GANPATRAO DIYAJIRAO Vs. ABDUL HAMID HAJI AHMAD

JUDGEMENT

(1.) Both these revision applications raise common questions of law as to whether sec. 11(4) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter referred to as the Act applies to pending suits and therefore they are being disposed of by this common order. In C.R A. No. 759/65 the order of the trial Court has been confirmed by the District Court Surat and the view taken is that sec. 11(4) is merely a procedural section and therefore it can be invoked even in a pending suit. In C.R.A. No. 1018 of 1966 however the Bench of the Small Causes Court at Ahmedabad has confirmed the order of the Small Causes Court and has held that sec. 11(4) created new obligations and fettered the right of defence and it could not have retrospective operation to a pending suit. The said two orders are therefore challenged in the present revision applications.

(2.) Sec. 11(4) runs as under :-

(3.) Mr. Oza next argued that there is no question of any vested right involved in the present case as the amendment is only a procedural amendment. Mr. Oza further argued that this is a remedial statute in any event and therefore it must necessarily have a retrospective operation being both remedial and procedural. Mr. Oza relied upon the decision of the Supreme Court in Anant Gopal Sheorey v. State of Bombay A.I.R. 1958 S.C. 915 where the Supreme Court held at page 917 that no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. (See Maxwell on Interpretation of Statutes on page 225; Colonial Sugar Refining Co. Ltd. v. Irving 1905 A.C.369. In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective. That decision could not apply for the simple reason that the amendment in question is not a procedural amendment. It affects substantive rights as in fact the entire right of defence which was unfettered is now completely fettered. Mr. Shelat in this connection rightly relied upon the decision of the Supreme Court in H. K. Dada (India) Ltd. v. State of M. P. A.I.R. 1953 S. C. 221. At page 224their Lordships in terms pointed out that the pre-existing right to appeal Continues to exist must necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. The Supreme Court negatived the argument that the right of appeal remain intact even when It was whittled down by the provision of deposit. Such a provision was held not to introduce any new matter of procedure as it was calculated to deprive the appellant of the unfettered right of appeal and would be regarded as a merse alteration in procedure. The fact that the pre-existing right of appeal continued to exist must in its turn necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right-and it must govern the exercise and enforcement of that right of appeal and there could then be no question of the amended provision preventing the exercise of the right. On a parity of reasoning the defendant tenant had also vested right of defence which was completely unfettered and the provisions of the old law must be deemed to exist for the enforcement of that existing right which was completely unfettered and the new amendment cannot seek to deprive him of his right of defence.