THELEPURATH MADHAVAKURUP Vs. KMUHAMMAD SUKRI SAHIB

JUDGEMENT

(1.) The appellant herein obtained a decree in ejectment against the respondent in respect of a shop belonging to the appellant which had been leased to the respondent. The suit in ejectment was filed in the District Munsiff's Court of Calicut some time in 1944. The precise date does not appear. During the pendency of the suit the Madras Non-Residential Buildings Rent Control Order was amended and the amended order came into force on the 11 July, 1944. An ex parte decree in ejectment was passed by the District Munsiff on the 8th September, 1944, and the property was delivered over to the appellant in execution proceedings on 15 September, 1944, but the execution application was not formally closed. Thereafter on 28 October, 1944, the respondent before me applied to the Court of the District Munsiff for re-delivery of the property and the same was ordered on 30 December, 1944. The District Munsiff held, upholding the contention of the respondent, that under Section 8(1) of the amended Non-Residential Building Rent Control Order, a tenant could not be evicted and accordingly held that the previous order directing delivery was wrong and the Court had jurisdiction to set aside that order and to order re-delivery as the execution petition had not been closed and the proceedings were still pending before the Court. The decree- holder took the matter in appeal to the Subordinate Judge of South Malabar at Calicut. The learned Subordinate Judge agreed with the view of the learned District Munsiff and held that Section 8(2) of the Control Order ousted the jurisdiction of the Civil Court to give delivery of the shop in spite of the fact that a decree for eviction had already been passed in respect of the same. The appeal was dismissed by him and this civil miscellaneous second appeal is against the said order.

(2.) It is contended before me for the appellant that, as the suit had been instituted prior to 11 July, 1944, the provisions of Section 8, Clauses (1) and (2) of the amended Control Order, which came into force on nth July, 1944, should not be applied but that on the other hand the law to be administered is the law as it was in force when the suit was instituted. He relies on the decision of Mockett, J., in Moothaliandan Chetty V/s. Venkatesan Chetty (1945) 1 M.L.J. 441, where the learned Judge has pointed out that the rights of parties prior to the amended Control Order were altogether different and there have been substantive changes in the new Control Order from the previous law and these changes in favour of the tenant take away pre-existing rights in favour of the landlord. It was held by the learned Judge that there was no indication in the amended Control Order that the terms thereof should be construed to operate retrospectively so as to affect the rights of persons in pending litigation at the time when the amendment came into force. He overruled the contention that the new Section 8(1) and (2) merely affected the procedure of the Court and not any substantive rights of parties. He expressly dissented from the obiter dictum of Chandrasekhara Aiyar, J., in an earlier case which took a different view.

(3.) The question before me is whether Section 8(1) and (2) of the amended Control Order should be so construed as to have retrospective operation and affect the rights of parties in pending litigation. In the particular case before me the suit was instituted much earlier than 11 July, 1944, and the landlord had apparently a good title to get a decree in ejectment as there was nothing to indicate that the tenant had obtained any rights under the provisions of the previous Control Order then in force. No doubt the decree in ejectment was one passed after 11 July, 1944. If there had been no amendment in the interval, the landlord, who had a right to obtain an executable decree in ejectment when the suit was instituted could have taken out execution proceedings and obtained delivery of possession from the tenant in due course of execution of the decree which he had obtained in the suit. Such a right could not be a mere matter of procedure which could be taken away by the amended provisions of the new Order unless there is any clear indication that the amended Order should apply so as to take away even existing rights of a substantive character, rights which had accrued prior to the coming into force of the new amendment, and indeed, rights for the enforcement of which an action had been instituted in the Civil Court. Section 8(1) no doubt is very wide in its terms and operates to prevent a tenant from being evicted, Whether in execution of a decree or otherwise and whether before or after the termination of the tenancy. The advocate for the respondent strenuously contends that these words are by themselves sufficient to indicate that the Legislature meant to take away pre- existing rights. He lays particular stress on the words " whether in execution of a decree or otherwise." It is however possible to give a meaning to these words without necessarily construing the section as taking away the rights of parties in an action instituted before the amendment came into force. It is possible to imagine cases where an action itself had been instituted after 11 July, 1944, and a decree obtained in the Civil Court. In such class of cases the decree in ejectment cannot be executed by the Civil Court but the landlord will have to make an application to the authorities under the Rent Control Order. It is not therefore as if the words " in execution of a decree " would become meaningless and inoperative unless the section were construed retrospectively. It must now be taken to be well settled that a decree in ejectment could be passed by a Civil Court and all that the Order provides is that during the subsistence of the Order, the Civil Court cannot execute the said decree but the landlord will have to take appropriate steps under the provisions of the Order. The Order itself is only for a short duration and if and when it is repealed or it expires without being renewed, the previous decree of the Civil Court will have to be executed by the Civil Court as in ordinary cases. If, therefore, it is possible to give a meaning and scope for operation for the words " in execution of a decree or otherwise " in Section 8(1) by confining it to cases where the decree is obtained in a suit instituted after 11 July, 1944, and if there is nothing else in the enactment to indicate that every pending legislation or pre- existing substantive rights of parties were intended to be affected by the amended Order, I must hold in accordance with the well-established rules of construction of statutes that the amended Control Order, Section 8, Clauses (1) and (2) has no application to the present execution petition and that the order for delivery originally made was right and proper. Reference may usefully be made in the discussion of the question as to how far statutes can be taken to have retrospective operation to the judgment in The United Provinces V/s. Mst. Atiqa Begum (1941) 1 M.L. J. Supp. 65 : (1940) F.C.R. 110 : 3 F.L J. 97. Sulaiman, J., points out that unless either expressly or by necessary intendment it is made out in the new legislation that it applies to pending proceedings as well, it ought not to be construed to have retrospective operation so as to affect the rights of parties in pending suits. Varadachariar, J., also refers to the same principle and explains the decision of the Judicial Committee in K.C. Mukherjee V/s. Mst. Ram Ratan Kuer (1935) 70 M.L.J. 195 : L.R. 63 I.A. 47 : I.L.R. 15 Pat. 268 (P.C.). In the result, this appeal is allowed with costs throughout.