Motiram Ghelabhai Vs. Jagan Nagar
& Ors [1985] INSC 41 (28 February 1985)
TULZAPURKAR, V.D. TULZAPURKAR, V.D.
KHALID, V. (J)
CITATION: 1985 AIR 709 1985 SCR (2)1051 1985
SCC (2) 279 1985 SCALE (1)360
ACT:
Bombay Rents, hotel and Lodging House Rates
Control Act, 1947, Section 50 Suit for possession under Transfer of Property
Act-Decreed for possession-Appeal filed and pending-Part 11 of the Act made
applicable to area where suit premises situated-Appellant whether entitled to
protection of 1947 Act-Effect of proviso para 2 of section 50 explained.
HEADNOTE:
The respondents-plaintiffs gave a lease of an
open plot lo the appellant-defendant for a period of 10 years for the purpose
of running a flour mill after making necessary construction thereon at a yearly
rent. In the lease-deed there was a clause for the renewal of the term, and
also that if it was not renewed, the lessors were given the right to recover
vacant possession on removal of construction at the expiry of the initial term.
There was no renewal of the term on the expiry of 10 years lease period and the
appellant-defendant was permitted to bold-over. Later by a notice nuder s. 106
of the Transfer of Property Act the respondent called upon the
appellant-defendant to vacate and hand-over vacant possession As the notice was
not complied with a suit in ejectment was filed against the a appellant-
defendant The trial court negatived all the daffiness that were raised by the
appellant-defendant and decreed the suit for ejectment in favour of the respondents-plaintiffs.
The appellant-defendant challenged the decres
by an appeal to the District Court and while the appeal was pending the State
by a Notification dated 26th March, 1980 applied Part II of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 to the village where the suit
premises were situated. The appellant-defendant with the permission of the
court raised the contention in the appeal that he was entitled to the
protection of Part II of the Act and since none of the grounds on which
eviction could have been made under Part II had been made out by the
respondents-plaintiffs they were not entitled to recover possession. This
contention was refuted ml behalf of The respondents-plaintiffs on the ground
that in view of the proviso to s 50 of the Act and particularly the latter part
thereof Part II of the Act had no retrospective operation so far as 1052
pending appeals were concerned and such appeals had to be disposed of as if
Part II of the Act was not applicable. The Assistant Judge took the view that
the proviso to s. 50 read with the latter part thereof expressly enacted that
pending appeals arising out of decrees or orders passed before the coming into
operation of the Act had to be disposed of as if the Act had not been passed and
therefore the appellant defendant was not entitled to any protection as claimed
by him and the respondents-plaintiffs were entitled to the decree for
possession and dismissed the appeal.
The second appeal of the appellant-defendant
to the High Court was summarily dismissed.
In the appeal to this Court on the question:
whether a pending appeal would be governed by the Bombay Rents, Hotel Rates and
Lodging House Rates (Control) Act, 1947 Upon the Part II of the Act being made
applicable in the area in which the suit premises were situated during its
pendency .
Dismissing the Appeal, ^
HELD: 1. Having regard to the two decisions
in Chandrasingh Manibhai and others v. Surjit lal Ladhamal Chhaabda and others,
[1951] 2 SCR 221 and Shah Bhojraj Kuverji Oil Mills and ginning factory v,
Subhash Chandra Yograj Sinha, [1962] 2 SCR 159 it is clear that sub-secs.
(2) and (3) of s. 12 are prospective but
sub-sec. (1) thereof is retrospective in operation. [1056B]
2. By the Bombay Act 3 of 1949 three changes
were made by the legislature, (i) it deleted the words other than execution
proceedings and appeals" appearing in brackets from the proviso and
inserted a new para graph at the end of that proviso dealing separately with
execution proceedings and appeals, (ii) it inserted the words 'or shall be
continued in such Courts as the case may be" in that proviso, and (iii) it
deleted the word "thereupon" from the proviso. the object of
amendments made at (ii) and (iii) was to remove the judicial confusion caused
by Courts taking conducting views on the question whether the Act (1947 Act)
applied only to transferred cases and not others. By the amendment made at i i)
what war there in the body of the proviso was relegated to a new separate
paragraph and no change was effected except that the effect of the wide
expression ' all suits and proceedings" was re-emphsised and further
clarified by using the words "execution proceedings and appeals arising
out orders, passed before the coming into operation of this Act" in the
new paragraph. [1060G-H; 1061B-C]
3. (i) The substantive part of s. 50, the
proviso thereto and the new paragraph added at the end of the proviso has to be
read as a whole to know the true nature and scope of the proviso. [1059B] (ii)
Under the substantive part of s. 50 on the coming into force of 11 the Act (the
1947 Act) the two earlier enactments (the 1939 Act and the 1053 1944 Act) stand
repealed. If nothing more was said then s. 7 of the A Bombay General Clauses
Act, 1904 would have come into play and would have had the effect of saving the
legal proceedings or remedies in respect of any right, privilege, obligation or
liability acquired, accrued or incurred under the repealed enactments. In other
words, all suits and proceedings including execution proceedings and appeals
arising therefrom which were pending on the relevant date and which were
governed by the provisions of the repealed Acts would have been saved and the
rights and obligations of the parties thereto would have been worked out under
the relevant provisions of the repealed Acts. But the proviso which provides
for special savings clearly indicates that pending suits and original
proceedings in which decrees and orders have not been passed alone should be
governed by the provisions of the Act and not execution proceedings and appeals
arising out of such decrees and orders passed before the coming into operation
of the Act. [1061E G; 1062A-B] (iii) The proviso was and has been enacted to
provide for special savings which suggests that it has not been introduced
merely with a view to qualify or create exceptions to what is contained in the
substantive part of s. 50. Secondly, it does appear that the Legislature while
framing the Act (the 1947 Act) was enacting certain provisions for the benefit
of tenants which conferred larger benefits on them than were in fact conferred
by the earlier enactments which were repealed, this is clear if regard be had
to the wider definition of the expression tenant' adopted in s. S (II) and
therefore, the Legislature thought it advisable that in regard to pending suits
and original proceedings of the description or categories specified therein, in
which the decrees and orders were not passed the provisions of the Act should
be made applicable. It is with this intention that the proviso to s. 50 has
been enacted in the manner it has been done. [1062C-E] (iv) While extending the
larger benefits of the 1947 Act to tenants the Legislature has used a very wide
expression, namely, "all suits and proceedings between a landlord and
tenant" so as to include within that category suits and proceedings filed
under the repealed Acts as also under the general law or Transfer of Property
Act [1062F] (v) The proviso read with the separate paragraph added thereto will
have to be regarded as an independent provision enacting a substantive law of
its own by way of providing for special savings. [1062G] Shankarlal Ramrotan v.
Pandharinath Vishnu, 53 Bom. L.
R. 319, approved.
In the instant case, an appeal (arising out
of a decree passed in a suit filed under the Transfer of Property Act) was
pending when Part II of the Act was made applicable to village Kalwada, (where
the suit property was situated) would be directly covered by the proviso read
with the separate paragraph added there(o and the appeal was liable to be
decided and disposed of as if the 1941 Act had not been passed, that is it had
to 1054 be disposed of in accordance with the law that was then applicable to
it. The Assistant Judge as well as the High Court were therefore right in
coming to the conclusion that the appellant-defendant was not entitled to any
protection of the 1947 Act as claimed by him. [1063B-Dl
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 239
of 1985.
S.H. Sheth for the Appellant.
P.H Parekh, and Miss Indu Malhotra for the
Respondents The Judgment of the Court was delivered by TULZAPURKAR, J. The
short question raised in this appeal is whether a pending appeal would be
governed by the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
(for short the Act) upon the Part II of the Act being made applicable to the
area in which the suit premises were situate during its pendency ? The material
facts giving rise to the question are these: By a registered lease dated
3.6.1957 (Exb. 75) the respondents-plaintiffs gave a lease of an open plot
admeasuring about 7,500 sq. ft. forming part of a non- agricultural land
bearing Survey No. 70/4/1 situated in village Kalwada in Valsad District,
Gujarat State to the appellant-defendant for a period of 10 years for the
purpose of running a flour mill after making necessary construction thereon at
an yearly rent of Rs. 101/-. There was a clause for the renewal of the term but
if it was not renewed the lessors were given the right to recover vacant
possession on removal of construction at the expiry of the initial term.
Admittedly, there was no renewal of the term
and therefore on the expiry of 10 years the lessors became entitled to recover
vacant possession on 3.6.1967 but the appellant- defendant was permitted to hold
over. By a notice under s.
106 of the Transfer of Property Act issued on
2.12.1970 the respondents-plaintiffs called upon the appellant-defendant to
vacate and hand over vacant possession of the suit plot after midnight of
2.6.1971 that is to say on 3 6.1971 but as the notice was not complied with a
suit in ejectment was filed against the appellant-defendant on 12.7.1972. Since
the suit premises were not governed by any rent legislation eviction on the
ground of determination of tenancy under Transfer of Property Act was available
to the respondents- plaintiffs. The trial court negatived all the defenses that
were raised by the defendant 1055 appellant and decreed the suit for ejectment
in favour of the respond- A dents-plaintiffs on 28.2.19?7. On 20.61977 the
appellant-defendant challenged the decree by filing an appeal to the District
Court, Navsari being Civil Appeal No. 60 of 1977.
While aforesaid appeal was pending in the
District Court the State of Gujarat by its Notification dated 26th March, 1980
applied Part 11 of the Act to village Kalwada where the suit premises were
situated. Thereupon the defendant-appellant with the permission of the court
raised the contention that he was entitled to the protection of Part II of the
Act and since none of the grounds on which eviction could be had by the
landlord under Part II had been made out by the respondents-plaintiffs they
were not entitled to recover possession of the suit plot by virtue of the
decree passed by the trial court. That contention was refuted on behalf of the
respondents-plaintiffs on the ground that in view of the proviso to s. 50 of
the Act and particularly the latter part thereof Part I I of the Act had no
retrospective operation so far as pending appeals were concerned and such
appeals had to be disposed of as if Part II of the Act was not applicable. The
learned Assistant Judge who heard the appeal took the view that the proviso to
s. 50 read with the latter part thereof expressly enacted that pending appeals
arising out of decrees or orders passed before the coming into operation of the
Act had to be disposed of as if the Act had not been passed and therefore the
appellant-defendant was not entitled to any protection as claimed by him and
the respondents-plaintiffs were entitled to the decree for possession; he
therefore dismissed the appeal. The High Court confirmed the view taken by the
learned Assistant Judge by dismissing the appellant-defendant's second appeal
summarily The appellant- defendant has challenged before us the aforesaid view
taken by the courts below in this appeal.
In support of the plea that his client's
appeal pending in the district Court was governed by Part II of the Act no
sooner that Part was made applicable to Village Kalwada, Counsel for the
defendant-appellant raised two contentions In the first place he urged that a
section could be prospective in one part and retrospective i n another and that
it has been so held in regard to s. 12 occurring in Part II of the Act by this
Court; he pointed out that in Chandrasingh Manibhai and others v. Surjit Lal
Ladhamal Chhabda and others(l) this Court has taken the view that (1) [1951] 2
S.C.R. 221.
1056 sub-secs. (2) and (3) of sec. 12 are,
having regard to the language employed therein prospective in operation and
therefore would apply to suits filed after the Act has come into force while in
Shah Bhojraj Kuverji Oil Mills and Ginning factory v. Subhash Chandra Yograj
Sinha(1) it has been held that sub-sec. (1) of sec 12, by reason of the words
used therein, is retrospective in operation and covered even suits pending on
the date when the Act is brought into force or is made applicable to an area
and all such pending suits would have to be decided as if the protection
afforded by sub-sec. (l) is available to the tenants who are parties to such
suits; he urged that such protection against eviction under sec. 12 (l) of the
Act would be available to the tenant independently of sec. 50 of the Act.
Further according to the learned Counsel since an appeal is a continuation of a
suit the protection of sub- sec. ( I ) would be available to the tenant in the
pending appeal He therefore, urged that since Civil Appeal No. 60 of 1977 was
nothing but a continuation of the suit which was pending at the time when sec.
12 was made applicable to Village Kalwada the defendant-appellant was entitled
to the protection of sec. 12(1) of the Act and the trial court's decree for
eviction obtained by the respondents-plaintiffs was of no avail to them.
Secondly, he contended that sec. 50 and the proviso thereto did not apply to
the present case at all; according to him that the proviso is not an
independent provision but is linked with the substantive enactment contained in
sec. 50 which deals with the repeal of two earlier enactments, namely, Bombay Rent
Restriction Act, 1939 and the Bombay Rents, Hotel Rates and Lodging House Rates
(Control) Act, 1944 and since the present suit was one under the Transfer of
Property Act and was not under either of the two repealed Acts there would be
no question of applying the proviso to such a suit or to any appeal arising out
of a decree in such suit. According to P him such suits and appeals arising
from decrees in such suits would be governed by sec 12(1) of the Act which has
retrospective operation, and since protection was available to his client in
the pending appeal the decree for ejectment ought to have been set aside by the
lower courts.
The question thus raised requires proper
construction being placed on the two relevant and connected provisions of the
Act, namely s. 12(1) and s. 50. These provisions run thus: (1) [1962] 2 S.C.R.
159.
1057
12. (1)- no ejectment ordinarily to be made
if tenant A pays or is ready and willing to pay standard permitted increases. 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.
50. Repeal. The Bombay Rent Restriction Act,
1939, and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act,
1944, are hereby repealed;
Provided that all suits and proceedings
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 or shall be continued in such Courts, as the case
may be, and all the provisions of this Act and the rules made thereunder shall
apply to all such suits and proceedings.
Nothing in this proviso shall apply to
execution proceedings and appeals arising out of decrees or orders, passed
before the coming into operation of this Act; and such execution proceedings
and appeals shall be decided and disposed of as if this Act had not been
passed.
So far as s. 12 of the Act is concerned, having
regard to the two decisions mentioned earlier it is clear that this Court has
ruled that sub-secs. (2) and (3) of s 12 are prospective but sub-sec. (1)
thereof is retrospective in operation and in that behalf the Court in Shah
Bhojraj's case (supra) has relied upon the difference in the language employed
in sub-sec. (2) and (3) on the one hand and sub- sec. (1) on the other. Since
sub-sec. (2) commences with the words, "no suit for recovery of possession
shall be instituted ......." and since sub-sec. (3) as it then stood
commenced with the words "no decree for eviction shall be passed in any
such suit .. " the 1058 Court took the view that such language plainly
indicated that these provisions w re intended to operate prospectively, that is
to say would apply to suits instituted after the coming into force of the Act.
but so tar as sub-sec (l) is concern the court pointed out that the point of
time when sub-sec. ( t) operates is when the decree for recovery of possession
has to be passed and that the language of that sub-section, which provides that
the landlord is not entitled to recover possession if the tenant pays or shows
his willingness to pay the standard rent and to observe the other conditions of
the tenancy, is such that it applied equally to suits pending when Part II
comes into force and those to be filed subsequently and is not limited only to
suits filed after the Act comes into force in a particular area and in fact the
Court in that case granted the benefit of the protection of sub-sec. (1) of
sec. 12 to the tenant who was a party to a suit which was already pending when
Part II of the Act was made applicable. to the area in which the suit premises
were situated. the decision in Shah Bhojraj's case therefore is a clear
authority for the proposition that sec. 12(1) of the Act has retrospective
operation and would apply to a suit which is pending when Part II comes into
force or is made applicable to a particular area where the suit premises are
situated but it must be observed that the question whether the protection of
sec. 12(1) of the Act would be available in regard to a pending appeal when
Part II is made applicable to the particular area did not arise for
consideration nor was decided in that case. Counsel for the appellant defendant
has however, urged that on the well accepted principle that an appeal is
nothing but a continuation of the suit the retrospective operation of s 12(i)
must be extended to such pending appeal especially as the languages thereof
must receive the same interpretation in regard to a pending appeal. We have no
doubt that by itself the provision would apply to pending appeals but the
provision has to be considered in the light of the other provision to be found
in s 50 and the proviso thereto read with the latter part thereof which
expressly deals differently with the aspect of applicability of the Act
especially Part II thereof to pending suits and original proceedings on the one
hand and pending execution proceedings and appeals on the other. That is why
counsel for the appellant-defendant raised the second contention that s. 50 and
the proviso thereto read with the latter part thereof did not apply to the
present case at all and in that behalf urged that the proviso M together with
the latter part thereof is not an independent provision 1059 but is linked with
the substantive enactment contained in s 50 that A is to say the proviso has
been inserted merely with a view to qualify or create an exception to what is
state in the main provision . The manner in which the two contentions were put
forward by counsel for the appellant- defendant clearly showed that he realized
that unless the present case was taken out of the purview of s 50 and the
proviso thereto read with the latter part thereof his client would not be able to
claim the benefit of the protection of s. 12(1) of the Act. Therefore, the two
contentions being inter-dependent it will be desirable to deal with the second
contention first. Of course, we shall also deal with his contention that the
defendant. appellant would be entitled to the protection of s. 12(1)
independently of and irrespective of whether his client's case is covered by s.
50 and the proviso thereof read with the latter part thereof or not.
Turning then to the second contention of
counsel for the appellant-defendant it is obvious that the question whether the
present case falls within or outside the purview of the proviso to s. 50
depends upon what is true nature and scope of the proviso introduced at the end
of s 0 ? Is it introduced merely with a view to quality or create exceptions to
what is contained in the main provision of s.
50) or does it g;- beyond that purpose and
enact a substantive law of its own by way of providing for special savings
following upon the repeal of the two earlier enactments, the 1939 Act and the
1944 Act ? That a proviso could be of either type was not disputed before us by
counsel for the appellant-defendant. In fact in Shah Bhojraj's case (supra)
this is Court after referring to two English decisions and a passage in Caries
on Statute Law (5th edition) at page 166 of the Report has observed thus:
"The law with regard to provisos is
well- settled and well-understood As a general rule, a proviso is added to
enactment to qualify or create an exception to what is in the enactment and
ordinarily a proviso is not interpreted as stating a general rule But provisos
are often added not as exceptions or qualifications to the main enactment but
as savings clauses, in which cases they will not be considered as controlled by
the section." The question is in which category the instant proviso
together with latter part thereof fall . It may be stated that this very
question- 1060 Was hotly debated before the Court in that case but was not
decided and kept open because of the view taken by the Court on the contention
pertaining to proper interpretation of s 12(1) of the Act and since the Court
held that s. 12(1) is retrospective in operation and covers suits pending on
the date when Part II was applied to the particular area it granted relief to
the tenant-appellant against eviction. We might observe, however, that the same
result would have obtained even if the case were considered under the proviso
to s 50 because under it suits and proceedings pending at the date when Part II
is made applicable are required to be decided by applying the 1947 Act to them.
Since the question raised before us relates to the applicability of the 1947
Act to a pending appeal we shall have to decide the question pertaining to the
true nature and scope of the proviso to sec. 50 in this case.
Before we deal with that question we might
indicate that the said proviso to s. 50 as it originally stood has undergone
certain amendments effected by Bombay Act 3 of 1949. The proviso as it
originally stood ran thus (omitting unnecessary parts):
"Provided that all suits and proceedings
(other than execution proceedings and appeals between a landlord and a tenant
relating to recovery or fixing of rent or possession of any premises to which
the provisions of part II apply ............. which are pending in any Court,
shall be transferred to and continued before the Courts which h would have
jurisdiction to try such suits or proceedings under this Act; and thereupon all
the preprovisions of this Act and the Rules made thereunder shall apply to all
such suits and proceedings." By the Bombay Act 3 of 1949 three changes
were made by the legislature. (i) it deleted the words "other than
execution proceedings and appeals" appearing in brackets from the proviso
and inserted a new paragraph at the end of that proviso dealing separately with
executions proceedings and appeals, (ii) it inserted the words "or shall
be continued in such Courts as the case may be" in the proviso and (iii)
it deleted the word "thereupon" from the proviso.
The object of amendments made at (ii) and
(iii) was to remove the judicial confusion caused by Courts taking conflicting
views on the question whether the Act ( 1947 Act) applied only to transferred
cases and not others- Previously the proviso stated that all suits and
proceedings of a certain category mentioned there.
1061 in "shall be transferred to and
continued" before the Courts which A would have jurisdiction to try them
under the Act and "thereupon" the provisions of the Act shall apply
to them and therefore some Courts took the view that the provisions of the Act
(1947 Act) will apply only to suits and proceedings which were so transferred
and continued and others held to the contrary. 'This conflict was set at rest
by these amendments. By the amendment made at (i) what was there in the body of
the proviso was relegated to a new separate paragraph and no change was
effected except that the effect of the wide expression "all suits and
proceedings" was re-emphasised and further clarified by using the words
"execution proceedings and appeals arising out of decrees and orders,
passed before the coming into operation of this Act" in the new paragraph.
Bearing in mind the aforesaid legislative
amendments we shall proceed to consider the question as to what is the true
nature and scope of the proviso. For that purpose it will be necessary to read
as a whole the entire provision, namely, the substantive part of s. 50. the
proviso thereto and the new paragraph added at the end of the proviso. So read,
two aspects stand out very clearly. In the first place, it is clear that under
the substantive part of s. 50 on the coming into force of the Act (the 1947
Act) the two earlier enactments (1939 Act and the !944 Act) stand repealed. If
nothing more was said then s. 7 of the Bombay General Clauses Act, 1904 would
have come into play and would have had the effect of saving the legal
proceedings or remedies in respect of any right, privilege, obligation or
liability acquired, accrued or incurred under the repealed enactments. In other
words, all suits and proceedings including education proceedings and appeals
arising therefrom which were pending on the relevant date and which were
governed by the provisions of these respective repealed Acts would have been
saved and the rights and obligations of the parties thereto would have been
worked out under the relevant provisions of the repealed Acts. But here a clear
intention to deviate from the normal rule which applies to the repeal of
enactments is clearly evinced by the Legislature by the manner in which the
proviso w-s enacted initially or as it now stands after the amendments. Either
under the proviso as it originally stood or under the new separate paragraph
enacted by way of an amendment the legislative intent was and is quite clear
that only suits and original proceedings between a landlord and a tenant (of
the description or categories specified 1062 therein) which were pending on the
relevant date are required to be decided and disposed of by applying the
provisions of the 1947 Act while execution proceedings and appeals arising out
of decrees or orders passed before the coming into operation of the Act are
denied the benefits of the provisions of the Act and have been directed to be
decided and disposed of as if this Act had not been passed, that is to say,
such execution proceedings and appeals would be continued to be governed by and
shall be disposed of in accordance with the law that was then applicable to
them In other words, it is clear that the proviso was and has been enacted to
provide for special savings which suggests that it has not been introduced
merely with a view to qualify or create exceptions to what is contained in the
substantive part of s. 50. Secondly, it does appear that the Legislature while
framing the Act (the 1947 Act) was enacting certain provisions for the benefit
of tenants which conferred larger benefits on them than were in fact conferred
by the earlier enactments which were repealed, (and this would be clear if
regard be had to the wider definition of the expression 'tenant' adopted in s.
5(11) of the Act) and therefore, the legislature thought it advisable that in
regard to pending suits and original proceedings also (of course of the
description or categories specified therein) in which the decrees and orders
were not passed to provisions of the Act should be made applicable. It is with
this intention that the proviso to s. 50 has been enacted in the manner it has
been done. What is more, while so extending the larger benefits of the Act (the
1947 Act) to tenants the Legislature has used a very wide expression, namely,
"all suits and proceedings between a landlord and a tenant" so as to
include within that category suits and proceedings filed under the repealed
Acts as also under the general law or Transfer of Property Act. Deliberate use
of such wide expression clearly shows that the benefit of the Act was intended
to be given to all tenants who were parties to all suits and proceedings filed
either under the repealed Acts or under the general law or Transfer of Property
Act and were pending at the relevant date. It is therefore, clear that the
proviso read with the separate paragraph added thereto will have to be regarded
as an independent provision enacting a substantive law of its own by way of
providing for special savings and (Counsel's contention that the same has been
added merely with a view to qualify or to create an exception to what is
contained in the main provision of s.
50 has to be rejected. We might refer to a
Bombay High Court decision in Shankarlal 1063 Ramratan v. Pandharinath
Vishnu(1) where a similar view of the proviso to s. 50 of the Act has been
taken and we approve the same.
Having regard to the aforesaid conclusion
which we have reached on the true nature and scope of the proviso to s. 50 of
the Act it would be clear that the present case, in which an appeal (arising
out of a decree passed in a suit filed under the Transfer of Property Act) was
pending when Part II of the Act was made applicable to village Kalwada, would
be directly covered by the proviso read with the 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, had to be disposed of in accordance
with the law that was then applicable to it In this view of the matter, we are
of the opinion that the learned Assistant Judge as well as the High Court were
right In coming to the conclusion that the appellant-plaintiff was not entitled
to any protection of the 1947 Act as claimed by him.
Counsel for the appellant-defendant however,
faintly urged before us that his client would be entitled to the protection of
s. 12(1 ) of the Act, (which has been held to be retrospective in operation)
independently of and irrespective of whether his case was covered by the
proviso to s. 50 read with the latter part thereof or not. It is impossible to
accept this contention for the simple reason that 8. 12(1) of the Act would
unquestionably be a general provision whereas the proviso to s. 50 read with
the new paragraph added thereto, which has now been held to be an independent
provision enacting substantive law in itself and which expressly deals with
pending matters (suits and other proceedings in contradistinction with
execution proceedings and appeals) would be a special provision contained in
the Act and obviously under the normal rule of interpretation the special
provision must prevail over the general and therefore if a case is covered by
the special provision the general provision will not be attracted to it The
Contention has therefore to be rejected- Before parting with the case we would
like to point out that Chandrasingh Manibhai's case (supra) was also a case
dealing (1) 53 Bom. L.R- 319 1064 with an appeal (arising out of a decree
passed on a date prior to the coming into force of the 1947 Act in a suit filed
under the Transfer of Property Act) which was pending at the relevant date and
the question was whether on the principle that the appeal was in the nature of
a rehearing of the suit the same should be decided in accordance with the
provisions of the 1947 Act which had come into force during its pendency and
this Court took the view that having regard to the proviso to s. 50 as it
originally stood 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 law in force at the time when the decrees were
passed and therefore, the tenant was not entitled to the protection of the 1947
Act and was liable to be evicted.
Really speaking this decision had concluded
the point raised before us in the present appeal- But since in Shah Bhojraj's
case (supra) a distinction was made between sub- sec. (1) of s. 12 on the one
hand and sub-secs. (2) and (3) on the other and it was held that the former
provision was retrospective in operation and the latter prospective, Counsel
for the appellant-defendant made valiant attempt to brings his client's case
within the purview of s. 12(1) by putting forward the plausible contention that
his case was not covered by the proviso to s. 50 read with the separate
paragraph added thereto at all on the ground that the said proviso together
with the new separate paragraph added thereto was not an independent provision
enacting any substantive law therein but was linked with the main provision
contained in s. 50 and had been introduced merely with a view to qualify or
create an exception to what is contained in the main provision but that attempt
has failed in view of our conclusion on the true nature and scope of the said
proviso read with the Dew separate paragraph added to it.
In the result, the appeal fails and is
dismissed but in the circumstances there will be no order as to costs.
N.V.K. Appeal dismissed.
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