CHANDRASINH MANIBHAI Vs. SURJIT LAL LDHAMAL CHHABDA

JUDGEMENT

(1.) The applts. are owners of a property known as "Bharat Bhuvan Theatre" at Ahmedabad. The resps. are the lessees of the said theatre. The term of the lease was to expire on 2-12-1945, unless the lessees gave to the landlords 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 13-12-1945 the applts. filed the suit out of which this appeal arises for ejectment of the resps. and for recovery of certain amounts. This suit was decreed on 14-10-1947 on the following findings : (1) that the resps, 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 resps. filed an appeal in the H. C. against the decree of the Joint Civil Judge on 10-11-1947. The appeal was heard by a Bench of the H. C. (Weston and Dixit JJ.) on 26-2-1948 and was decided on 1-4-1948. The judgment and decree of the Joint Civil Judge were reversed and the pltf's suit was dismissed. The H. C. affirmed the finding of the trial Court on the first point and held in agreement with it that the resps. had not proved that they gave three months previous notice in writing to the applts. for renewal of the lease as required by cl. 4 (2) of the lease. It reversed the finding of the trial Judge on the point that the resps. had committed breaches of the terms contained in cl. 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 [57] of 1947 the applts. were not entitled to recovery of possession of the suit premises. Being aggrieved by the judgment of the H. C. the applts. obtained a certificate and filed an appeal in this Court on 7-3-1949, and it is now before us for decision.

(2.) It was contended before the H. C. that the appeal being in the nature of a rehearing, it should be decided in accordance with the provisions of Act 57 [LVII] of 1947 which came into force on 13-2-1948 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 H. C. gave effect to this contention and set aside the decree made for ejectment of the respondents.

(3.) The learned counsel for the applts. challenged the decision of the H. C. before us on three grounds: (1) that assuming that the appeal had to be decided by the H.C. in accordance with the provisions of Act 57 [LVII] of 1947, the provisions of that Act had no application to pending appeals which had been excluded from its ambit ; (2) that Act 57 [LVII] of 1947 had been amended by Bombay Act III [3] of 1949 dud 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 57 [LVII] of 1947 ; and (3) that the H. C wrongly reversed the trial Court's finding that the resps. had committed breaches of the terms contained in cl. 2 (20) of the lease. The learned counsel for the resps. besides controverting the contentions raised on behalf of the applts. contended that both the Courts had erred in holding that the resps. had not proved that they exercised the option of renewal of the lease according to the stipulations contained therein.