THELEPURATH MADHAVAKURUP Vs. K. MUHAMMAD SUKRI SAHIB

JUDGEMENT

(1.) THE appellant herein obtained a decree in ejectment against the respondent in respect of a shop belonging to the appellant which had been leased to the respondent. The suit in ejectment was filed in the District Munsiff's Court of Calicut some time in 1944. The precise date does not appear. During the pendency of the suit the Madras Non -Residential Buildings Rent Control Order was amended and the amended order came into force on the 11th July, 1944. An ex parte decree in ejectment was passed by the District Munsiff on the 8th September, 1944, and the property was delivered over to the appellant in execution proceedings on 15th September, 1944, but the execution application was not formally closed. Thereafter on 28th October, 1944, the respondent before me applied to the Court of the District Munsiff for re -delivery of the property and the same was ordered on 30th December, 1944. The District Munsiff held, upholding the contention of the respondent, that under Section 8(1) of the amended Non -Residential Building Rent Control Order, a tenant could not be evicted and accordingly held that the previous order directing delivery was wrong and the Court had jurisdiction to set aside that order and to order re -delivery as the execution petition had not been closed and the proceedings were still pending before the Court. The decree -holder took the matter in appeal to the Subordinate Judge of South Malabar at Calicut. The learned Subordinate Judge agreed with the view of the learned District Munsiff and held that Section 8(2) of the Control Order ousted the jurisdiction of the Civil Court to give delivery of the shop in spite of the fact that a decree for eviction had already been passed in respect of the same. The appeal was dismissed by him and this civil miscellaneous second appeal is against the said order.

(2.) IT is contended before me for the appellant that, as the suit had been instituted prior to 11th July, 1944, the provisions of Section 8, Clauses (1) and (2) of the amended Control Order, which came into force on nth July, 1944, should not be applied but that on the other hand the law to be administered is the law as it was in force when the suit was instituted. He relies on the decision of Mockett, J., in Moothaliandan Chetty v. : AIR1945Mad386 where the learned Judge has pointed out that the rights of parties prior to the amended Control Order were altogether different and there have been substantive changes in the new Control Order from the previous law and these changes in favour of the tenant take away pre -existing rights in favour of the landlord. It was held by the learned Judge that there was no indication in the amended Control Order that the terms thereof should be construed to operate retrospectively so as to affect the rights of persons in pending litigation at the time when the amendment came into force. He overruled the contention that the new Section 8(1) and (2) merely affected the procedure of the Court and not any substantive rights of parties. He expressly dissented from the obiter dictum of Chandrasekhara Aiyar, J., in an earlier case which took a different view.

(3.) LEAVE granted.