NILKANTH RAMCHANDRA CHANDOLE Vs. RASIKLAL MULCHAND GUJAR

JUDGEMENT

(1.) THIS second appeal arises from a suit filed by the plaintiff, a landlord, to eject the defendant, his tenant, who is the appellant before us. Both the lower Courts took the view that the defendant was in arrears of rent to the extent of five months and that therefore he was not ready and willing to pay the rent, and passed a decree for ejectment in favour of the plaintiff. In this second appeal it has not been contended before us that the decree passed by the two lower Courts was not a proper decree. What has been contended before us is that in the events that have happened the decree can no longer stand and the same must be set aside.

(2.) THE decree of the trial Court was passed on November 14, 1946. Act LVII of 1947 came into operation on February 13, 1948, and it is urged before us that the rights of the parties are to be determined by the provisions of that Act and not of the Act which was in force when the suit was filed and the decree passed in favour of the plaintiff. Now, it is a well established canon of construction of every statute that ordinarily every legislation is prospective in its effect and it does not affect vested rights. But it is always competent to the Legislature to make any piece of legislation retrospective. But if the Legislature intends to do so it must do so by a clear intention or by necessary implication. In order to decide whether the new statute is retrospective, and if so, to what extent, we must look at the relevant sections. Now the most material section in this connection is Section 50 of the Act which repeals the earlier Bombay Rent Restriction Act, 1939, and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944. THEn the section goes on to provide that all suits and proceedings (other than execution proceedings and appeals between a landlord and a tenant) relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply and other suits and proceedings which are therein described and to which Part III applies, which are pending in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits and proceedings under the Act. It may be noted that this new Act gives jurisdiction to certain Courts to try proceedings under this new piece of legislation. THEn the section goes on to say that "thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings. " THErefore it is clear that in terms the provisions of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are transferred under the provisions of this section. THEre are two provisos to this section which provide that the orders passed or acts done by Controllers are deemed to have been passed or done under the provisions of the new Act and also all proceedings pending before the Controllers shall be transferred to and continued before the Controllers appointed under the new Act, as if they were proceedings instituted under the new Act before the Controllers. THErefore the retrospective effect of this new Act is clearly confined to what is expressly stated in Section 50 ' of the Act. Apart from the question of Controllers with which we, are not concerned, as far as suits and proceedings are concerned, the provisions of the new Act are made to apply only to those suits and procedings which are transferred and it is also expressly provided that execution proceedings and appeals are not to be transferred. THEn we turn to Section 12 of the Act which provides that a landlord shall not be entitled to recovery of possession of any premises as long as the tenant pays, or is ready and willing to pay, the amount of 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, THEn Sub-clauses (2) and (3) give special concessions to the tenant which he did not have under the old Act. Sub-clause (2) provides that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent and permitted increases due until the expiration of one month next after a notice in writing of the demand of the standard rent and permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882. Sub-section (3) precludes a Court from passing a decree for eviction even where a notice has been served under Sub-section (2) if the tenant pays or tenders in Court the said rent together with the costs of the suit. It is the provisions of this section that the appellant relies on and contends that if he pays or tenders in Court the arrears of rent a decree for eviction cannot be passed against him.

(3.) IT is pointed out that this construction results in this, that the pending proceedings, which are not transferred under Section 50, and which the Court before whom they are pending are competent to deal with, would not be governed by the provisions of the new Act. Therefore, this extraordinary result will follow that to the proceedings which are so transferred under Section 50, and are continued in the Courts which are given jurisdiction to try them under the new Act, provisions of the new Act will apply, but to the suits and proceedings which are not transferred, and which, continue in the Courts which are competent to try them, provisions of the old Act will apply. We agree that it is indeed a curious and unexpected result and we are certain that the Legislature never intended that only proceedings which are transferred should be governed by the provisions of the new Act. IT is obviously a case where the Legislature has failed to make its intention clear by using proper language. We also realise that serious injustice may result to the tenants whose cases are pending before different Courts in the District, who will not be able to get the benefit and advantages of this new legislation. We would, therefore, draw the attention of the Legislature to this anomaly that appears in the statute and we are certain that the Legislature will take the necessary steps to get right this omission which we are certain was never intended by it.