23 February 1951
Supreme Court
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CHANDRASINGH MANIBHAI AND OTHERS Vs SURJIT LAL LADHAMAL CHHABDAAND OTHERS.

Case number: Appeal (civil) 57 of 1950


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PETITIONER: CHANDRASINGH MANIBHAI AND OTHERS

       Vs.

RESPONDENT: SURJIT LAL LADHAMAL CHHABDAAND OTHERS.

DATE OF JUDGMENT: 23/02/1951

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND SASTRI, M. PATANJALI MUKHERJEA, B.K.

CITATION:  1951 AIR  199            1951 SCR  221  CITATOR INFO :  RF         1961 SC1596  (3)  E          1985 SC 709  (4,12)

ACT:     Bombay Rents, Hotel and Lodging House Rates  Control Act (LVII  of 1947), ss. 12, 50--Application q[ Act  to  appeals pending when Act came into force--Retrospective operation of Act, extent of-Construction of ss. 12 and 50.

HEADNOTE:     The Bombay Rents, Hotel and Lodging House Rates  Control Act, LVII of 1947, which came into force on the 13th  Febru- ary, 1948, has no application to appeals which were  pending at the time when the Act came into force.  Its retrospective effect  is limited to cases mentioned in s. 50 of  the  Act, that  is to say, to suits and proceedings which were  trans- ferred  under  the  provisions of the said  section  to  the courts having jurisdiction under the Act.     Section  12 of the said Act is in terms prospective  and not  retrospective  in effect. Sub-section  (2)  relates  to suits which may be instituted after the Act comes into force and sub-s. (3) also only applies to such suits. Nilkanth v. Rasiklal (A.I.R. 1949 Bom. 210) approved.

JUDGMENT:     CIVIL APPELLATE JURISDICTION:  Appeal  (Civil Appeal No. 57 of 1950) from a judgment and decree of the High Court  of Judicature  at Bombay dated 1st April, 1948, in  Appeal  No. :365  of 1947 reversing a judgment of the Joint Civil  Judge at  Ahmedabad, dated 14th October, 1947, in Suit No. 174  of 1945.     B.   Somayya  (Jindra Lal,  with  him)  for  the  appel- lants.     C.K.  Daphtary  (Sri Narain Andley, with  him)  for  the respondents.     1951. February 23. The judgment of the Court was  deliv- ered by     MAHAJAN  J.  - The appellants are owners of  a  property known as "Bharat Bhuvan Theatre" at Ahmedabad. The  respond-

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ents  are the lessees of the said theatre. The term  of  the lease was to expire on the 2nd 222     December,  1945,  unless the lessees gave  to  the  land lords  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 the  13th  December, 1945, the appellants filed the suit out of which this appeal arises for ejectment of the respondents and for recovery  of certain amounts. This suit was decreed on the 14th  October, 1947,  on the following findings: (1) that  the  respondents 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  prof- its.   The  respondents filed an append in  the  High  Court against  the  decree of the Joint Civil Judge  on  the  10th November, 1947.  The appeal was heard by a Bench of the High Court (Weston and Dixit JJ.) on the 26th February, 1948, and was decided on the 1st April, 1948.  The judgment and decree of  the Joint Civil Judge were reversed and the  plaintiff’s suit  was dismissed. The High Court affirmed the finding  of the  trial  court on the first point and held  in  agreement with  it that the respondents had not proved that they  gave three  months previous notice in writing to  the  appellants for renewal of the lease as required by clause 4 (2) of  the lease.   It reversed the finding of the trial Judge  on  the point  that  the respondents had committed breaches  of  the terms  contained in clause 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 of 1947 the appellants were not  enti- tled to recovery of possession of the suit premises.   Being aggrieved by the judgment of the High Court, the  appellants obtained a certificate and filed an appeal in this court  on the 7th March, 1949, and it is now before us for decision.      It was contended before the High Court that the  appeal being in the nature of a rehearing, it should be 223 decided  in  accordance with the provisions of Act  LVII  of 1947  which came into force on the 13th February, 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 High Court gave effect to this contention and set aside  the decree made for ejectment of the respondents.     Learned counsel for the appellants challenged the  deci- sion of the High Court before us on three grounds: (1)  that assuming that the appeal had to be decided by the High Court in  accordance with the provisions of Act LVII of 1947,  the provisions  of that Act had no application to  pending   ap- peals   which  had  been excluded from its  ambit;  (9,)that Act  LVII  of 1947 had been amended by Bombay  Act  III   of 1949  and  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 LVII  of   1947;  and  (3) that the   High   Court   wrongly reversed  the trial court’s finding that the respondents had committed  breaches of the terms contained in clause 2  (20)

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of  the  lease.   The learned counsel  for  the  respondents besides  controverting the contentions raised on  behalf  of the  appellants contended that both the courts had erred  in holding that the respondents had not proved that they  exer- cised  the option of renewal of the lease according  to  the stipulations contained therein.     In  our  opinion,  the decision of  the  appeal  depends solely on the construction of sections 12 and 50 of Act LVII of  1947.   The  question to decide is  whether  the  Bombay Rents,  Hotel and Lodging House Rates Control Act,  LVII  of 1947, which was enacted on the 19th January, 1948, and which came into force on the 13th February,  1948,  has   applica- tion to 29 224 pending  appeals  or  whether its  retrospective  effect  is limited  to cases mentioned in section 50 of the  Act.   The point   whether   the  option   of   renewal  was  exercised according to the covenants  of  the lease is concluded by  a concurrent  finding of fact and nothing that  Mr.  Daphthary said  in  support of his contention in any way  shakes  that finding.  The case must therefore be decided on the  assump- tion that the respondents did not exercise the option  given to  them under the lease for its renewal.  We are  also  not impressed  with the argument of the learned counsel for  the appellants that the High Court wrongly reversed the  finding of the trial Judge on the point that the respondents commit- ted breaches of the terms of the tease. We should not howev- er  be taken to concur in all the reasons given by the  High Court for reversing that finding.     Whether  the  High Court was right in holding  that  the provisions  of Act LVII of 1947 have application to  appeals pending  at  the  time when that Act came  into  force;  the answer  to this question depends on the construction  to  be placed on sections 12 and 50 of Act LVII of 1947. Section 12 of the Act is in these terms:-     "  (1) A landlord 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.     (2)  No suit for recovery of possession shall be  insti- tuted  by a landlord 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 increases  has  been served upon the tenant  in  the  manner provided  in  section 106 of the Transfer of  Property  Act, 1882.     (3)  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 the costs of the suit. 225     Explanation--In any case where there is a dispute as  to the amount of standard rent or permitted increases recovera- ble  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 11 and thereafter pays or tenders the  amount or  rent or permitted increases specified in the order  made by the court."     This is the substantive section giving protection to the

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tenant against ejectment. Section 50 which occurs in Part IV dealing  with miscellaneous matters is the  repeal  section. It  repeals the Act of 1939 and the Act of 1944,  and  while repealing these statutes it provides as follows:--     "Provided   that all suits and proceedings  (other  than execution proceedings and appeals) between a landlord and  a tenant relating to the recovery or fixing of rent or posses- sion  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 pending  in  any  Court, shall  be  transferred to and continued  before  the  courts which would have jurisdiction to try such suits or  proceed- ings  under  this Act, and thereupon all the  provisions  of this  Act and the rules made thereunder shall apply  to  all such suits and proceedings. Provided further that--     (a)   every  order  passed or act done by  the  Control- lers  under  Part IV of the Bombay Rents,  Hotel  Rates  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 226 Act  as if they were proceedings instituted before the  Con- trollers under this Act"     The High Court held that section 50 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  be- cause  no  question could arise of their  being  transferred from one court to another and that an appeal being a contin- uation  of the suit and in the nature of a  re-hearing,  the provisions  of section 12 should be applied to  pending  ap- peals.  The opinion expressed by the Division Bench  on  the construction of sections 12 and 50 of the Act was questioned in Nilkanth v. Rasiklal (J), and the matter was referred  to a   Full  Bench.   The Full  Bench  overruled  the  decision reached by the Division Bench on the construction of section 50  and observed that it was clear that in terms the  provi- sions of the new Act and the rules made thereunder are  made to apply only to such suits and proceedings which are trans- ferred  under  the provisions of this section and  that  its retrospective effect is confined to what is expressly stated in  section 50 of the Act.  We are in  respectful  agreement with  the  view  expressed by the Full Bench.   On  a  plain reading of the language of sections 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals  were excluded  from  this effect and were to be governed  by  the provisions of the law in force at the time when the  decrees were passed.  The concluding words of section 50 "and there- upon  all  the  provisions of this Act and  the  rules  made thereunder  shall apply to all such suits  and  proceedings" fully  bear out this construction.  Mr. Daphthary  contended that  the whole object of section 50 was to  make  provision for  transfer  of pending cases to courts which  were  given jurisdiction under the Act to hear them and the section  did not  concern  itself with the extent  of  the  retrospective operation  of the Act, and that section 12 of the Act  which gives protection to tenants should

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(1) A. I. R. 1949 Bom. 210. 227 be construed as having retrospective effect.  In our opinion this  contention  is not sound.  Section 50  cannot  be  de- scribed as a section providing merely for transfer of  pend- ing  cases to courts having jurisdiction to deal with  them. It is on the other hand a" repeal" section in the new  stat- ute.  It repeals the two earlier statutes, and while repeal- ing  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.  We are also inclined to agree with the  view of  the Full Bench that section 12 is in  terms  prospective and  not retrospective.  Sub-section (2) clearly relates  to suits  which  may  be instituted after the  Act  comes  into force.  It cannot apply to suits which were already  pending when  the Act was put on the statute book.  Sub-section  (3) which  gives  the right to the tenant to pay or  tender  the rent at the hearing of the suit only applies to those  suits which  may be instituted after the Act comes into  operation because  it in terms states "in such suit" and not  "in  any suit". "Such suit" can only be a suit referred to in subsec- tions (2) and (3) of section 12.     The  result therefore is that, in our opinion, the  High Court erroneously applied the provisions of Act LVII of 1947 to  the appeal in this case and was wrong in allowing it  on that  basis. In this view of the case it is  unnecessary  to deal  with the alternative argument of the  learned  counsel that  this appeal should be decided in accordance  with  the provisions of Act III of 1949.  We accordingly set aside the decree of the High Court dismissing the plaintiff’s suit and restore  the decree of the trial Judge decreeing the  plain- tiff’s suit with costs.                                Appeal allowed. Agent for the appellants: Naunit Lal. Agent for the respondents: Rajinder Narain. 30 228