RAGHU NATH RAY Vs. NITYANANDA SAHU

JUDGEMENT

(1.) THIS appeal raises a simple point of law which is covered by authority. The appellant was in occupation of a house belonging to the plaintiff, as a tenant paying a monthly rent of Rs. 30/ -, The plaintiff obtained an order of exemption, as required under Section 5, Orissa House Rent Control Act, 1947 (Act 5 of 1947), and after serving a notice to quit Instituted a suit for ejectment and compensation. The suit was dismissed on the ground that in, addition to the exemption order under Section 5 of the Act, an order under Section 13 permitting the plaintiff to sue was required before the plaintiff could institute the suit. In arriving at this decision the Court relied on a decision of this Court, reported in Krishna Chandra v. Sushila Mitra, 1951 Orissa 105 (AIR V 38) (SB) (A). Admittedly, the plaintiff did not obtain permission to sue, as required under Section 13 of the Act. The plaintiff appealed to the District Judge. The appellate Court held that the provisions of Section 13 did not affect the substantive right of the plaintiff to recover possession of the house and that the requirement of the permission referred to in Section 13 was abrogated by a subsequent amendment to the Orissa House Rent Control Act introduced by Act XI of 1951. Furthermore the learned Judge held that the provision requiring the permission of the Collector under Section 13 was a rule of procedure and was retrospective in operation. In this view he allowed the appeal of the plaintiff. It is against this decision that the defendant has come up in second appeal.

(2.) SECTION 13 of Orissa Act 5 of 1947 says that ho suit or proceeding by a landlord against a tenant for eviction of such a tenant shall be entertained by any Court unless the landlord has been permitted by the Controller by an order in writing to institute such a suit or proceeding, and has produced before such Court proof that such permission has been granted. The effect of this provision was considered in the Special Bench decision of this Court reported in 1951 Orissa 105 (AIR V 38) (A) (to which reference has been made above). The question was whether the landlord was required to obtain both a certificate under Section 5 and a permission as required under Section 13, or whether the permission as required referred to in Section 13 had reference only to the exemption granted by the Collector under Section 5. I held, in that case, that when an exemption under s. 5 (a) was obtained no permission under Section 13 was necessary while the majority held the contrary view. In order to get over the difficulty created by the majority view, the Legislature intervened and by Orissa Act XI of 1951 amended Section 13. Under the new section all that the landlord was required to do was to produce a certified copy of the order of exemption passed by the Controller under the second proviso to Clause (b) of Section 5, to institute a suit or proceeding. The effect of the amendment in 1951, is that the landlord has to obtain an order of exemption under the second proviso to Clause (b) of Section 5, and he need not obtain a further permission from the Collector before cuing.

(3.) ANOTHER principle which is equally well -established is that an appeal is but a reearing of the issue between the parties and the adjudication of the rights of the parties by the trial court does not become final until the appeal has been disposed of. The Court of appeal can, therefore, take into account acts and events, coming into existence subsequent to the decree of the trial Court. The duty of the Court is to administer the law as it exists at the date when the Court is adinistering it. In Lachmeshwar Prasad v. Kesh -war Lal, 1941 FC 5 (AIR V 28) (B) it was held that the appellate Court is competent to take into account legislative changes that took place since the decision was given and its powers are not confined only to see whether the lower courts' decision was correct according to the law as it stood at the time when that decision was given. A case very much like the present is to be found in the matter of, Tripura Modern Bank, Ltd. 1950 Cal 240 (AIR V 37) (C). Clause (12), Banking Companies Control Ordinance laid down that no Court shall entertain an application lor sanctioning a compromise or an arrangement between a Banking Company and its creditors unless the application made in respect thereof is accompanied by a certificate of the Reserve Bank stating that such compromise or arrangement was not detrimental to the interests of depositors of such company. Sircar J. refused the application of the petitioner as he had not obtained a certificate from the Reserve Bank of India. During the pendency of the appeal before the High Court the law on the point had undergone a change so as to permit of such applications for compromise being entertained by the Court without any report or certificate from the Reserve Bank of India, but under Section 45 of the Act as amended the Court was precluded from sanctioning a compromise or arrangement between a banking company and its creditors unless the compromise or arrangement was certified by the Reserve Bank. The High Court held that by this amendment no existing right or obligation was being impaired and that the later statute dealt only with the method and manner of invoking the Court's jurisdiction. Reliance was placed on an observation in Watton v. Watton, (1866) LR 1 P. & D 227 (D), which is worth quoting : 'And although the suitor may have a vested right to a decree, the mode and method in which he has. to approach the Court in order to obtainit, and the time within which that or any other step in the cause is to be taken are merely auxil -liary to that right and may be changed either by the Legislature or by rules and orders of Court without any infringement of the right itself.' It will be seen that the landlord's right to evict his tenant is governed by the provisions of the Transfer of Property Act and that the protection afforded to the tenant did not affect or alter the substantive right of the plaintiff. Protection against eviction was available to the tenant subject to his paying the rent regularly. But the tenant was not entitled to any protection in cases where the landlord wanted the house for his personal residence. Whether in a particular case the landlord required the house bona fide for his residence, or not, was left to be determined by the Collector who was empowered to give a certificate to that effect, before permitting the plaintiff to come to Court. As this related to the mode and method in which he could approach the Court, it was merely auxiliary to his right to institute a suit and did not touch his vested right as such. I would accordingly hold that the defendant acquired no vested right in the procedure created, by the House Rent Control Act, except the bare protection against eviction in an arbitrary manner. That this is the correct principle has been recognised in numerous decisions of the different Courts which I consider it wholly unnecessary to advert to. I would accordingly agree with the finding of the learned District Judge that the plaintiff was entitled to a decree having regard to the amended provisions in Section 13, Orissa House Rent Control Act, and that the case has been rightly decided by the lower appellate Court.