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PETITIONER: KESHAVLAL JETHALAL SHAH

       Vs.

RESPONDENT: MOHANLAL BHAGWANDAS & ANR.

DATE OF JUDGMENT: 02/04/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. HIDAYATULLAH, M. (CJ) SIKRI, S.M. BACHAWAT, R.S. MITTER, G.K. VAIDYIALINGAM, C.A. HEGDE, K.S.

CITATION:  1968 AIR 1336            1968 SCR  (3) 623  CITATOR INFO :  R          1973 SC 566  (7)  D          1973 SC1227  (51,55)  F          1973 SC1336  (5)  R          1986 SC1760  (35)

ACT: Bombay  Rents, Hotel and Lodging House Rates Control Act  57 of 1947, s. 29(1) and (2)-amended by Gujarat Act 18 of 1965- whether amended s. 29(2) applied to a case where decision of appellate  Court given before the amended section came  into force-or  if High Court could only exercise power  under  v. 115 C.P.C. in such case.

HEADNOTE: In a suit filed by the respondent in July 1958 for a  decree in  ejectment,  arrears of rent and other dues  against  the appellant  in respect of certain premises in Ahmedabad,  the trial  court dismissed the claim for ejectment and passed  a decree  for  arrears  of rent and  permitted  increases.  in appeal  under s. 29 of the Bombay Rents, Hotel  and  Lodging House Rates Control Act 57 of 1947 the decree was  confirmed on  February 25, 1963.  By s. 29(2) of that Act, as it  then stood,  no appeal lay against any decision in  appeal  under sub-section  (1)  from the order of the  trial  court.   The respondent  therefore  moved the High Court  by  a  petition under  s. 115 CPC.  While this petition was  pending  Bombay Act 57 of 1947 was amended by Gujarat Act 18 of 1965 and  it was  provided in the amended s. 29(2) that while  no  appeal would  lie against any decision in appeal under  sub-section (1).  the  High  Court may, for the  purpose  of  satisfying itself that a decision in appeal was according to law,  call for  the case and pass such order as it thinks fit.  On  the assumption  that the amended Act applied to,  all  petitions pending  before  it,  the  High  Court,  after  a   detailed examination of the case, reversed the order of the appellate court and decreed the respondent’s suit. In appeal  by special leave to this Court, it was contended,

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inter alia, by the appellant that the order of the appellate court  which had acquired finality, subject to the  exercise of  the limited jurisdiction by the High Court under s.  115 C.P.C.  could  not be set aside in exercise  of  the  juris- diction  under  the  amended s. 29(2) in the  absence  of  a provision   in  the  Amending  Act  making   the   amendment retrospective. HELD : The High Court exercised the jurisdiction invested by Act  18  of 1965 in respect of a judgment which  had  become final  a  long  time  before  that  Act.   The  appeal  must therefore  be allowed, the order passed by the  High,  Court set aside and the proceedings remanded to the High Court  to deal  with  and dispose of the revision application  on  the footing that it was governed by s. 115 C.P.C. under which it was purported to have been filed. [630 G]. When  the revision application was entertained under s.  115 of  the Code of Civil Procedure ’the High Court  assumed  to itself a limited jurisdiction conferred by I that selection, and  in  the absence of any express provision  made  in  the Amending  Act,  the jurisdiction conferred by  that  section could not be extended. [629 H-630 B]. There  is  nothing in the language of s. 29(2)  as  amended, which may indicate that it was intended to be  retrospective in operation. [630 D] 624 Indira  Sohan  Lal v. Custodian of Evacuee  Property,  Delhi [1955] 2. S.C.R.  1117 and Moti Ram v. Suraj Bhan  [1960]  2 S.C.R. 896; distinguished. Vora Abbasbhai Alimohammed v. Haji Gulamnabi Haji  Safibhai, [1964] 5 S.C.R. 157; Colonial Sugar Refining CompNY lTD.  V. iRVING,  [1905] A.C. 369; Garkipati Veeravva v.  N.  Subbaih Choudhary  [1957] S.C.R. 488 Nana Bin Aba v. Sheku Bin  Andu I.L.R.  32  Bom. 337 and Dafedar Niranjan Singh  &  Anr.  v. Custodian, Evacuee Property (Punjab) & Anr. [1962] 1  S.C.R. 214; referred to. In  conferring upon the High Court a wider jurisdiction  for the  purpose  of  determining whether the  decision  of  the appellate  court was according to law,, the Legislature  did not  attempt  to legislate in the matter of  procedure.   It expressly  sought  to confer upon the High  Court  power  to reopen  questions which till then were to be deemed  finally decided. [630 C]. Section 29(2) as amended in terms confers jurisdiction  upon the  High  Court to call for the record of a  case  for  the purpose of satisfying itself that the decision in appeal was according  to  law,  which the High Court  did  not  possess before the, date of the Amending Act.  It could not he  said that  the  amending clause only sought to explain  any  pre- existing legislation which was ambiguous or defective.  [630 D-E].

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1271  of 1967. Appeal  by special leave from the judgment and decree  dated March 2, 3, 1967 of the Gujarat High Court in Civil Revision Application No. 1010 of 1963. B....C.   Misra  R.  K. Mathur and M. V.  Goswami,  for  the appellant. S.   K. Iyer and K. L. Hathi, for the respondents.                      Order of Reference Shah, J. This appeal raises the question whether a  revision petition  filed  in  the  High  Court  under  S.  115,-Civil

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Procedure  Code, from an order passed by an appellate  court under  s.  29 of the Bombay Rents, Hotel and  Lodging  House Rates Control Act 1947 may after the aimendment of s.  29(2) by  the Bombay Rents, Hotel and Lodging House Rates  Control (Gujarat  Amendment) Act, 1965 be tried in  accordance  with the  amended Act.  The High Court assumed that a  proceeding pending before it It the date on which the amending Act came into  force had to be dealt with and decided  in  accordance with the provisions of subsec. (2) of s. 29 as amended. There  is  no  dispute  that s. 29(2)  as  amended  has  not expressly  been given retrospective operation.  In  Colonial Sugar   Refining  Co.   Ltd.  v.  Irving(1),  the   Judicial Committee  held that "while provisions of a statute  dealing merely with matters of procedure (1)  [1905] A.C. 369                             625 may   properly,  unless  that  construction   be   textually inadmissible, have retrospective effect attributed to  them, provisions  which touch a right in existence at the  passing of the statute are, not to be applied retrospectively in the absence of express enactment or necessary intendment".   The Judicial Committee further observed that "provisions  which, if applied retrospectively, would deprive of their  existing finality  orders  which, when the statute came  into  force, were final, are provisions which touch existing rights." The same  principle has been affirmed by the Judicial  Committee in  a  later decision in Delhi Cloth and  General  Mills  v. Income-tax Commissioner, Delhi(1). In  Indira  Sohan  Lal  v.  Custodian  of  Evacuee  Property Delhi(2), one of the points decided by this Court in dealing with  a case under the Evacuee (Administration of  Property) Act, 1947, as amended in 1948, was that even if at the  date when   an  application  was  made  for  confirmation  of   a transaction  of  exchange  by a evacuee, the  order  of  the Custodian  was  to be deemed final, if by  an  amending  Act passed  before the order was made, the order was subject  to revision  by  the  Custodian  General,  the  order  of   the Custodian was denuded of its finality,.  In Dafedar Niranjan Singh  and Another v. Custodian Evacuee Property  (Pb.)  and Anr.(3) this Court held that where an order of the Custodian had  become final under the Patiala Evacuee  (Administration of  Property) Ordinance, its finality could not be  affected retrospectively  under  s. 58(3) of  the  Administration  of Evacuee  Property  Act, 1950 which replaced  the  Ordinance. The  Court  distinguished the observations  made  in  Indira Sohan   Lal’s  case(2).   Another  judgment  to  which   our attention was invited is Moti Ram v. Suraj Bhan(4) in  which this Court observed that according to the decision in Indira Sohanlal’s case(2) an appellate decision under s. 5B of  the East Punjab Evacuees’ (Administration of Property) Act, 1947 acquires  finality after the order in question is made,  and "Oven if there be in law any such right at all it can in  no sense   be  a  vested  or  accrued  right",  and   therefore notwithstanding the declared finality of the judgment of the Controller under the Evacuee Property Urban Rent Restriction Act,  1947, when the petition for ejectment was  filed,  the Act  having  been  amended, the  High  Court  invested  with revisional jurisdiction by s. 15(5) was cornpetent to revise the order of the Controller.  This Court observed’ that  the finality  of  the order of the Controller  attached  thereto only  when  the order was made and therefore if  before  the date  on which the order was made, by amendment of the  Act, the order ceased to be final, a revision application to  the High Court was competent. (1) (1927)L.R.54 I.A.--421.

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(2) [1955] 2 S.C.R. 11 17, (2) [1962] 1 S.C.R. 214. (4) [1960]  2 S.C.R. 896. 626 It  is true that in the present case the order of  the  City Civil  Court was made before the amending Act  was  enacted. Under the Rent Act before it was amended. no further  appeal Jay  from  the  decision of the  Appellate  Court,  but  the jurisdiction  of the High Court under S. 115 Code  of  Civil Procedure was not on that account excluded.  By the  amended Act  the  High Court is expressly invested  with  revisional jurisdiction.  which  is  not subject  to  the  restrictions prescribed  by s. 115 of the Code of Civil  Procedure.   The result  is that the revision petition when originally  filed was  triable under s. 115-Civil Procedure Code; it has  been tried  by the High Court under the amended s. 29(2)  of  the Rents, Rates Control Act. Indira Sohanlal’s case(1) has made a departure from what was apparently  a  settled rule.  The question in this  case  is whether  the  rule  in  Colonial  Sugar  Refining  Company’s case(2) will apply, or the exception engrafted upon the rule by the judgment in Indira Sohanlal’s case(1) will apply.  We direct  that this case be placed before a larger Bench.   It will  be open to the parties to argue such other  points  as arise out of the order of the High Court, but subject to the restrictions imposed by the order granting rule. The Judgment of the Court was delivered by 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 S. 29 of the Bombay Rents, Hotel  and  Lodging House  Rate,,  Control  Act  57  of  1947,  the  decree  was confirmed  on February 25, 1963 By S. 29(2) of that Act,  as it then stood, no appeal lay against any decision in  appeal under  sub-s.  (1)  from the order of  the  Court  of  First Instance.   The respondent accordingly moved the High  Court of  Gujarat by a petition under s. 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-s. (2) of s. 29 was replaced by the following’  sub- section :               "No  further  appeal  shall  lie  against  any               decision in appeal under sub-sec. (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 (1) [1955] 2 S.C.R. 1117. (2) [1905] A.C. 369.                             627 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 s. 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 pur-

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view of s. 12(3) (a) and not under s. 12(3) (b) of the  Act; and  (3)  whether in any event the tenant having  failed  to observe the conditions of the tenancy was disentitled to the protection  either,  under s. 12(1) or s. 12(3) (b)  of  the Act, and reversed the order   of  the  appellate  court  and decreed the respondents suit..       With    special  leave, the appellant has appealed to this Court. This  Court in Vora Abbasbhai Alimahomed v.  Haji  Gulamnabi Haji Safibhai(1) held that in a petition under s. 115 of the Code of Civil Procedure from an order made by the  appellate court     under  s.  29 of Bombay Act 57 of 1947,  the  High Court had no power to set aside the order merely because  if 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 s. 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 s. 115 of the  Code of Civil Procedure. 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 amendment 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 Subbiah  Choudhurt(3);  and Nana Bin Aba v. Sheku Bin Andu(4). In  the alternative counsel contended that the order of  the appellate court which had acquired finality, subject to  the exercise of the limited jurisdiction by the High Court under s. 115 of the (1)  [1964] 5 S.C.R. 157. (3)  [1957] S.C.R. 488. (2)  [1905] A.C. 369. (4)  I.L.R. 32 Bom. 337 628 Code  of  Civil  Procedure could not, in the  absence  of  a provision in the Amending Act making the amendment expressly or by necessary implication retrospective, ’be set aside  in exercise  of the jurisdiction conferred upon the High  Court by  s. 29 (2) of the Amending Act enacted after the date  on which the judgment of the appellate court was delivered.  We do  not  think it necessary to express any  opinion  on  the first  question,  because, in our judgment,  on  the  second point raised by counsel, the appeal must succeed. The  suit out of which this appeal arises was filed  by  the respondent  on July 22, 1958; it was decided on October  28, 1961; the appellate court decided the appeal on February 25, 1963  and  the Amending Act 18 of 1965 came into  effect  on June  17, 1965.  The High Court exercised  the  jurisdiction invested  by Act 18 of 1965 in respect of a  judgment  which had  become final a long time before that Act.  It  is  true that  this Court in Indira Sohanlal v. Custodian of  Evacuee Property,  Delhi & Others(1) distinguished the  judgment  of the  Judicial Committee in the Colonial Sugar  Refining  Co.

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Ltd.’s case (2) and observed at p. 1133               "...........it appears to be clear that  while               a  right  of appeal in respect  of  a  pending               action   may  conceivably  be  treated  as   a               substantive  right vesting in the litigant  on               the  commencement of the action-though  we  do               not so decide-no such vested right to obtain a               determination  with the attribute of  finality               can  be predicated in favour of a litigant  on               the  institution of the action.  By  the  very               terms of section 5-B of East Punjab Act XIV of               1947, finality attaches to it on the making of               the  order.   Even if there be,- in  law,  any               such   right  at  all  as  the  right   to   a               determination with the attribute of final , it               can in no sense be a vested or accrued  right.               It does not accrue until the determination  is               in fact made, when alone the right to finality               becomes an existing right as in....." In  Indira Sohanlal’s case(1), the Court was dealing with  a case  in which by amendment of statute, the  finality  which would  but  for the amendment have attached was  taken  away before  the order was made.  This Court in Dafedar  Niranjan Singh and Another v. Custodian Evacuee Property (Punjab) and Another(3) distinguished Indira Sohanlal’s case(3) and  held that  an order which had become final under a  provision  of the  law  could  not be affected  retrospectively  under  an Amending  Act  so as to deprive the order  of  its  finality acquired under the original provision.  In Dafedar  Niranjan Singh’s  case(3) an order releasing the property in  dispute was  passed  by  the Custodian  of  Evacuee  Property  under Patiala  Ordinance  No. IX of 2004 Samvat.   No  appeal  was filed against (1) [1955]2S.C.R.1117. (2) [1905]A.C.369. (3)  [1962] 1 S. C. R. 214.                             629 the  order  of  the Custodian and it became  final  on  that account.   The order was however set aside by the  Custodian in   exercise  of  jurisdiction  under  s.  58(3)   of   the Administration  of  Evacuee Property Act 31 of  1950.   This Court held that since the order had become final in exercise of  the jurisdiction subsequently conferred. in the  absence of  any  positive indication giving s.  58(3)  retrospective operation,  the finality of the previous order could not  be taken away. Counsel  for the respondent relied upon a judgment  of  this Court  in  Moti  Ram v. Suraj Bhan and  Others(1)  in  which following  lndira Sohanlal’s case (2) it was held  that  the High  Court  could  in exercise  of  jurisdiction  under  an Amending Act enacted after the litigation was commenced, set aside  an order which, according to the law in force at  the date  when the litigation was commenced, was not subject  to the  jurisdiction of the High Court.  In Moti Ram’s  case(1) an application for eviction of the appellant from a shop was made  in  August 1956 under s. 13 of the East  Punjab  Urban Rent Restriction Act, 1949.  An appeal was provided under s. 15  of  the Act from the order of the Rent  Controller,  and sub-s.  (4)  of  s. 15 provided that  the  decision  of  the appellate authority, and subject only to such decision,  the order of the Controller shall be final.  By Amending Act  29 of  1956  which came into force on September 24,  1956,  the High Court was empowered to call for and examine the records relating  to any order passed under the Act  for  satisfying itself  as to the legality or propriety of such order.   The

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landlord’s application was dismissed by the Rent  Controller and  in appeal the appellate authority confirmed the  order. Thereafter on the application of the landlord the High Court reversed the order.  This Court rejected the contention that the High Court had no jurisdiction to entertain the revision application under s. 15(3) as amended.  The decision brought before  the High Court in exercise of its revisional  juris- diction  under s. 15(5) of the amended Act was delivered  on August 19, 1958, after amendment of the Act on September 24. 1956.   On  the  date on which it was made,  the  order  had acquired  no finality, for it was subject to an order  which may  be passed in a revision application which may be  filed before  the  High Court under the amended Act.   Moti  Ram’s case(1) has, therefore, no application to this case. Counsel  for the respondent urged that the extension of  the jurisdiction of the High Court by s. 29(2) of Bombay Act  57 of 1947 as amended by Gujarat Act 18 of 1965 related not  to any right in existence, but to a matter of procedure, and on that account the Act as amended applied at the hearing,  and in deciding the revision application filed by the respondent the High Court (1) [1960]2S.C.R.896. (2) [1955] 2 S.C.R. 1117, 630 was  bound to apply the amended Act.  But when the  revision application  was  entertained under S. 115 of  the  Code  of Civil procedure, the High Court assumed to itself a  limited jurisdiction conferred by that section and in the absence of any  express  provision  made  in  the  Amending  Act,   the jurisdiction   conferred  by  that  section  could  not   be extended.   The  question whether the High  Court  could  in exercise of its jurisdiction set aside, modify or after  the decision of the appellate, court was not a matter of  proce- dure.  The order of the appellate court, subject to scrutiny by  the High Court within the limited field permitted by  S. 115  of  the  Code  of  Civil  Procedure,  was  final.    In conferring upon the High Court a wider jurisdiction for  the purpose of determining whether the decision of the appellate court was according to law, the Legislature did not  attempt to  legislate in the matter of procedure.   The  Legislature expressly  sought  to confer upon the High  Court  power  to reopen  questions which till then were to be deemed  finally decided. Counsel  for the respondent also submitted that s. 29(2)  as amended  was  intended  to  have  retrospective   operation, because  the Amending Act was in the nature  of  explanatory legislation.   There is nothing in the language of S.  29(2) as  amended, which may indicate that it was intended  to  be retrospective  in  operation.  Section 29(2) as  amended  in terms  confers jurisdiction upon the High Court to call  for the  record of a case for the purpose of  satisfying  itself that the decision in appeal was according to law, which  the High  Court did not possess before the date of the  Amending Act.  The amending clause does not seek to explain any  pre- existing legislation which was ambiguous or defective.   The power  of  the  High  Court  to  entertain  a  petition  for exercising revisional _jurisdiction was before the amendment derived  from  s.  115  Code of  Civil  Procedure,  and  the Legislature has by the Amending Act attempted to explain the meaning of that provision.  An explanatory Act is  generally passed  to supply an obvious omission or to clear up  doubts as  to  the  meaning of the previous  Act.   Section  29(2). before  it  was enacted, was precise in its  implication  as well  as in its expression : the meaning of the  words  used was  not  in  doubt,  and  there  was  no  omission  in  its

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phraseology  which  was  required  to  be  supplied  by  the amendment. The appeal is therefore allowed and the order passed by  the High  Court is set aside, and the proceeding is remanded  to the  High  Court to deal with and dispose  of  the  revision application on the footing that it is governed by s. 115  of the Code of Civil Procedure under which it purports to  have been  filed.  The costs of this Court will be costs  in  the High Court. R.K.P.S. Appeal allowed. 631