MOTIRAM GHELABHAI DEAD Vs. JAGAN NAGAR DEAD

JUDGEMENT

(1.) 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

(2.) The material facts giving rise to the question are these:by a registered lease dated 3-6-1957 (Ext. 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 defences that were raised by the defendant-appellant and decreed the suit for ejectment in favour of the respondents-plaintiffs on 28-2-1977. On 20-6-1977 the appellant-defendant challenged the decree by filing an appeal to the District Court, Navsari being Civil Appeal No. 60 of 1977.

(3.) While aforesaid appeal was pending in the District Court the State of Gujarat by its Notification dated 26th March, 1980 applied Part II 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 II 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.