the house  in  the premises and, therefore, clause 13-A  of  the Order  would  dis-entitle the respondent from obtaining  the relief  of  a  decree.   The Civil Judge,  Akola,  passed  a decree.   The appellant preferred an appeal challenging  the findings  of the trial court that the premises in possession of  the appellant is an open plot and not a house as defined in clause 13 of the Order.  On 27th June, 1989 the Order was amended  by  substituting the word premises for  the  word house,  wherever  it occurs, and by this  amendment,  sub- clause (4-A) was also inserted in clause 2 whereby lands not being  used for agricultural purposes also stood included in the  definition of the premises.  Thereafter the State  of Maharashtra  made  another amendment which became  effective from  26th  October, 1989 and introduced clause 13-A in  the Order  to  the effect that no decree for eviction shall  be passed in a suit or proceeding filed and pending against the tenant  in  any  court or before any  authority  unless  the landlord  produces a written permission of the Controller as required  by sub- clause (1) of clause 13.  At that  stage, the  appellant filed an application under Order 7 Rule 11 of the  Civil  Procedure  Code to contend that in view  of  the amendment  introduced by insertion of clause 13-A read  with

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the  definition  of  premises in clause 2(4-A)  the  Order stood  extended  to open plots and, therefore, even  on  the basis  of  the plaint allegations the same was liable to  be rejected.   In  the meanwhile, the respondent filed  a  Writ Petition  before  the  High Court of Judicature  at  Bombay, Nagpur  Bench, challenging the validity of clause 2(4-A) and clause  13-A  of the Order on the ground that the  same  are ultra  vires Section 2 of the C.P.  and Berar Regulation  of Accommodation  Act,  1947 [hereinafter referred to  as  the Act].   The High Court stayed the proceedings in the appeal pending  before the District Court.  A Division Bench of the High Court declared the said provisions in clause 2(4-A) and clause 13-A of the Order ultra vires the Act.  The appellant preferred  an  appeal by special leave to this Court.   This Court  allowed the said appeal and the matter stood remanded to  the  High Court with a direction that the High Court  to restore to its file the original Writ Petition and to decide the  question  with  regard to the applicability  of  clause 2(4-A)  and  clause  13-A  of  the Order  to  the  facts  as available  in  the present case and to dispose of  the  Writ Petition  afresh  as  to  the vires of the  clauses,  if  so warranted.   In the meanwhile, Joint District Court,  Akola, allowed the appeal filed by the appellant and the suit filed by   the  respondent  No.   1  was  dismissed.   A  revision application  was filed before the High Court questioning the correctness of the order made in the appeal which is pending consideration by the High Court.

     After remand in the writ petition, the High Court took the  view that there was no appeal filed or pending  against the  tenant on 26th October, 1989 when the second  amendment was  published  and  hence  it has to be  inferred  that  no proceedings  are  filed or pending against the tenant as  on that  date and thus the amendment was not applicable to  the instant  case as the tenancy in respect of the open plot was deemed  to  have expired immediately on 10th April, 1986  in view  of Section 106 of the Transfer of Property Act and the suit  plot  was  not  covered under the  provisions  of  the Central  Provinces  and  Berar   Regulation  of  Letting  of Accommodation  Act,  1946  and the suit  was  decreed.   The second  amendment  brought into force on 26th October,  1989 was  not  applicable  to  the  plot as  the  same  would  be prospective  and not retrospective.  On that basis the  High Court  held that clause 2(4-A) and clause 13-A of the  Order would not be applicable to the suit land and disposed of the writ petition.  This order is in challenge before us.

     A  contention  has  been  raised before  us  that  the expression  house  would also include land appurtenant  to such  building and, therefore, it is a part of the house and even if the amendment is not held applicable, the High Court should  have  examined the question whether the premises  in question  is  a  house as defined under the  Act  or  not. Further at the time of hearing, a point, which was put forth before  us,  is that clause 13-A is applicable to a  pending appeal  even filed by a tenant.  On behalf of the appellants reliance  is  placed  on  three decisions  Amarjit  Kaur  v. Pritam Singh & Ors., 1974 (2) SCC 363;  Lakshmi Narayan Guin &  Ors.  v.  Niranjan Modak, 1985 (1) SCC 270, and H.  Shiva Rao & Anr.  v.  Cecilia Pereira & Ors., 1987 (1) SCC 258, to contend  that  if  a  rent Act  is  made  applicable  during pendency  of an appeal irrespective of the fact whether  the appeal  is preferred by the landlord or by the tenant,  such appeal would be governed by the Act and its provisions would operate  from the date of the filing of the suit and if  the

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suit  filed not in terms of the ground specified in the rent Act,  the  suit  would be incompetent  and,  therefore,  the appeal  must be disposed of accordingly.  Shri V.A.   Mohta, the  learned senior Advocate appearing for the  respondents, submitted  that the Act provides for regulating the  letting and  sub-letting  of  accommodation in the State  of  Madhya Pradesh  of  which  Akola  town  was a  part  prior  to  the reorganisation of the States and that the Act is applicable. Government  under  Section 2 of the Act could, by an  order, extend  by  a  notification for regulating the  letting  and sub-letting  of any accommodation or class of  accommodation whether residential or non-residential, whether furnished or unfurnished  and  whether with or without board  and,  inter alia,  providing  for preventing the eviction of tenants  or sub-tenants    from   such     accommodation   in   specific circumstances.   Therefore, it was argued that the Order  is only  an administrative order and cannot have  retrospective effect  and  relied  upon  the decisions of  this  Court  to support  this proposition in The Income Tax Officer, Alleppy v.   M.C.   Ponnoose  & Ors.  etc., 1969 (2) SCC  351;   The Cannanore Spinning and Weaving Mills Ltd.  v..  Collector of Customs and Central Excise, Cochin & Ors., 1969 (3) SCC 112, and  Bakul Cashew Co.  & Ors.  v.  Sales Tax Officer, Quilon & Anr., 1986 (2) SCC 365.  It was further contended that the accommodation  would  only mean a residential or  dwelling house  and  can  never  mean open plot of  land;   that  the definition  of  house  could  not have  been  replaced  by premises  and,  therefore,  the said  provision  is  ultra vires.   It was further submitted that the appeal was  filed only  against the decree and thus the bar under clause  13-A was only in respect of passing of a decree and inasmuch as a decree  had already been passed, it would not be  applicable to  a proceeding in an appeal or a revision petition.   Shri A.K.   Sanghi,  the  learned counsel  for  the  respondents, adopted   these   arguments  of  Shri   Mohta  as   to   the interpretation  of  the provisions and added  by  submitting that  there  had  been a surrender of  the  premises  which, however, was not supported by any material on record.

     The  vires  of the provisions are not in issue  before us.   Now  what  we have to consider in this  proceeding  is whether the provisions of clause 13-A would be applicable to the  present  case or not.  The High Court proceeded on  the basis  that there is no appeal filed or pending against  the tenant  on  26th October, 1989 when the amendment came  into force  and,  therefore,  it  has  to  be  inferred  that  no proceedings  were filed or pending against the tenant as  on that  date.  This view of the High Court does not take  note of  the language of clause 13-A of the Order.  The effect of a  decree passed by a court against which an appeal is filed has been considered in Lachmeshwar Prasad Shukul v.  Keshwar Lal  Chaudhuri,  1940  FCR  84, wherein  the  Federal  Court explained  that  once  a decree passed by a court  has  been appealed  against  the  matter became sub-judice  again  and thereafter  the appellate court acquired seisin of the whole case.   It  has been a principle of legislation in India  at least  from  1861 onwards that a court of appeal shall  have the  same  powers and shall perform as nearly as may be  the same  duties as conferred and imposed on courts of  original jurisdiction.   Such a view was taken even before the  Civil Procedure  Code  was  introduced  in  Kristnama  Chariar  v. Mangammal,  1902,  ILR  26 Mad 91, that the  hearing  of  an appeal  is under the processual law of the country being  in the  nature  of a re-hearing and it is on the theory  of  an appeal  being in the nature of a re-hearing that the  courts

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in  this country have, in numerous cases, recognised that in moulding  the relief to be granted in a case on appeal,  the court  of appeal is entitled to take into account even facts and  events which have come into existence after the  decree appealed  against.   As an appeal is a re-hearing,  it  must follow  that  if an appellate court dismisses an  appeal  it would  be  passing a decree affirming eviction  and  thereby passes  a decree of its own, and in the event it upsets  the decree  of  the  trial court, it would be  again  passing  a decree of its own resulting in merger of decree of the trial court  with  that of the appellate court.  In Garikapati  v. Subbiah  Chowdhry,  AIR 1957 SC 540, this  Court  enunciated that  the legal pursuit of a remedy, suit, appeal and second appeal  are really but steps in a series of proceedings  all connected  by  an intrinsic unity and one to be regarded  as one legal proceeding.

     After  we heard the arguments, the learned counsel for the  respondents circulated a decision Motiram Ghelabhai  v. Jagan  Nagar,  1985  (2)  SCC 279, to contend  that  when  a provision  is  amended or repealed in respect of  a  pending suit  the principle that an appeal is a continuation of  the suit,  cannot  invoked so as to apply to appeals.   In  that case,  when  the appeal was pending, Part II of  the  Bombay Rents, Hotel and Lodging Housing Rates Control Act, 1947 was made  applicable to the area directly covered by the proviso to  Section  50 with a separate paragraph added thereto  and the  appeal  was liable to be decided and disposed of as  if the 1947 Act had not been passed, that is to say, the appeal had  to  be  disposed  of in accordance with  the  law  then applicable  to it.  Therefore, in those circumstances,  this Court  made the observation that the language of Section  50 of  the  1947  Act  read with the  proviso  thereto  was  an ordinary repealing clause and it was held that the principle that  the appeal is a continuation of the suit could not  be invoked inasmuch as such a provision prevails over a general provision  affording  protection to tenants.  Otherwise,  we cannot  reconcile  this  decision with the  three  decisions referred  to  earlier  in this order and relied  on  by  the learned  counsel  for  the appellants.  Hence,  the  learned counsel  for the respondents cannot derive any support  from this decision.

     In  theory  the appeal is only a continuation  of  the hearing  of  the suit.  Accordingly, the word suit in  the Order has to be understood to include an appeal.  The result is  that  at  the time of the institution of  the  suit  for eviction  clause  13-A was not in force, but at the time  of appeal  such  a clause is introduced, the tenant  in  appeal becomes  entitled  to its protection.  We draw  support  for these  propositions  from the three decisions of this  Court cited by the learned counsel for the appellants.  Therefore, we  are of the view that the High Court was not justified in holding  that  there was no appeal filed or pending  against the  tenant.   In this case, although a decree for  eviction had been passed in the suit, that decree was under challenge in  a proceeding arising out of that suit in appeal and  was pending  in  a court.  Thus an appeal being a re-hearing  of the suit, as stated earlier, the inference drawn by the High Court  that no proceedings were filed or pending against the tenant as on the date would not be correct..

     The  High Court further concluded that the  amendments have no retrospective effect.  The provision came into force when   the  appeal  was   pending.   Therefore,  though  the

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provision is prospective in force, has retroactive effect. This  provision  merely  provides  for a  limitation  to  be imposed for the future which in no way affects anything done by  a  party  in  the past and statutes  providing  for  new remedies  for enforcement of an existing right will apply to future  as well as past causes of action.  The reason  being that  the said statutes do not affect existing rights and in the  present  case,  the  insistence is  upon  obtaining  of permission  of  the  Controller  to  enforce  a  decree  for eviction  and it is, therefore, not retrospective in  effect at all, since it has only retroactive force.

     The  problem  concerning   retrospectivity  concerning enactments  depends  on events occurring over a period.   If the  enactment  comes  into force during a  period  it  only operates  on  those events occurring then.  We must bear  in mind  that the presumption against retrospective legislation does  not necessarily apply to an enactment merely because a part  of  the requisites for its action is drawn  from  time antecedent  to its passing.  The fact that as from a  future date  tax  is charged on a source of income which  has  been arranged  or provided for before the date of the  imposition of  the  tax  does not mean that a  tax  is  retrospectively imposed  as  held in Commissioners of Customs and Excise  v. Thorn  Electrical  Industries  Ltd.,   1975  (1)  WLR  1661. Therefore,  the  view of the High Court that clause 13-A  is retrospective in effect is again incorrect.

     The  High  Court  further  took   the  view  that  the expression  premises in the Act does not state as to  when the  amendment  was  to be effective as it  does  not  state whether the amendment was retrospective or prospective.  The same is on the statute book on the date on which the suit or proceeding  is  pending for purpose of eviction  and  cannot ignore  the  provision on the statute book.  Therefore,  the view of the High Court on this aspect of the matter also, is incorrect.    The  arguments  advanced  on  behalf  of   the respondents  that  these  amendments  are  retrospective  in character  and could not have been made in the absence of an authority  under  the  main enactment by virtue  which  such order is made is untenable.

     For  the  aforesaid reasons, the appeals are  allowed, the order made by the High Court is set aside and the matter is  remitted to the High Court for a fresh consideration  in accordance with law.  There will be no order as to costs.