BHAGWANT RAMBHAU KHESE Vs. RAMCHANDRA KESHO PATHAK

JUDGEMENT

(1.) The short question which this appeal raises is whether a tenant who had been sued in ejectment by his landlord before the Bombay Rents, Hotel and Lodging House Rates Control Act, Bombay Act 57 of 1947, came into force is entitled to the protection of Section 12(3) of the said Act. The landlord had sued the tenant to recover possession of the premises let out to him on the ground that the tenant had committed default in the payment of rent and the tenancy had been duly determined by a notice given by the landlord in that behalf. The defence was that the rent had been regularly paid, that the notice which had been given by the landlord had been subsequently waived by him by accepting rent from the tenant and that the suit was not maintainable without the Rent Controller's certificate. The premises were let out to the tenant on a monthly rent of Rs. 7 inclusive of electricity charges. The trial Judge found against the defendant on all the pleas made by him. He, however, took into account the fact that the entire amount of rent due till the end of March 1946 and the costs of the suit had been produced by the tenant in the Court pending the hearing of the suit. He, therefore, held that the tenant had expressed his readiness and willingness to pay & so he refused to pass a decree for ejectment in favour of the landlord. He directed the defendant to pay the rent on or before the 10th of every month and added that if the defendant failed to pay the rent regularly, the landlord would be entitled to take possession by executing the decree. This decree was passed on 18-4-1946.

(2.) The landlord preferred an appeal against this decree. Pending the appeal Bom. Act 57 of 1947 came into force on 13-4-1948. The lower appellate Court agreed with all the findings of fact recorded by the learned trial Judge and would have reversed his decree but for the fact that a decision of this Court in -- 'Surjitlal Ladhamal v. Chandrasinh Manibhai', F. A. No. 365 of 1947 D/- 1-4-1948 by Weston and Dixit JJ. was cited before him on behalf of the tenant. This was-a judgment delivered by Weston and Dixit JJ-in - 'Surjitlal's' case in which they had applied, the provisions of the new Act to a first appeal which had arisen from a suit filed long before-the new Act came into force. Relying upon this judgment the lower appellate Court held, that the tenant was entitled to invoke the benefit of S. 12(3) of Bombay Act 57 of 1947; since the tenant had paid the whole amount of the rent due until the date of the trial Court's decree and the costs of the suit, the tenant was-naturally given the protection of the provisions of the said Sub-section. The result was that the appeal was dismissed and the decree passed by the trial Court was confirmed, though for entirely different reasons. This decree was-passed on 30-8-1948. It is this decree which is challenged by the landlord before us in the present second appeal.

(3.) Now, in dealing with the question as to-whether the provisions of Section 12(3) of Bombay Act 57 of 1947 apply in the present case it is necessary to refer to another decision of this Court and the amendment of the Act to which it led. After Weston and Dixit JJ. had delivered their judgment in - 'Surjitlal's case', F. A. No. 3G5 of 1947 (Bom) a Full Bench was constituted to consider the same question in - 'Nilkanth Ramchandra v. Rasiklal', 51 Bom LR 280 (FB). The point which the Full Bench had to consider was whether having regard to the provisions contained in the proviso to Section 50 of the Act the other provisions of the Act were applicable to the suits which were not required to be transferred under the said proviso. This-proviso as it originally stood required that alt suits and proceedings except appeals and execution proceedings as described in the proviso which were pending in any Court shall be transferred to and continued before the Courts named in the Act and that all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings. Weston and Dixit JJ. had held that though the proviso expressly excluded appeals and execution proceedings from its purview, there was no justification; for not allowing the application of the provisions of this Act to appeals, since appeals ore in substance a continuation of the suits themselves. The Full Bench was called upon to consider whether this view was right. The Full Bench held that this view was not justified by the words of the proviso to Section 50. According to the Full Bench the condition precedent for applying to the provisions of the Act to the suits, and proceedings was that these suits and proceedings should be pending in Courts from, which they were required to be transferred at other Courts named in the Act. Suits and proceedings which were not required to be transferred because, they were already pending in Courts which were competent to try them even under the new Act fell outside the scope of the proviso altogether and so there was no occasion to apply the provisions of the new Act to such suits. Incidentally the Full Bench also considered the question as to whether Section 12 was retrospective or not. Section 12(1) provides that the landlord would not be entitled to eject his tenant if the tenant ways or is ready and willing to pay 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 the Act. Sub-section (2) lays down that (SIC) suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106, T. P. Act. The Full Bench took the view that this Sub-section was clearly and unambiguously prospective, and that even if the other provisions of the Act were applicable to suits and proceedings which fell within the purview of the proviso to Section 50, Section 12(2) would not be applicable. In other words, though the other provisions of the Act may be treated as applicable retrospectively to suits & proceedings mentioned in the said proviso, this particular provision of Section 13(2) would be an exception and it would not apply retrospectively at all. The Pull Bench reached, the same conclusion with regard to the provisions contained in Section 12(3). This last sub-section lays down that no decree shall be passed in any such suit if at the hearing of the suit the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit. The view that this sub-section also was prospective was a necessary corollary of the conclusion that Section 12(2) was prospective. In terms Sub-section (3) refers to "such suits", meaning such suits as are mentioned in Sub-section (2), and if Sub-section (2) was prospective, there could be no doubt that Sub-section (3) is also prospective. In coming to this conclusion it wag pointed out in the judgment of the Full Bench that the Legislature may not have intended to make any distinction between suits which were required to be transferred and those which were not required to be transferred under the provisions of the proviso to Section 50, and it was conceded that the distinction which had to be made between the two classes of suits on the words used in the proviso really amounted to an anomaly. The learned Chief Justice who delivered the judgment of the Full Bench, therefore, suggested that Legislature may put an end to this anomaly by making suitable amendments in the said proviso.