UDAY CHANDRA CHAKRAVARTY Vs. AMBIKA CHARAN CHAKRAVARTY

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for enhancement of rent by the landlords under Section 7, Ben. Ten. Act. The facts are that formerly the plaintiffs and the defendants together had a tenure under Bhulua Estate at a rent of Rs. 18-4-0 per annum. The tenure had been created in 1850 and it was held on ticca terms for four years and thereafter it was held at a rate of Rs. 18-4-0. The record of rights of the area was finally published in 1917. The landlords, the Bhulua zamindars made a case under Section 105 asking for enhancement of rent of the tenure. The suit was contested. While the matter was being contested by the defendants the plaintiff's predecessor made a compromise with the landlords and obtained an intermediate tenure at an annual rent of Rs. 36 and thereafter in March 1920 the case under Section 105 was withdrawn by the landlords. The present suit for enhancement was instituted by the plaintiffs in 1932. The trial Court decreed the plaintiffs suit in part. That decree was affirmed in appeal. The first point taken in appeal is whether the present suit is maintainable in view of the provisions of Section 109, Ben. Ten. Act. In 1920 when the case under Section 105 was disposed of, Section 109 provided that a civil Court shall not entertain any suit concerning any matter which has been the subject of an application made under Secs.105 to 108. That section however was amended in 1928 and the amendment came into force in February 1929. Since February 1929, Section 109 is in these terms: A civil Court shall not entertain any suit concerning any matter which has been the subject of a suit under Secs.10S to 108 provided that nothing contained in this section shall debar a civil Court from entertaining a suit concerning any matter which was the subject-matter of an application under Section 105 or S. 105-A, or of a suit under Section 106 if such application or suit has been dismissed for default or withdrawn or has not been finally adjudicated upon in any such proceeding or suit.

(2.) The Courts below have held that since the suit was instituted after February 1929, the case is to be decided according to Section 109 as it stands at the date of the suit and not as it stood before February 1929. It is urged by the learned advocate that by the decision of 1920 the defendants got a valuable right, namely, a right to hold the tenure free of any liability of enhancement by suit and that right vested in them in 1920 under Section 109 as it stood at the time and that vested right could not be affected by the amendment of 1929. Many reported cases were cited to illustrate what are considered to be vested rights which are not affected by amendment of a statute. As regards pending actions it has been repeatedly held that the right to an appeal in a pending action is not affected by any alteration in the right of appeal while the action is pending: Colonial Sugar Refining Co. Ltd. V/s. Irving (1905) A C 369; Keshoram Poddar V/s. Nundo Lal Mallick AIR 1927 P C 97. This principle would apply under old Section 109 in respect of all actions which were commenced before February 1929. In many cases it was held that suits which were instituted before February 1929 would be governed in all their stages including appeals by Section 109 as it stood before February 1929, that the amended Act could only apply when parties begin to move under it, but if a party moves before the amendment came into force then the law, as it stood before the amendment, would apply.

(3.) In pending actions, or if a party had taken a step provided by the law to enforce his right, there cannot be any doubt that the amended Act should not apply. In the present case the suit was instituted after the amended Act came into force and the principle is well settled that the parties are to be governed by the law as it stands at the date of the institution of the suit. It is urged however that the vested right having accrued in 1920 could not be affected by the amendment of 1929. That would depend upon the meaning of the amendment. The question in each case is whether the Legislature had sufficiently expressed an intention. We must look to the general scope of purview of the amended Act and at the remedy sought to be applied and consider what was the former state of the law and what it was that the Legislature contemplated. It appears that at one time there was a difference of opinion in this Court as to the provisions of Section 109 in the case where an application under Section 105 had been withdrawn without being adjudicated. The matter came before a Fall Bench in 1925 and it was decided by the Full Bench that Section 109 applied and the suit was barred and it was immaterial whether the application was withdrawn or not. The view of the Full Bench was approved by the Judicial Committee in Reshee Case Law V/s. Satish Chandra Pal AIR 1929 P C 134. Thereafter in 1928 the amendment was made whereby it was provided that Section 109 would not apply in a case where an application under Secs.105 to 108 was withdrawn or dismissed or otherwise not decided on the merits.