PRASANNA DEV RAIKAT Vs. BISSESWAR DASS GUPTA

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for enhancement of rent of a tenure under Section 7, Ben. Ten. Act. The h trial Court decreed the suit in part allowing enhancement from 1345 B.S. Section The defendants therefore preferred an appeal. The lower appellate Court upon a construction put upon 8. 75A, Ben. Ton. Act, dismissed the suit, against that decision the plaintiff filed the present appeal. It has been urged before us by the learned advocate for the appellant that the interpretation put upon Section 75A, by the Court below was erroneous and that the suit had been dismissed upon a wrong view of the Section; that the decision in K. C. Mukherjee V/s. Mt, Ram Katan Kuer , referred to by the learned District Judge had no application to the present case. In our opinion the above contention seems to be correct. Section 75A (i) suspends all provisions of the Bengal Tenancy Act, relating to enhancement of rent for a period of ten years from 27 August 1937, that Section came into operation from 18 August 1938, the decree in the suit was passed on 18 November 1937 and signed on 23 November 1937 i. e., prior to the Section coming into force the decree in itself was a valid decree but only was inoperative for a period of ten years from 27 August 1937, under Section 75A (2) (a). When it was appealed against, it was liable to be set aside or modified or confirmed, the appeal Court however could not look into the matter as in the meanwhile Section 75A had been passed, the (result therefore should be that the appeal would remain pending so long as Section 75A (1) was in force.

(2.) The case in K. C. Mukherjee V/s. Mt, Ram Katan Kuer , in our opinion has no application to the facts of the present case. In that case there was a change with retrospective effect in the substantive law in respect of the validity of transfers of occupancy holdings by tenants prior to a certain date and under certain circumstances also subsequent thereto and there was no saving Clause or exception made in favour of pending suits in which the validity of any transfer was questioned. It was held that the suits were not excluded and were affected by the alteration in the law. Here it is a case merely of suspension of the law with effect from a certain date. The result in my view will be that during the period of suspension the matter cannot be dealt with in appeal. In the above view of the matter we set aside the judgment and the decree of the Court below and direct that the appeal be kept pending during the period that Section 75A (1) remains in force and thereafter disposed of in accordance with law. Parties in this appeal will bear their own costs. Pal, J.

(3.) This appeal is by the plaintiff in a suit for enhancement of rent of a tenure under Section 7, Ben. Ten. Act. The suit was instituted on 14 December 1936. The defendants resisted the claim alleging inter alia (i) that the rent of the tenure was fixed in perpetuity and was not liable to any enhancement (ii) that there existed a customary rate payable by persons holding similar tenures in the vicinity and that no enhancement exceeding this customary rate can be allowed. The learned Subordinate Judge on 18 November 1937, decreed the claim of the plaintiff in part and enhanced the rent from Rs. 86 per annum to Rs. 627-10-10 per annum with effect from 1345 B.S. (i.e., from 14 April 1938). The defendants preferred an appeal against this decree on 3 January 1938. During the pendency of this appeal the Bengal Tenancy (Amendment) Act, 1938 (Bengal Act 6 of 1938) was passed which by its Section 21 inserted in the Bengal Tenancy Act, the following sub-heading and Section, namely. Suspension of provisions relating to enhancement of rent 75A (1) All the provisions of this Act relating to enhancement of rent are hereby suspended for a period of ten years with effectfrom 27 August 1937. (2) (a) All decrees and orders enhancing rent passed under any of the provisions of this Act on or after 27 August 1937, and before the date of the commencement of the Bengal Tenanoy (Amendment) Act, 1938, are hereby declared to be inoperative from the date o? such decree or Order until the expiry of ten years referred to in Sub-section (1) (b) Any provision providing for enhancement of rent contained in any contract entered into between a landlord and a tenant during the period of ten years referred to in Sub-section (1) is hereby declared to be inoperative during the said period. (3) Notwithstanding anything contained in this Act or any other law, the period during which a decree, Order or contract is rendered inoperative under this Section shall not be taken into account in computing any period under the law of Limitation nor in construing the terms of the contract. This Bengal Act 6 of 1938, came into force on 18 August 1938. On 28 November, 1939 the appeal before the District Judge came up for hearing and the learned District Judge allowed the appeal and dismissed the suit solely on the ground that on a proper construction of the new Section 75A (1), Ben. Ten. Act, the claim for enhancement was not maintainable.