Chandrasingh Manibhai & Ors Vs.
Surjit Lal Ladhamal Chhabda & Ors [1951] INSC 12 (23 February 1951)
23/02/1951 MAHAJAN, MEHR CHAND 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 February,
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 transferred
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.
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
appellants.
C.K. Daphtary (Sri Narain Andley, with him)
for the respondents.
1951. February 23. The judgment of the Court
was delivered by MAHAJAN J. The appellants are owners of a property known as
"Bharat Bhuvan Theatre" at Ahmedabad. The respondents 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 profits. 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 entitled 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 decision 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 appeals 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) 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 exercised
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 application 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 assumption 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
committed breaches of the terms of the tease. We should not however 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 instituted by a landlord against a tenant on the ground of nonpayment 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 recoverable
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 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
possession 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
proceedings under this Act, and thereupon all the provisions of this Act and
the rules made there under shall apply to all such suits and proceedings.
Provided further that-(a) every order passed
or act done by the Controllers 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 Controllers 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 because no question could arise of their
being transferred from one court to another and that an appeal being a continuation
of the suit and in the nature of a re-hearing, the provisions of section 12
should be applied to pending appeals. 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 provisions of
the new Act and the rules made there under are made to apply only to such suits
and proceedings which are transferred 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
thereupon all the provisions of this Act and the rules made there under 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 (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 described
as a section providing merely for transfer of pending cases to courts having
jurisdiction to deal with them.
It is on the other hand a" repeal"
section in the new statute. It repeals the two earlier statutes, and while
repealing 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 subsections (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 plaintiff's suit with costs.
Appeal allowed.
Agent for the appellants: Naunit Lal.
Agent for the respondents: Rajinder Narain.
Back
